A. R. Blase Co.

National Labor Relations Board - Board Decisions

Jun 27, 1963

143 N.L.R.B. 197 (N.L.R.B. 1963)

A. R. BLASE CO.
APPENDIX
197
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Rela-
tions Board and in order to conduct our labor relations in compliance with the
National Labor Relations Act, we notify you that:
WE WILL NOT unlawfully discourage our employees from being members of
Kentuckiana District Council of Furniture & Woodworkers, United Brother-
hood of Carpenters and Joiners of America, AFL-CIO, or any other union.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act to join a union of your choice or not to engage in any union
activities.
WE WILL offer Murray McConnell reinstatement to his former job and will
give him backpay for his loss of earnings.
WE WILL bargain collectively with the above-named union as your exclusive
representative concerning wages, hours, and working conditions.
All our employees are free to become or remain members of the Union named
above, or any other union, and they are also free to refrain from joining any union
unless in the future we should enter into a valid union-shop contract.
YOUNG MANUFACTURING COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify McConnell, in the event he is now serving in the Armed
Forces of the United States, of his right to full reinstatement upon application in
accordance with the Selective Service Act after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Transit
Building, Fourth and Vine Streets, Cincinnati, Ohio, 45202, Telephone No Dunbar
1-1420, if they have any questions concerning this notice or compliance with its
provisions.
August R. Blase, An Individual , d/b/a A. R. Blase Co. and
Freight , Construction , General Drivers , Helpers & Warehouse-
men, Local No. 287, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America . Case No.
20-CA-2138. June 27, 1963
DECISION AND ORDER
On June 7, 1962, Trial Examiner E. Don Wilson issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take certain affirmative
action as set forth in the attached Intermediate Report. Thereafter,
the Respondent filed exceptions and a supporting brief. It alleged
inter alia that the Trial Examiner had committed prejudicial error
in denying the Respondent's request for a 15-minute recess to study
the prehearing statement of the General Counsel's witness, Humberto
Garza, for the purpose of cross-examining said witness. Finding
merit in the Respondent's exception, the Board on July 31, 1962, di-
rected the General Counsel to make Garza's prehearing statement
143 NLRB No. 33.
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
available to Respondent, with leave for Respondent to move to reopen
the record and have the case remanded for the further examination of
Garza.
On August 22, 1962, the Respondent having timely moved to reopen
the record and the General Counsel having filed no opposition thereto,
the Board remanded the case for further hearing before Trial Ex-
aminer E. Doll Wilson to permit the further examination of Garza
with instructions for the submission of a Supplemental Intermediate
Report. Such hearing having been held, the Trial Examiner on
March 28, 1963, issued his Supplemental Intermediate Report adopt-
ing and reaffirming, on the record as a whole, his conclusions of law
and Recommended Order of his Intermediate Report of June 7, 1962,
as set forth in the attached Supplemental Intermediate Report.
Thereafter, Respondent filed exceptions to the Supplemental Inter-
mediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearings and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report and the Supplemental Intermediate Report, the excep-
tions i and briefs, and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner.
The Respondent contends that it was denied an opportunity to
pursue certain matters uncovered at the subsequent hearing through
further examination of other witnesses, and if permitted, would have
established that Respondent had not discriminatorily discharged
Hernandez and Garza. Specifically, the Respondent sought (1) to
establish that prior to the initial hearing there had been a conspiracy
Upon conclusion of the subsequent hearing and before the issuance of the Supplemental
Intermediate Report, the Respondent moved the Board on October 8, 1962, to reopen the
record and remand the case for further proceedings in light of the evidence adduced from
its further examination of Garza. On October 18 , 1962, the Board denied this motion
without prejudice and with leave for Respondent to renew its motion in exceptions to
the Supplemental Intermediate Report. In its exceptions , the Respondent renewed its
motion for a new trial on the grounds , among others , that ( 1) its prehearing motion for
production of the statements of Garza, Hernandez , Arballo, and Cochran was improperly
referred to a Trial Examiner for decision , and (2 ) the Trial Examiner's denial of its
motion as to Garza, Hernandez , and Arballo was not justified since, according to Respond-
ent's belief, the General Counsel had , prior to the hearing , furnished Garza and Hernandez
with copies of each other ' s statement and Garza with a copy of Supervisor Cochran's
statement . We find no merit In the above contentions . As to the first contention , Section
102 35 ( h) of the Board 's Rules and Regulations , Series 8, as amended, specifically author-
izes Trial Examiners " to dispose of procedural requests or similar matters, including mo-
tions referred to the trial examiner by the regional director ... ... Further, contrary to
the Respondent , we find nothing In this record which establishes that either Garza or
Hernandez was given the other ' s prehearing statement. The record demonstrates rather
that Garza and Hernandez were each permitted to see his own statement prior to the
hearing ; but there was no evidence that the General Counsel furnished Garza with a copy
of Cochran's affidavit.
A. R. BLASE CO. 199
between Hernandez and Garza to fabricate testimony, and to impeach
Hernandez' testimony by offering in evidence Hernandez' prehearing
statement; 2 and (2) to show that Garza changed his testimony with
respect to a conversation with one Garcia and as to the date of a
meeting at Palm Garden with Supervisor Cochran.
We find no merit in these contentions. With respect to (1), the
Trial Examiner found that the alleged planned "testimony project"
of Garza and Hernandez represented no more than the customary con-
duct of prospective witnesses to refresh their recollections of past
events before testifying, and that there was nothing in the record to
indicate that their testimony was fabricated. He also rejected Re-
spondent's offer of a portion of Hernandez' prehearing statement be-
cause Respondent had had ample opportunity to impeach Hernandez
at the first hearing but had failed to do so, and because the offer in-
volved an issue outside the scope of the Board's remand Order. As
to (2), the Trial Examiner found that there was nothing in the
record to indicate that Garza's testimony was willfully false, and that
any inconsistencies in Garza's testimony was due to oversight or fail-
ure of memory. Also, the Trial Examiner found that Garza's incor-
rect testimony regarding the August 18 conversation with Garcia was
neither material nor necessary for his ultimate findings. Accord-
ingly, as we find no basis for reopening the record, Respondent's
motion in that regard is hereby denied.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
2 The Respondent 's contention is addressed to that part of Hernandez ' testimony wherein
he stated that at a meeting with Cochran on August 19, 1961, Cochran stated to Hernandez
that "if I [Hernandez ] wanted to go back to work, be [Cochran ] wanted none of this
Union stuff going on any more," and that Cochran further said that `She would try to get
Humberto Garza back to work, but he had to blame somebody for the Union , so he blamed
Humberto."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Pursuant to due notice of hearing , a hearing in this case was held before Trial
Examiner E. Don Wilson at San Francisco , California, on January 10, 11 , and 12,
1962 . A complaint was issued by the General Counsel of the National Labor Rela-
tions Board, herein called the Board , on November 24, 1961 , upon a charge filed
on October 6, 1961, and an amended charge filed November 24, 1961, by Freight,
Construction , General Drivers, Helpers & Warehousemen , Local No . 287, Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, herein called the Union . The complaint , as amended at the hearing on
January 11 , 1962, alleges that August R. Blase , an individual, d/b/a A . R. Blase
Co., herein called Respondent or Blase , discriminatorily terminated the employ-
ment of Raul Hernandez and Humberto Garza because they engaged in union or
other protected concerted activities , in violation of Section 8(a)(3) and (1) of the
National Labor Relations Act, as amended , herein called the Act, and failed and
refused to rehire Raul Hernandez until August 23, 1961, and failed and refused
to rehire Humberto Garza until November 24, 1961, because they engaged in union
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or in other protected concerted activities , in violation of Section 8(a)(3) and (1)
of the Act , and between October 6 , and November 24, 1961 , Respondent failed
and refused to rehire Humberto Garza because he filed a charge under the Act,
in violation of Section 8(a)(4) and ( 1) of the Act. In substance , Respondent
denies the commission of any unfair labor practices , and affirmatively alleges that
Hernandez and Garza were "laid off" for economic reasons and recalled when
Respondent had work for them and knew they were available . General Counsel and
Respondent were represented by counsel and each fully participated in the hearing.
The Charging Party did not enter an appearance . Oral argument was heard at
the conclusion of the hearing. General Counsel and Respondent submitted briefs
which have been considered.
Upon the entire record and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is an individual proprietorship engaged in the processing and whole-
saling of potatoes and other produce at San Jose, California . During the past calen-
dar year, Respondent , in the course and conduct of his business operations , received
potatoes and other produce, valued at in excess of $50,000, directly from brokers
within the State of California , which potatoes and other produce were shipped to
said brokers from points outside the State of California . Respondent is an employer
engaged in commerce within the meaning of Section 2(6) and ( 7) of the Act.
The Board has jurisdiction of the subject matter of this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material, a labor organization within the
meaning of Section 2 ( 5) of the Act.
III. THE UNFAIR LABOR PRACTICES'
Raul Hernandez began his employment in Respondent 's warehouse in April 1961.2
Humberto Garza began his employment in the warehouse in May. Each, along
with fellow employee Arballo , had his employment with Respondent terminated
on July 19.
Arballo was discharged for cause and as to this there is no issue. General
Counsel contends Hernandez and Garza were discharged and not rehired or re-
instated for periods of time because they engaged in union activities and, in addition,
that rehiring and reinstatement of Garza was unlawfully delayed by Respondent
because Garza was named in a charge filed by the Union. Respondent denies that
either Hernandez or Garza was discharged . He contends that they were laid off
for economic reasons and that each was recalled when work was available for him
and Respondent knew he was available for work. Respondent further contends
that any delay in rehiring or reinstating Garza because of the filing of a charge
was very slight and occasioned by seeking legal advice and that in any event
Respondent recalled Garza as soon as Respondent knew he was available and Re-
spondent had work for him.
During their few months of employment prior to July 19, Hernandez and Garza
were , as Blase testified , "very satisfactory " employees . Also, they engaged in union
activities . They discussed organization in behalf of the Union with their fellow
employees and with their supervisor , William Cochran . Further they visited the
union office, obtained and signed authorization cards, obtained signatures on such
cards from fellow employees , and gave the cards to the Union. Garza was more
active than Hernandez and was the continuing moving spirit behind the union
'In making findings of fact in this section I have , as previously noted , considered the
record as a whole I have , generally, credited the testimony of Raul Hernandez and
Humberto Garza whose demeanor , candor , and straightforwardness impressed me favor-
ably Generally , have not credited the testimony of William Cochran , Respondent's ware-
house supervisor , where it has been substantially contradicted by the testimony of other
witnesses , because of Cochran ' s demeanor , evasiveness , self- contradiction in material
matters and his obvious desire to tailor his testimony so as to satisfy what he considered
to be the best interests of Respondent . His testimony against Respondent 's interest accord-
ingly has been weighed and evaluated. Credibility resolutions with respect to testimony of
other witnesses on material matters are made hereinafter.
2 Hereinafter , all dates refer to 1961.
A. R. BLASE CO. 201
activities of the four or six warehouse employees. The signed authorizations were
given to the Union by Hernandez and Garza the day before their termination.
Cochran, for a period of time, had advised Hernandez and Garza in some of their
union activities and was aware of their union activities. As established by testimony
and a pretrial statement of Cochran, he told Blase of union activities among the
warehouse employees and Blase became angry and upset. He told Cochran the
employees could join whatever union they wanted but he was "not going to be the
first packing shed to pay union wages unless all of the others had to pay." He told
Cochran he was not going to be the only one to go union so that the rest of the
employers could "push him out of business." Blase was upset about Garza, in
particular, in connection with the union activities, before Garza and the others were
terminated on July 19. Blase knew that Garza "was the main one pushing for
the Union." 3
Cochran reported the substance of his conversation with Blase to the warehouse
employees and said that they could waste their money anyway they wanted to.
At about the same time Blase became angry and upset over the warehousemen's
union activities, there was a fairly substantial decline in Respondent's income from
Respondent's combined warehouse and produce market business. The decline was
of comparatively short duration.
On July 19, at the end of the workday, Blase called Cochran aside and very shortly
thereafter, Cochran terminated the employment of Arballo, Hernandez, Garza. He
told them that work had been slow and that he would call Hernandez and Garza
if he needed them. He made it plain to Arballo that he was "through." Garza
inquired of Mrs. Blase, the bookkeeper, who gave him the checks for the three
men, when they would be recalled. She said she didn't know.
No prior notice of this termination was given to the employees. Cochran's and
Jose Garcia's 4 testimony to the contrary, specifically is not credited .5
On July 24, Cochran rehired a former employee, Francesca Garcia, wife of em-
ployee Jose Garcia. She did bagging, etc., but no heavy work such as could have
been done by Hernandez or Garcia. Cochran decided on July 19, he testified, to
rehire Francesca Garcia. Hernandez and Garza regularly had performed the type
of work done by Francesca Garcia and were also qualified to do heavy work which
she could not do. It was offered to neither of them. The rate and amount of pay
for the lighter work was somewhat less than what they had been receiving.
On the afternoon of July 28, Respondent received notice that his bids to supply
the commissary store at Fort Ord had been accepted. The "increase in business was
sizeable." The first shipment of goods was to be delivered at Fort Ord at 7 a.m.,
July 31, Monday. Blase testified that it "was very urgent that [Respondent] have
help quick in order to get the merchandise packed," and so advised Cochran on
July 28. Respondent did not directly or indirectly communicate with Hernandez
or Garza. Blase said that he gave "no thought" to the availability of the "very
satisfactory" Hernandez and Garza in spite of the urgent need for warehousemen.
Charles Perazza, the next employee hired after Francesca Garcia, was employed
August 1 (Tuesday) and the next employee hired was Antonio Trujillo, who was
hired August 5. Again, Respondent in no way communicated with Hernandez or
Garza at the times he was making these new hires.
Two or three weeks after July 19, Garza visited Respondent's warehouse. He
saw two new employees there, one of whom he identified as Perazza. The other
he did not identify but it presumably was Trujillo. He greeted Blase and the
warehouse employees. He had a short conversation with Cochran about a sweat-
shirt he had come to pick up. After this visit, Blase told Cochran, the latter testified,
he didn't want Hernandez or Garza in the warehouse "causing disturbances." They
had not caused any disturbances.
While the pleadings reflect that Hernandez resumed employment with Respond-
ent on or about August 23, the record indicates that he resumed such employment
6I have considered that Blase has been a member of the Union for many years and that
he has contractual relations with the Union covering his truckdrivers This is not neces-
sarily inconsistent with his proven economic desire, as an employer, not to pay union
scale to his warehouse employees or not to bargain with the Union regarding his ware-
house employees.
4 An employee of Respondent.
6 Blase testified that on the Monday or Tuesday preceding July 19 (a Wednesday) he
advised Cochran that "unless something developed soon that we would have to lay off a
couple of the men." Cochran denied he ever talked with Blase about work being slow or
about orders running out. I credit Cochran in this regard and find that Blase did not
advise Cochran as Blase testified.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on Monday, August 21. Hernandez, having received a message that Cochran
wished to see him, spoke to Cochran at the warehouse on Saturday, August 19.
According to the credited testimony of Hernandez, Cochran asked Hernandez if
he wished to come back to work, adding that there would be a 25-cent-an hour
raise. Cochran added that if Hernandez wanted to go back to work, "he wanted
none of this Union stuff going on any more." Hernandez replied that it was
"okay" with him. Cochran inquired if Garza were still around and inquired if he
was in Texas. Hernandez told Cochran that Garza was still in San Jose though
he was at that time (the weekend) visiting his parents in Sanger , California.
Cochran said he would try to get Garza back to work but that "he had to blame
somebody for the Union," so he had put the blame on Garza. From time to time
thereafter, Cochran inquired of Hernandez how Garza was doing.
Late in September, Garza met Cochran, in the company of other employees of
Respondent, in a beer parlor near Respondent's warehouse. Respondent's employees
regularly visited there on Friday afternoon to cash their checks and have some
beer. The meeting appears to have been casual. Cochran inquired whether Garza
would like to go back to work for Respondent. When Garza said that he would,
Cochran said he was not too sure he could get Garza back to work. Garza asked
why and further asked, "Did you blame the whole Union deal on me?" Cochran
stated that he had to in order to get Hernandez back. Cochran said he was not
sure he could get Garza back "because of the Union deal."
At this meeting, Garza, who had shortly before taken a test in connection with
a possible enlistment in the Navy, was asked by Cochran if he were going into the
Navy. Cochran stated that Blase had received a letter from the Navy inquiring
about Garza. Garza said he was not going into the Navy and if Cochran could get
him back to work, he would work until the "Draft" got him.6
On October 6, the Union filed the original charge naming Garza as one of the
discriminatees
At the hearing, Cochran fixed various dates ranging from October 6 to some-
time in November as to when he first learned that such a charge had been filed
against Respondent. A copy of the charge was mailed to Respondent on October 6
and presumably was receivd by Respondent on October 7. Cochran had a "free
hand" in hiring and firing warehouse employees and the record makes clear that he
was in charge of the warehouse operations. It is reasonable to assume that Blase
would have brought this charge to the attention of Cochran immediately upon its
receipt and I find that, as Cochran first testified, Cochran learned of the charge
about October 7.
Because a charge was filed, Cochran testified, he didn't think he could or should
rehire Garza, because he "would probably lost [his] job over it."
Garza, in late October, asked Blase for a job Blase told him to talk to Cochran
and Garza did so. Cochran said he didn't need anyone and would let Garza know
if somebody was needed. Garza so testified and I credit him.
On November 24 Garza was rehired. Between the date of Hernandez' rehiring
and Garza's return to work several new warehousemen were hired.
After July 19 Hernandez and Garza lived at the same address in San Tose as
they had before their termination, about 11/2 miles from the warehouse. Cochran
knew the address. They had a telephone listed under Hernandez' name. After
July 19 and before November 24, Garza made a couple of brief visits to his parents
in Sanger , California, but otherwise Hernandez and Garza were in San Jose at all
times.
Cochran claimed that he did not recall Hernandez and Garza at one time, because
he believed they were in Texas. He testified, contrary to Hernandez and Garza,
that they said they were going to Texas. This testimony of Cochran is not be-
lieved and the denials of Hernandez and Garza are credited.
Mrs. Blase testified that she believed Garza was in Texas because about a week
or two after July 19, she received a notice of the filing of a claim by Garza for
unemployment insurance from the Texas Employment Commission. Cochran fixed
the date of receipt of the notice as about 2 weeks after Garza picked up the sweat-
shirt This would have been at least 2 weeks after Perraza and Trujillo were hired
in early August. She testified that she "assumed" that Garza had filed in Texas since
the notice was mailed from Texas. She threw the notice away because she had no
protest. Respondent introduced into evidence a "Duplicate Copy" of the notice.
The "Duplicate Copy" states that the claim for unemployment insurance was filed
"through the Employment Security Agency of California " It also plainly states the
"The findings with respect to the September meeting between Garza and Cochran are
based upon the credited testimony of Hernandez and Garza and some admissions of
Cochran.
A. R. BLASE CO. 203
San Jose, California, address of Garza as that of the claimant When she wrote
for a duplicate copy, Mrs. Blase wrote to the Department of Employment in Sacra-
mento, California. At the hearing, Mrs. Blase testified that the original notice which
she destroyed did not give Garza's address in San Jose. In face of all the evidence,
documentary and otherwise, on this subject, I do not consider Mrs. Blase's recollec-
tion reliable, particularly since she was so unconcerned with the original that she
destroyed it. I am satisfied that the "Duplicate Copy" she asked for and received
was, in fact, a "Duplicate Copy" and that the original contained Garza's San Jose,
California, address. It will be recalled that about the time Mrs. Blase said the
notice was received from Texas, Garza was at the warehouse to pick up a sweatshirt
and greeted Mr. Blase and employees and chatted with Cochran.
A belief that Hernandez and/or Garza were in Texas is not a true reason for
failing to recall or rehire or reinstate Hernandez or Garza
It was made evident to Cochran by Hernandez on the Saturday before Hernandez
returned to work, that Garza was living in San Jose although temporarily visiting in
Sanger . Cochran testified , at one point in the record , and I find it to be a fact, that
he had work for Garza on the same day that he rehired Hernandez. He did not
offer work to Garza at that time, although he knew Garza was available for work.
The record contains no credible explanation by the Respondent for the failure to
offer work to Hernandez or Garza when he hired Francesca Garcia. Nor is there
a credible explanation of the failure to check on the availability of the "very satis-
factory" Hernandez or Garza on the Friday afternoon (July 28) that the Fort
Ord order was received urgently requiring more warehouse help immediately. A
determination not to recall Hernandez or Garza is revealed by the fact that although
more help was "urgently" needed to have the first Fort Ord shipment ready by
7 a.m., July 31 (Monday), the available Hernandez and Garza were not recalled.
The Fort Ord busness continued into August.
Another reason, advanced by Cochran, for failing to rehire Garza when Hernan-
dez was rehired (August 21) was that he believed Garza was working at Libby's
(a packinghouse). In fact, Garza worked at Libby's only from September 20 to
September 24. Cochran's testimony that Hernandez said to him on August 19,
that Garza was working at Libby's is not believed. Garza was not working at
Libby's on that date and there was no reason for Hernandez to say he was. Cochran
admitted that on August 19, Hernandez told him that Garza was around San Jose
and "still available for work."
Jose Garcia and his wife, Francesca, testified in a confused fashion and eagerly
responded to leading questions propounded by Respondent 's counsel . Jose Garcia
testified that Hernandez, on August 18, said that Garza was working at Libby's.
Mrs. Garcia after first testifying in effect that Hernandez said Garza was working
for a company known as CPC, then testified that neither her husband nor Hernandez
talked about Garza on August 18. Considering their demeanor and the quality of
their testimony, I do not credit the testimony of the Garcias
Cochran, in confused and self-contradictory testimony, finally stated that for a
period of time after early October, he did not rehire Garza because he believed
Garza was going to join the Navy and then believed that Garza was going to attend
an electronics school . This testimony is not credited . Garza made it clear to
Cochran in response to Cochran 's inquiry , in late September , that he was ready
and willing to return to work if Cochran could get him on. At the same time,
he told Cochran he was not going into the Navy. Though Garza may have said
something about studying electronics if he entered the Armed Services , he did not
tell Cochran he was going to go to an electronics school . These findings are based
upon the credited testimony of Hernandez and Garza which finds considerable
support in some of the testimony of Cochran.?
7 The testimony of 'Charles Miller appears to corroborate some other of the testimony
of Cochran He was present with a group of other employees and Garza and Cochran in
the beer parlor where the September meeting occurred, on the first Friday in October
The group was talking generally and drinking beer Cochran aad Garza talked from time
to time for about 15 to 30 minutes. Miller did not hear all that they said and, as would
he expected, listened to their conversation only "partially." None of their conversation
was directed at him. It appears that eight people at two booths were engaged in general
conversation and in drinking beer. Hernandez spoke to Cochran , Garza, and Miller, but
Miller did not recall what Hernandez said I find Miller was at least mistaken in his
recollection and am satisfied that although Garza may also have met with the group in
the beer parlor early in October , he did not indicate to 'Cochran at such time that he in-
tended to join the Navy or go to an electronics school . He had already , in late September,
made it plain to Cochran that he was not going into the Navy and wanted to return to
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The real reason for not recalling Hernandez and Garza earlier than the actual
dates of their recall emerges from the credited testimony of Hernandez and Garza,
corroborated by some of Cochran's testimony and portions of his pretrial affidavits
and by some of Blase's testimony.
Hernandez was not recalled prior to August 21, because Cochran had not, until
about that date, been able to persuade the angry Blase that Garza primarily, and
not Hernandez, was the moving force behind the employees' union activity. Cochran
testified that he had to put the blame for "the union deal" on Garza. Also, Hernandez
had to agree to Cochran's demand that he cease union activities.
Cochran affirmed the truth of a pretrial statement, given under oath, that "after
I terminated the three men, I did not rehire them as soon as there was a need for
additional men because I did not want to cause dissension at work . This was because
of the Union matter." 8 I credit this testimony.
Cochran testified that he felt "there would be resentment on Mr. Blase's part,
because of the Union matter." This was a reason why Cochran delayed rehiring
"very satisfactory" employees.
In a pretrial letter referring to the original charge, written by Blase to the Board
on October 18, Blase made various misstatements of fact. Contrary to his letter,
he was aware of the union activities of the warehousemen on July 19; Hernandez
and Garza were replaced less than a month after their terminations ; Hernandez
and Garza were not recalled "with the resumption of normal business "; Garza was
not replaced by Arturo Hernandez on August 28 because Garza joined the Navy,
as implied in the letter.
The falsity of various reasons advanced by Cochran and Blase for failing to
rehire Hernandez and Garza confirms the finding that the actual motive for not
rehiring them was illegally discriminatory.
That Cochran on August 19, imposed as a condition of rehiring Hernandez an
agreement not to engage in any more union activities further confirms the illegal
motivation for the failure to rehire prior to August 21.
Of course, another reason for failing to rehire Garza after October 7, was the
filing of the charge. Respondent urges that because the Union and not Garza,
rersonally, filed the charge, there can be no violation of Section 8(a) (4) involved.
Respondent is not correct. The mere fact that Garza did not file the charge does not
preclude a finding that the employer violated Section 8(a) (4) 9
There remains a question of whether Hernandez and Garza were discharged on
July 19, because of their union activities or whether they were laid off for economic
reasons on that date and were not recalled for a period of time because of their
union activities and, in the case of Garza, the filing of a charge.
In view of the decline in Respondent's business as reflected by the record, it may
be that Respondent did have valid reason to decrease his complement of warehouse
employees on July 19. But a necessity to reduce the number of employees by
three is not consistent with Cochran's testimony that on July 19 he decided to add
Francesca Garcia to the payroll . Absent a discriminatory purpose no reason ap-
pears for dispensing with the "very satisfactory" services of both Hernandez and
Garza. Surely one of them would have been kept on, absent discriminatory
motivation.lo
The entire record makes manifest that on July 19 Respondent intended perma-
nently to dispense with the services of Hernandez and Garza Respondent relented
as to Hernandez only after Cochran persuaded Blase that Herandez was not as
active in union activities as Garza and placed the blame for the union activities on
Garza. I find that Hernandez and Garza were discharged on July 19 because of
their activities in behalf of the Union and that Respondent did not intend to recall
them.
work for Respondent and stay at work at least "until the Draft got [him] " Garza never
indicated he was not available for work for Respondent. The Navy or electronics may
have been mentioned at a beer parlor meeting in October but not in the context recalled
by Miller.
8 Subsequently, Cochran attempted to explain away this testimony by saying that by
"the Union matter" he meant the filing of the charge I do not credit his explanation.
He had a need for additional men before the charge was filed
6 Stanislaus Implement and Hardware Company, Ltd., 101 NLRB 394 , 415; Briggs
Manufacturing Company, 75 NLRB 569, 572
m In this connection I have considered the testimony of Cochran that he "had to keep
more men on the payroll than he needed to do the work." He said Blase let him keep two
or three men that he didn't need on the payroll, "in case one got sick " This seems im-
probable and I do not credit Cochran on the point.
A. R. BLASE CO. 205
I further find Respondent did not reinstate or rehire Hernandez until August 21,
because Hernandez engaged in union activities.
I find Respondent did not reinstate or rehire Garza until November 24 because
Garza engaged in union activities and that between October 7 and November 24 an
additional reason for not reinstating or rehiring Garza was that he was named as a
discriminatee in a charge filed by the Union.
By discharging Hernandez and Garza on July 19 because they engaged in union
activities , Respondent violated Section 8 (a) (3) and ( 1) of the Act. By failing to
reinstate or rehire Hernandez until August 21, because Hernandez engaged in union
activities , Respondent violated Section 8(a)(3) and ( 1) of the Act. By failing to
reinstate Garza until November 24, because he engaged in union activities, Re-
spondent violated Section 8(a)(3) and (1) of the Act, and from October 7 until
November 24 Respondent violated Section 8(a)(4) and ( 1) of the Act by failing to
reinstate Garza because he was named in a charge filed by the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent , set forth in section III, above, occurring in con-
nection with the operations of Respondent, described in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative
of Section 8(a)(1), (3), and (4) of the Act, I shall recommend that Respondent
cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that Respondent discharged Hernandez and Garza on July 19, in
violation of Section 8(a)(1) and (3) of the Act, and failed and refused to reinstate
or rehire Hernandez until August 21 in violation of Section 8(a)(1) and (3) of
the Act, and failed and refused to reinstate or rehire Garza until November 24, in
violation of Section 8(a) (1) and (3) of the Act, and failed and refused to reinstate
or rehire Garza between October 7 and November 24, for the additional reason
that he was named in a charge filed by the Union , in violation of Section 8(a)(1)
and (4) of the Act, I shall recommend that Respondent make Hernandez and
Garza whole for any loss of pay they may have suffered by reason of the discrimina-
tion against them, by payment to each of a sum of money equal to the amount of
wages he would have earned as wages, from the date of his discharge to the date
he was reinstated, less his net interim earnings, and that the said loss of pay be
computed in accordance with the formula and method prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289, 291-294.
The discharge of and failures and refusals to reinstate or rehire Hernandez and
Garza, for the reasons hereinabove explicated, strike at the heart of the rights
guaranteed employees by the Act Respondent 's unfair labor practices indicate an
attitude of opposition to the purposes of the Act , generally. There is reasonable
ground to anticipate that Respondent will infringe upon other rights guaranteed
employees in the future unless properly restrained . I shall therefore recommend
an order requiring Respondent to cease and desist from infringing in any manner
upon the rights guaranteed by Section 7 of the Act.
On the basis of the foregoing findings of fact, and upon the entire record in the
case , I make the following.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of Section 2(2) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discriminatorily discharging and by discriminatorily failing and refusing
to reinstate or rehire Raul Hernandez and Humberto Garza, as found above, Re-
spondent has engaged in unfair labor practices within the meaning of Section 8(a) (3)
and (1) of the Act, and by failing and refusing to reinstate or rehire Humberto
Garza because he was named as a discriminatee in a charge filed with the Board, as
found above, Respondent has engaged in unfair labor practices within the meaning
of Section 8(a) (4) and (1) of the Act.
The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and upon the
entire record in the case, it is recommended that Respondent, his agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership of any of his employees in Freight, Construction,
General Drivers, Helpers & Warehousemen, Local No. 287, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any
other labor organization, by discharging any individual, or failing or refusing to
reinstate or rehire any individual, or in any other manner discriminating against any
individual in regard to his hire, tenure, or any term or condition of employment,
except as authorized by Section 8 (a) (3) of the Act.
(b) In any other manner interfering with , restraining , or coercing his em-
ployees in the exercise of their right to self-organization, to form, join, or assist the
above-named or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protection, and to refrain from any
or all such activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of employ-
ment, as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act:
(a) Make Raul Hernandez and Humberto Garza whole for any loss of earnings
suffered by reason of the discrimination against them in the manner set forth in "The
Remedy" section of this Intermediate Report.
(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 all other records necessary to determine the
amount of backpay due under the terms of this Recommended Order.
(c) Post in conspicuous places, including all places where notices to employees
are customarily posted, at his place of business in San Jose, California, copies of the
attached notice marked "Appendix." ii Copies of said notice, to be furnished by
the Regional Director for the Twentieth Region of the National Labor Relations
Board, shall, after being signed by a duly authorized representative of Respondent,
be posted by him immediately upon recipt thereof, and maintained by him for at
least 60 consecutive days thereafter in such conspicuous places. Reasonable steps
shall be taken by Respondent to insure that said notices are not altered, defaced or
covered by any other material.
(d) Notify the Regional Director in writing, within 20 days from the receipt of
this Intermediate Report and Recommended Order, what steps Respondent has
taken to comply herewith.iz
li In the event that this Recommended Order shall be adopted by the Board, the words
"A Decision and Order" shall be substituted for the words "The Recommended Order of
a Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and
Order "
12 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, I hereby notify my employees that:
I WILL NOT discourage membership in or activity in behalf of Freight, Con-
struction, General Drivers, Helpers & Warehousemen, Local No. 287, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization by discharging or failing or refusing
to reinstate or rehire any of my employees, or by discriminating in any other
manner in regard to their hire or tenure of employment or any term or condition
of employment, except to the extent permitted under Section 8(a)(3) of the
Act.
A. R. BLASE CO. 207
I WILL NOT fail or refuse to reinstate or rehire or otherwise discriminate
against any employee because he has filed a charge or is named as a discrimi-
natee in any charge filed with the National Labor Relations Board.
I WILL NOT in any other manner interfere with, restrain, or coerce my em-
ployees in the exercise of their right to self-organization, to form, join, or assist
the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, and to refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section 8(a)(3)
of the National Labor Relations Act.
I WILL make whole Raul Hernandez and Humberto Garza for any loss of
pay suffered as a result of the discrimination against them.
AUGUST R. BLASE, AN INDIVIDUAL,
D/B/A A. R. BLASE CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or coverd by any other material.
Employees may communicate directly with the Board's Regional Office, 830
Market Street, San Francisco, California, 94102, Telephone No. Yukon 6-3500,
Extension 3191, if they have any question concerning this notice or compliance
with its provisions.
SUPPLEMENTAL INTERMEDIATE REPORT
STATEMENT OF THE CASE
On June 7, 1962, Trial Examiner E. Don Wilson issued his Intermediate Report
and Recommended Order in this proceeding, finding that Respondent violated
Section 8(a)(1), (3), and (4) of the Act. Respondent having filed exceptions and
brief alleging among other things that I denied Respondent's request for a 15-
minute recess to study a pretrial statement of Humberto Garza, a witness for Gen-
eral Counsel, for the purpose of cross-examining Garza, the Board, on July 31,
1962, found merit in this exception, agreeing, in effect, that such denial was pre-
judicial error and a denial of due process. General Counsel was ordered to make
Garza 's pretrial statement available to Respondent and Respondent was afforded by
the Board on opportunity to move the Board to reopen the record within 10 days
after receipt of such statement.'
On August 13, 1962, Respondent moved the Board, pursuant to its order of July
31, to order the record in this case reopened and remanded to a Trial Examiner
"for the purpose of affording Respondent the opportunity to cross-examine further
General Counsel's witness Garza with respect to his testimony adduced on direct
examination."
1 At this supplemental hearing, counsel for General Counsel stated that I told counsel
for Respondent, apparently during. the off-the-record discussion, which immediately followed
the denial of the 15-minute recess, "Take as much time as you need. Let me know when
you are ready to proceed." The new counsel for Respondent who appeared at the hearing
on remand, stated he did not know how long the off-the-record period lasted after Re-
spondent's counsel at the original hearing obtained the original and a typed copy of Garza's
pretrial statement and before he cross-examined Garza when the hearing was again "on
the record ." Since the Board has already found that Respondent was prejudicially denied
due process in not being afforded sufficient time to study Garza's pretrial statement prior
to Garza's cross-examination, I consider the statement of fact made by counsel for General
Counsel to be irrelevant and immaterial. Certainly the Order of remand in no way
authorizes me to make a factual finding contrary to that already made by the Board.
Thus any evidence that Respondent, in fact, was afforded and exercised full and sufficient
opportunity to study Garza's affidavit at the original hearing would be irrelevant, in that
it would relate to no material Issue open to me for decision. For the same reason, I con-
sider my own clear recollection of what I said to counsel for Respondent at the beginning
of the off-the-record session and the length of time were "off the record," to be of no
moment In connection with this remand So, also, Respondent 's failure at any time during
the original hearing, to claim or suggest that he did not have sufficient time to examine
Garza 's statement is no proper concern of mine in this remand.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 22, 1962, the Board granted Respondent's motion and ordered a
further hearing before me "to permit the further examination of witness Humberto
Garza." [Emphasis supplied.] The Board remanded this proceeding to the Re-
gional Director to arrange notice of the further hearing and directed me, upon con-
clusion of the supplemental hearing, to prepare and serve upon the parties a Sup-
plemental Intermediate Report. Said Order contained further particulars not here
especially pertinent.
On September 7, 1962, the Regional Director issued and served upon all parties
a notice that a further hearing would be conducted before me on September 21,
1962, to permit the further examination of witness Garza.
The further hearing ordered by the Board was held before me on September 21,
1962, at San Francisco, California. General Counsel was represented by the same
attorney who represented General Counsel at the original hearing. Respondent was
represented by the same firm of attorneys but through an attorney other than the one
who appeared at the original hearing. The Union was unrepresented. General
Counsel and Respondent participated fully in the hearing.2 They waived oral
argument. They filed briefs which I have considered.3
Upon the entire record 4 and my observation of the witnesses,5 I hereby supple-
ment and modify my Intermediate Report, as follows:
FINDINGS OF FACTS
I GARZA'S 7 FURTHER EXAMINATION
Over objection of General Counsel, Respondent at the supplemental hearing,
was permitted to and did engage in a full and complete cross-examination of Garza,
not being limited to matters contained in Garza's pretrial statement. General
Counsel conducted a redirect examination of Garza.
Much of the cross-examination of Garza at the supplemental hearing was designed
to attack the credibility of Garza and to establish that the testimony of General
Counsel's witnesses at the original hearing was the result of a so-called "seminar"
or "testimony project" wherein such witnesses allegedly concocted fabrications and
rehearsed testimony to be given at the hearing. Respondent claims that Garza and
Hernandez 8 were "motivated by the windfall in the form of backpay which they
believed they would receive. " 9 Respondent contends that Garza's testimony
at the supplemental hearing establishes that Garza and Hernandez "and others
methodically and carefully worked out testimony to be presented at the first hearing"
and that they "created" testimony.
As at the original hearing, Garza was frank and honest in testifying at the sup-
plemental hearing. He impressed me as distinctly straight-forward and sincere.
He stated that he and Hernandez received copies of their pretrial statements from
the General Counsel prior to the original hearing. They discussed them and the
entire "case" at length with each other and at least on some occasions with four
other young men 10 with whom they shared a home. They discussed their prospec-
tive testimony with counsel for General Counsel. Garza believed that he "saw" the
pretrial statement of William Cochran who was in charge of Respondent's ware-
house and who testified at the original hearing. With copies of their statements
a Offers of evidence which concerned matters other than "the further examination of
witness Humberto Garza" were rejected in view of the limited scope of the Board's Order
So, too, did I refuse to rule upon Respondent's motions at the supplemental hearing fur-
ther to reopen the record and to grant a new hearing. It was my expressed view that the
limited nature of the remand did not confer upon me jurisdiction to rule upon the motions
Assuming I was in error and that, in fact, I possess jurisdiction under the Order of re-
mand, or otherwise, I deny the motions
3 General 'Counsel's motion to correct the transcript which I have marked Trial Ex-
aminer's Exhibit No 1, is unopposed. It is granted Other errors not substantially affect-
ing the sense of the transcript have been noted but I deem it unnecessary to correct them.
4 The entire record has been reexamined and reappraised.
5 The passage of time has in no way dimmed my recollection of the demeanors of the
witnesses.
"Hereinafter, all dates refer to the year 1961.
4 Gai za was a civilian when he testified at the original hearing When he testified at
the supplemental hearing he was a private in the United States Army, having enlisted
s The alleged discriminatees.
0 Reinstatement has not been In Issue.
10 One was the brother of Garza Another was the brother of Hernandez The other two
were brothers of each other but apparently not related to Garza or Hernandez.
A. R. BLASE CO. 209
in their hands, Garza and Hernandez "discussed this whole problem" and "went back
through the whole story, the way it started and ended." They refreshed each other's
recollection concerning matters contained or not contained in or possibly con-
tradicted by their respective statements.ii Garza admitted that a reason for the
pretrial discussions was because "we don't want to lose the case." He said they
"went back through everything, and tried to remember everything that was true . . .
Respondent's contentions at the supplemental hearing and in his brief, with respect
to the pretrial conduct of Garza and Hernandez as summarized above, and as de-
tailed by the record, have been carefully considered and weighed. Conspiracies to
commit perjury, to "create" or alter testimony so as to pervert or conceal the truth
or otherwise to perpetrate a fraud upon justice are, unfortunately, not unknown.
But I do not find substantial evidence that any such conduct was engaged in by
either Garza or Hernandez. The evidence with respect to these discussions estab-
lishes that they, very much interested in the successful (to them) outcome of pend-
ing litigation, discussed with each other and their close relatives and friends and
counsel for General Counsel the events prior and subsequent to their terminations.
I find that, interested quasi-parties though they were, such discussions were in good
faith and intended for the legitimate purpose of refreshing their recollections in as
much detail as possible with respect to facts as they actually occurred Although
subjected to two searching and vigorous cross-examinations by two able attorneys,
Garza displayed an outstanding honesty and candor which negated any participation
in a scheme or "project" to have any witness testify to anything but the truth.
Garza's pretrial statement and a typed copy thereof were received in evidence.
Some matters concerning which Garza gave testimony were not referred to in his
pretrial statement which he swore was "true and complete to the best of [his]
knowledge and belief," at the time he signed it. Respondent contends that the lack
of completeness affects the credibility of Garza. I find that such omissions were
the result of oversight or failure of memory of Garza as of the date of the state-
ment. Certainly, it has not been established that Garza deliberately or for an
improper purpose concealed material or relevant information in making his pretrial
statement or that he did not in good faith believe that such statement was true
and "complete" at the time he swore to the truth of its contents.
Garza testified that on the afternoon of his termination he, alone, went to the
office and picked up his check and the checks of Hernandez and Arballo and gave
the latter two their checks. In his pretrial statement, he said, referring to Hernandez,
Arballo, and himself, "We went to the office, picked up our checks and left." I
credit Garza's testimony that his statement was incorrect in this instance because
of lack of memory. In any event, it is of no importance whether he or they got
their checks from the office.
At the original hearing Garza testified that he was present with Hernandez on
August 18, when Jose Garcia visited them in their home. He testified in detail that
he and Hernandez sat down, Garcia did not, they offered him a cup of coffee which
he refused, and Garcia told Hernandez that Cochran wanted to talk to him. Ac-
cording to Garza's testimony at the original hearing, he asked Garcia why Cochran
didn't ask for him and Garcia, "joking," said "You, they are going to put in
jail for starting the Union deal." Jose Garcia and his wife testified that on this
occasion they did not enter the Garza house but spoke to Hernandez alone, outside
the house. In my Intermediate Report I did not credit the additional testimony of
Garcia that on this occasion Hernandez told him Garcia was then working at Libby's.
Neither did I credit the testimony of Mrs. Garcia that on this occasion Hernandez
referred to C. P. C. in connection with Garza. I specifically noted that she con-
tradicted her husband by testifying that neither her husband nor Hernandez talked
about Garza. While I considered Garcia to be an agent of Respondent for the
purpose of letting Hernandez know that Cochran I wished him to return to work,
the evidence din not establish that he was an agent of or was in any way authorized
by Respondent to discuss with Garza any possible reemployment, or what might be
done to Garza because of his union activities. Thus, I made no finding as to his
alleged "joking" remark to Garza, since even if made it would in no way be binding
on Respondent. So, also, I considered it irrelevant whether Garcia was inside or
outside the house when he conversed with Hernandez. Cochran's message was
delivered to Hernandez by Garcia. Hernandez did not say Garza was working.
Those were the issues. I made no finding as to where the conversation between
"Respondent offered in evidence a portion of Hernandez' pretrial statement for the
purpose of impeaching the testimony of Hernandez Aside from the fact that there had
been a full and complete cross-examination of Hernandez at the original hearing, I re-
jected the offer because it involved an issue outside the scope of the Board's remand for
the purpose of further examining Garza
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Garcia and Hernandez occurred or whether Garcia and Garza conversed on Au-
gust 18. At this, the supplemental hearing, Garza testified that he was mistaken
when he testified Garcia came into his house on August 18 and at that time engaged
in the conduct and conversation as Garza testified at the original hearing He said
that the conversation with Garcia about Garza 's going back to work and his "union
problems" occurred on another occasion when Garcia visited the house and wanted
someone to interpret for him . 12 Garza stated that he discovered his testimony
was wrong and Garcia's correct , about 3 hours after he testified . He thereupon
told counsel for the General Counsel that he was wrong and Garcia was right.
Counsel for General Counsel said to him "that the trial counsel would understand
that , and Garcia could have been confused that night" and "that it was unimportant,
because it could have been misunderstood , that he could have gotten the dates
mixed up." Counsel for Respondent contends that Garza 's testimony that Garcia
came "into" the house on August 18 and on that date told Garza he'd be put in jail
for his union activities was not only false but, "Undoubtedly , the persons who
planned such testimony thought it would also help to establish the alleged antiunion
bias." 13 Counsel for Respondent also contends in his brief that counsel for Gen-
eral Counsel by permitting Garza's testimony respecting a conversation with Garcia
on August 18 to remain uncorrected was permitting "insidious false testimony" to
remain . First, I find Garza's original testimony with respect to a conversation with
Garcia on August 18 to be false in the sense that it was incorrect but not in the
sense that it was dishonest . Second, I have already noted that there is no evidence
that Garcia , a fellow employee , was ever authorized by Respondent to make a
statement to Garza either about future employment or his union activities or any
other matter . Consequently , it is plainly irrelevant and immaterial whether he
at any time made such statements to Garza and I make no finding that he did or
didn't make them. Third, I find no evidence that Garza's incorrect testimony in this
regard at the original hearing was "planned" by anybody for any purpose. I find
that he, in good faith , was in error and at his first opportunity forthrightly advised
counsel for General Counsel of his erroneous testimony in this regard . Fourth,
I reject Respondent's contention that counsel for General Counsel permitted "in-
sidious" false testimony to remain in the record . 14 There is no foundation in the
record for a finding that this incorrect testimony of Garza merits the word "insidious."
As with Garza , counsel for General Counsel might have advised counsel for Re-
spondent or me that Garza had testified erroneously or he might have recalled
Garza to correct his testimony . But he told Garza that the error was unimportant.
It was. It concerned a matter neither relevant nor material . No finding of anti-
union bias or refusal to reinstate Garza because of his union activities or threat to
jail Garza , properly could have been made if the basis of such finding were the
unauthorized statements of fellow employee Garcia. Corrected or uncorrected,
the testimony in question was valueless and any suggestion that Garza or counsel
for the General Counsel permitted it to remain for sinister purposes is unsupported
by the record.
In my Intermediate Report , I found that Garza and Cochran met at the Palm
Gardens "in late September " and that Garza at that time "made it plain to Cochran
that he was not going into the Navy and wanted to return to work for Respondent
and stay at work at least `until the Draft got him ."' Garza's pretrial statement
fixes the date of the Palm Gardens meeting as October 6 , one of the dates alleged
by Cochran and the date to which Miller testified . At the supplemental hearing
Garza stated that the October 6 date was "false," explaining that when he made
the statement he believed the date was correct.15 I consider it possible that such
meeting occurred on October 6, but I find it more probable that the meeting was
"The record is clear that Garcia "at times" used Hernandez and Garza to interpret for
him Garcia testified he visited their house, "at least once a month "
18 Reuben Reyes, who shared the house with Garza, testified that he was in the house
with Garza and Hernandez in "August" (date not further specified) when Garcia came in
the house. He did not hear any conversation . Hernandez , in his testimony, implied that
Garza and Reyes were present when Garcia told him to see Cochran He testified Garcia
said nothrong else "besides just normal greetings." Thus, Reyes gave little, if any, corrobo-
ration to Garza's original testimony and Hernandez contradicted a substantial portion of
it. Such testimony is not consistent with a "plan" to give false testimony
111 understand the word "insidious" to connote plots and devices to entrap and ensnare
or as having an effect more serious than would appear.
15 Cochran fixed a variety of dates for the so-called "first" Palm Gardens meeting, in-
cluding the middle and other parts of September.
VALENCIA BAXT EXPRESS, INC. 211
,on September 29, a "few days" after September 26 when Garza visited the Navy
recruiting center.
In my Intermediate Report I found that Hernandez and Garza had not said they
were going to Texas. I now find that they had said on several occasions that they
were going to visit Texas in December . I find they did not say they were going
to visit Texas in July, August, or anytime but December.
H. CONCLUDING FINDINGS OF FACT
Having restudied and reanalyzed the entire record in this proceeding and having
reconsidered the demeanor of all witnesses , I reaffirm all findings of fact made by
me in my Intermediate Report , except as modified herein . The entire record, par-
ticularly the credited portions of testimony of Cochran , makes inevitable a finding
that Respondent violated Section 8(a)(1), (3 ), and (4) of the Act as found in
the Intermediate Report . I again so find.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
I reaffirm my findings in the Intermediate Report with respect to the effect of
the unfair labor practices upon commerce.
IV. THE REMEDY
I shall recommend that the backpay to be paid to Garza and Hernandez also in-
clude interest at the rate of 6 percent per annum, to be computed in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716, decided since my Intermediate
Report. Otherwise; I recommend the same Remedy I did in my Intermediate Report.
CONCLUSIONS OF LAW
I reaffirm the Conclusions of Law as stated in my Intermediate Report.
RECOMMENDED ORDER
Upon, the basis of the above findings of fact and conclusions of law , and upon
the entire record in the case , I recommend the same Order as that recommended in
my Intermediate Report except that Hernandez and Garza are to be made whole in
the manner set forth in the "The Remedy" section of this Supplemental Intermediate
Report. Further, the Appendix is to be amended by substituting "60 consecutive
days from the date of posting" for "60 days from the date hereof."
Valencia Baxt Express, Inc. and Seafarers International Union
of North America, Atlantic, Gulf, Lakes and Inland Waters
District , Puerto Rico Division , AFL-CIO and Teamsters,
Chauffeurs, Warehousemen and Helpers , Local 901, IBTCW
& H of America . Case No. 2114-CA-1554. June 27, 1963
'DECISION AND ORDER
On March 5, 1963,. Trial Examiner Rosanna A. Blake issued her
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. Thereafter, the Respondent and the Intervenor filed ex-
ceptions to the Intermediate Report and supporting briefs,' and the
' The Respondent 's request for oral argument is hereby denied, as the record , including
the exceptions and briefs , adequately presents the issues and the positions of the parties.
143 NLRB No. 26.
717-672-64-vol. 143-15