Bentex Mills

National Labor Relations Board - Board Decisions

Sep 17, 1974

213 N.L.R.B. 296 (N.L.R.B. 1974)

296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bentex Mills and Osvaldo Rodriguez . Case 22- CA-5557 September 17, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On March 29, 1974, Administrative Law Judge Anne F. Schlezinger issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief. 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, as modified below. The Administrative Law Judge held, and we agree, that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging 11 employees after condon- ing their participation in an unauthorized work stop- page, involving some 40 others, and permitting all such employees to return to work. The Administrative Law Judge bottomed her decision on credited testi- mony concerning an exchange which occurred after Ben Fried, the Respondent's president, delivered an ultimatum to the assembled strikers that if they did not return to work within 5 minutes they would all be fired. According to credited testimony, Fried then stated, in response to a question as to what would happen if they did, that "no action would be taken against the employees." While we affirm the Administrative Law Judge's credibility findings in this regard, and share her view that the foregoing exchange underscores the clear in- tention of the Respondent to take no disciplinary ac- tion against any employees if they would all abandon their work stoppage, we find, on the record before us, that even without this testimony the General Counsel's burden of establishing condonation was substantially met by the uncontroverted evidence that employees were directed to return to work within 5 minutes , or face dismissal, and the fact that they did. In this respect, it is conceded that no effort was made by the Respondent to bar the return of those alleged to have been the instigators of the work stoppage, nor was the ultimatum couched in language which indi- cated that any employees were to be excluded from the implied general amnesty offered by the Respon- dent as an inducement to employees to return to work. Cf. Ohio Stove Company, 180 NLRB 868 (1970). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its order the recommended Or- der of the Administrative Law Judge and hereby orders that the Respondent, Bentex Mills, East Ruth- erford, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Administrative Law Judge: Upon a charge filed by Osvaldo Rodriguez, an individual on Au- gust 7, 1973,1 the General Counsel of the National Labor Relations Board, by the Regional Director for Region 22 (Newark, New Jersey), issued a complaint on October 18, alleging that Bentex Mills, herein called the Respondent, had engaged in certain unfair labor practices violative of Section 8(a)(1) and (3) of the National Labor Relations Act. In its answer, duly filed, the Respondent admits certain factual allegations of the complaint, but denies the commis- sion of the alleged unfair labor practices. Pursuant to notice, a hearing was held before me at New- ark, New Jersey, on December 5, 6, 7, and 10. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence.2 Subsequent to the hearing, briefs were filed by the General Counsel and the Respon- dent on or about January 14, 1974, which have been fully considered. Upon the entire record in this proceeding and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is, and at all times material herein has been , a corporation duly organized under, and existing by virtue of, the laws of the State of Delaware. At all times material herein, the Respondent has maintained its princi- pal office and place of business at East Rutherford, New Jersey, the only facility of the Respondent involved in this proceeding, at which it is engaged in the manufacture, sale, and distribution of knit fabrics and related products. In the course and conduct of its business operations, the Respon- 1 All dates hereinafter refer to 1973, unless otherwise indicated. 2 Counsel for Local 222 , International Ladies' Garment Workers Union, AFL-CIO, referred to herein as the Union, which has a collective-bargaining contract with an association of employers that includes the Respondent, made a limited appearance on the last day of the hearing, when representa- tives of the Union were testifying as witnesses for the Respondent. BENTEX MILLS dent annually manufactures, sells, and distributes, at said plant, products, goods, and materials valued in excess of $50,000, and ships products, goods, and materials valued in excess of $50,000 from said plant directly to points located outside the State of New Jersey. The complaint alleges, the Respondent in its answer admits, and I find, that the Re- spondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 222, International Ladies' Garment Workers Union, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Principal Issues The General Counsel contends that certain employees of the Respondent engaged in a work stoppage from about 12 noon until 12:05 p.m. on July 27, 1973; the president of the Respondent directed them to return to work within 5 min- utes, under penalty of discharge, and stated that no discipli- nary action would be taken if they complied; all the employees involved did thereupon immediately return to work; after its condonation of the employees' conduct, the Resondent later that day discharged 11 of these employ- ees;? and the Respondent by such discharges violated Sec- tion 8(a)(1) and (3) of the Act. The Respondent maintains that the work stoppage in violation of its contract with the Union was illegal; the Respondent, as well as representatives of the Union who were in the plant at the time, told the employees a stoppage would be illegal, but they stopped work nevertheless; the president of the Respondent directed the men to return to their work within 5 minutes or they would be discharged, but did not say that no disciplinary action would be taken if they complied nor otherwise indicate condonation of their conduct; and the 11 men were discharged because they were the instigators and leaders of the illegal activity. The principal issues, therefore, are whether the Respon- dent directed the employees to resume work in order to end the disruption of production, without indicating condona- tion of their work stoppage, and then lawfully discharged the 11 employees who instigated the illegal stoppage, or whether the Respondent, after condoning the conduct of all the employees involved in the work stoppage, thereafter discharged 11 of them for this conduct, in violation of Sec- tion 8(a)(1) and (3) of the Act. 3 The discharged employees named in the complaint are Luis Ferrer, Ama- do Isa, Jose Izquierdo, Pedro Morales, Jose Nunez, Mario Rodriguez, Ozval- do Rodriguez, Alfredo Sotolongo, Saul Vega, Juan Ramiro Valdez, and Luis Vasquez. The spelling of some of these names has been changed in accord with the record. B. The New Contract 297 The Union, which represents employees of a number of employers who are members of The New Jersey Double Knit Association, signed a new contract with the Associa- tion on July 15, 1973. The Respondent, which began opera- tions in 1968, and has about 800-900 employees, is a member of this Association. It is the practice of employers in this industry, including the Respondent, to have the knit- ting machines operate continuously with no shutdown for a lunch period. The employees in the knitting department eat at their machines, which can operate for a time automat- ically and shut off automatically if something goes wrong. It has also been the Respondent's practice to pay these employees overtime for working through the lunch period. In the new contract executed on July 15, the language of the overtime provision was changed. The Respondent inter- preted the change to mean that overtime was to be paid only after an employee had worked a 35-hour week. Accordingly, it posted a notice directed "To: All Union Members," dat- ed July 26 but providing that it was "EFFECTIVE: July 16, 1973," signed by Harman as manufacturing manager, Felix Nunez as employment manager, and Ana Chirichella as payroll supervisor, and stating in English: In accordance with the Union contract, overtime will be paid on a weekly basis. An employee must work 35 hours at regular time before he may receive overtime pay. The notice also contained a statement in Spanish, which the parties agreed at the hearing was correctly translated as follows: In accordance with our new union contract, overtime and time and one-half will be paid after completing 35 hours each week, which means; that you must work 35 regular hours to be eligible for time and one-half. If you miss one day of the week, the 35 hours will be made up from the overtime that you have worked. This change in policy, discontinuing overtime pay for lunch time work, decreased the earnings of those in the knitting department. The effect was shown in the paychecks they received on Thursday, July 26. Some employees questioned the payroll department about this, and were told their pay was computed correctly in accord with the terms of the new contract. They called the Union to protest this, and were told the Respondent was interpreting the contract incorrect- ly and union representatives would take care of the matter. There were meetings of some of the employees after their shifts ended to discuss the matter. On Thursday evening, July 26, representatives of the Union and the Association met to discuss certain matters, including the contract provision as to overtime. The Union maintained that the language change in the new contract had not changed the method of computing overtime pay, that the notice posted by the Respondent was in error, and that, unless this was changed, there was no contract. The Respondent, after considerable discussion of the issue, 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreed to accept the Union's interpretation. Among those representing the Respondent at this meeting were Fried, president, and Harman, production manager . Among those representing the Union was Rivera, a business agent as- signed to a number of plants including that of the Respon- dent, and Gautier, a representative from the Union's New York office. Harman and Rivera had also participated in negotiating the new contract. C. The Work Stoppage Harman arrived at the plant the following morning, Fri- day, shortly before 7 o'clock. He noted that the night-shift employees, as they were leaving the plant, were discussing questions about the contract, and that employees on the first shift were discussing this also after their shift began. Rivera, in response to calls from employees made to the Union early in the week regarding the overtime pay prob- lem, came to the plant on Friday morning at or about 11 o'clock with two other representatives, Peralta and Santano. Harman, who was notified in his office that union represen- tatives were in the plant, went to the diva room of the knitting department, which is divided into a diva room and a jacquard room." A number of employees approached the union representatives to ask questions about the contract, but principally to protest the reduction in their overtime pay. Some employees spoke briefly to the union representa- tives and then returned to their machines. Others argued vigorously with the union representatives regarding the ov- ertime pay issue . Some spoke in loud voices because they were angry and because, as Harman admitted, it is neces- sary to raise one's voice to be heard over the noise of the machines. The dischargees who testified as witnesses for the General Counsel claimed that they objected vigorously to the new overtime provision and the resulting reduction in their pay; when Rivera indicated that the Respondent was wrong and he was having the matter corrected, they did not agree as the payroll office personnel had told them their reduced pay was in accord with the provisions of the new contract; they asserted repeatedly that, as they were no longer to be paid overtime for working through the lunch period, they wanted to take time off for lunch; and at noon they simultaneously shut off their machines, with none of them telling others to turn off machines or turning off machines other than their own. Rivera testified that- ... a group of workers approached me as I was going in . . . They started talking to me about the notice that the company have put up on the bulletin board and they were complaining that workers didn't get paid the right way. I told them that the company was wrong. If anybody had any complaints that I would take care of them. At that time they started an argument that the company was right in putting up the notice because they were told upstairs that the personnel office up- There are about 100 machines in each room , with each employee operat- ing about four machines. stairs, that the contract spells that way, and that's the way they interpret it, and that was the way-that was why because they paid it that way. . . . I told the employees that the company was wrong. I told the employees that we spoke to the company, and besides that, I said you can look around in the bulletin boards that no notice is up on the bulletin boards. We called the company and the company took all the notices down from the bulletin board. It was at this. point, Rivera testified, that Harman ap- proached and asked why he was meeting there with so many workers, and he explained the problem to Harman. Rivera also testified that Harman admitted to him that the Respon- dent "had made a mistake," and "had taken down all the notices from the bulletin boards," and that he, Rivera, told this to the workers. Many of these employees speak only Spanish. Rivera speaks both Spanish and English. Harman knows very little Spanish. When the employees insisted that, if they were no longer to be paid overtime for working during the lunch period, they would turn off their machines and take time for lunch, Rivera argued that it would not be right for the men, who had always worked through lunch, to stop doing so at that time , and urged instead that they discuss taking time for lunch at a meeting at the union office, or that he would discuss it with the Respondent. He testified that, in re- sponse, "They said we will come to the meeting this af- ternoon, but we will not work the lunch hour today, we are stopping at 12:00 o'clock." Rivera testified further that: When 12:00 o'clock came, the group of workers went wild and stopped the machines and stopped the shop .... They started yelling, cursing. . . . They, for ex- ample, I had a guy that was wild, he had a piece of stick in his hands, stick that he hangs the yarn up, he was wild. . . . And other fellows, see, it is kind of hard for me to know who were the fellows because there were so many guys around me, that I couldn't exactly tell who was yelling or not. . . . I thought I was going to get killed there. Although Harman remained in the knitting department for about an hour, he did not address the workers. Neither he nor Rivera told them of the meeting the evening before at which the Respondent agreed to adopt the Union's in- terpretation of the overtime pay provisions . Harman testi- fied that he did tell the union representatives that "I would appreciate it if we would not disrupt the production any more than absolutely necessary. On the other hand, I did recognize that they were trying to help solve the problems that the employees were bringing out. And so I told them that I would be as lenient as I possibly could to allow them to handle the problem." Harman, after referring in his tes- timony to the "low level or rather passive participation of some of the more moderate employees" questioning certain contract provisions, continued: "But the employees that were much more active were the ones that were primarily protesting ... the way that the circular said would be pay- mg ,overtime. And these people were shaking their heads and waving their hands, waving their arms and speaking BENTEX MILLS very angrily, very loud, `We will not go along with this. We won't accept this rule. It's just completely unacceptable.' " Harman testified further that the more vocal employees kept threatening to shut down at noon for lunch. He also testified that he understood some of the Spanish that was being spoken, that some was translated for him, but he could not recall which remarks he understood and which were translated, nor which of the union representatives did the translating. Harmon testified further that, when it ap- peared that the employees would shut down for lunch, he called in the other supervisors and tried to prevent the stoppage; when he was unable to get the employees to re- sume work, he went to Fried's office to tell him what hap- pened; and, as he was walking from the diva room to the jacquard room, he "observed the employees walking rap- idly or running, if you want-to start shutting off ma- chines, rather loud yelling or talking about stopping the machines," and some employees in fact shutting off ma- chines. Harman also testified that the first time he discussed the problem with Fried was shortly after the stoppage occurred at noon, and Rivera testified that he did not see Fried that day prior to 12 o'clock. Fried, however, testified that when he arrived at the plant that morning at or about 9 o'clock, Harman told him about the discussions among the third- shift employees as they were leaving the plant, about the talk and disruption of work that morning on the first shift, and that Harman expected trouble during the day, and Harman testified that Fried's office on the second floor of the plant has a one-way window overlooking the diva room. Furthermore, Fried testified that on one of his trips through the plant that morning, he was shocked to observe the union representatives talking to the workers and the resulting disruption of work; he asked Harman, Rivera, and the workers why they were congregating and not work- ing; Rivera said there were problems but the union repre- sentatives were trying to calm the people down; and he told Harman "to observe it very calmly and inform me of any happenings," and told the management personnel, "let's take it as it goes." Harman testified that when he arrived at Fried's office after the men began shutting down the machines, Fried asked him to explain what the problems were. Rivera also came to the office. He testified that he told Fried the men had stopped for lunch. Fried asked if this was legal and he said he had to check with his supervisors. He called the Union's New York office and reported to Fried that he was told the employees' action was illegal. At Fried's direction the employees were then assembled in the cafeteria. D. The Meeting in the Cafeteria About 50 knitting department employees assembled in the cafeteria at approximately 12:10 and were addressed by Rivera, who told them he had telephoned union officials in New York about the situation, and they advised him that the stoppage was illegal. The employees were then ad- dressed by Fried. He was accompanied at this meeting by 299 Felix Nunez, referred to herein as Nunez,5 who at that time was the employment manager and an admitted supervisor within the meaning of the Act, and frequently acted as a translator for Fried, who did not speak Spanish. Although Fried's remarks were brief, witnesses gave varying versions of what he said, but all were in agreement that he concluded with an ultimatum to the effect that if the employees did not return to work in 5 minutes they would all be discharged. Fried testified as to what he told the employees as follows: To the best of my recollection, and I was very upset because this is the first time a thing like this happened in the twelve years I am then running a doubleknit business. I told them that I'm very shocked to see that the workers of Bentex have taken the law in their own hands and the knitters have stopped the knitting for the first time, as I said, in twelve years. It is my duty, I felt, to tell them of the consequences, what happens in this case. I have asked the union if this is an authorized strike. They said it is not. Therefore, we [sic] have them- selves, as I said, taken the law in their own hands. Therefore, they will have to be discharged and I gave them in the way of an ultimatum. I said if you don't go back in five minutes back to work you will all be dis- charged. And I asked the union-I asked if Felix to translate this in Spanish. s • s s There was an attempt to ask questions but I naturally was very upset. I said there will be no questions, there will be no answers given over here. If you have any grievances or anything, you go through the normal procedure, go to your union. The discharged employees who were called as witnesses by the General Counsel testified that one of the assembled employees called out a question as to what would happen if they all went back to work, and that, after a conversation between Fried and Nunez, Fried answered in English and Nunez in Spanish that there would then be no reprisals. These employees testified that they heard the question but could not identify who asked it except for Saul Vega, who said it was an employee, one of whose names is Elias. Vega, who knows both Spanish and English although he is not fluent in English, testified that the question that was asked was "what was going to happen to us if we start working right away," that Fried's answer was that "nothing is going to happen against nobody," and that Nunez answered in Spanish that "he want all the workers to report back to work. No reprisal will be taken against anyone." The Respondent maintains that there was no such ques- tion and answer, Fried answered no questions after his speech, and nothing was said to the effect that there would be no disciplinary action if the men returned to work imme- diately. Elias Fernandez, the only employee in the plant named Elias, testified, through an interpreter, that the "last 5 One of the dischargees is named Jose Nunez. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thing he [Fried] said was I will give 5 minutes to return to work . . . and then he went back to his office"; he did not hear anyone ask Fried any questions; he never asked Fried any questions as "I never was familiar to speak with him"; as to whether he or anyone else asked Nunez a question, "I never approached Mr. Nunez. I don't recall anything"; and he could not recall how long Nunez remained after Fried left the cafeteria, nor whether Nunez made any comments after Fried spoke. Vega, recalled by the General Counsel as a rebuttal witness, testified that the question was asked by the Elias he had seen enter and leave the hearing room.6 Harman testified that an employee indicated he wanted to ask a question and might even have asked a question relative to the contract; that the question might have been in English, or in Spanish within Harman's understanding of that language, or possibly was translated; and that Fried said "he would not answer any questions until everybody went back to work, that he was going to his office and they must go back to work." Fried's testimony about this matter was: "That meeting, as I said, that was very brief. I was very upset. I just gave them the form of an ultimatum. There was no questions asked. There was no answers given. There was absolutely nothing of that kind." Asked if he told the employees at any time "that if they went back to work within five minutes nothing would be done to them," he replied "Never. There was no questions asked and no answers given of that kind." Fried also testified that he did not know if anything more was said by Nunez, who left the cafeteria a few seconds after Fried did. Nunez testified, as a witness for the Respondent, as fol- lows: Q. Did any employees ask any questions of Mr. Fried? A. Well, I remember they tried. Q. And what did Mr . Fried do when an employee tried to ask a question? A. Well, when somebody asked him something about if-I think they asked me if they return to work, what's going to happen , something like that . And so I translated to Mr . Fried what the man was saying, was asking me, and then he refused to answer the question and he turned his back and did come back to his office and he asked me to do the same thing. So I left the cafeteria and I leftl%he people from the union there and I went upstairs to my office and that's all. Q. Did you say anything else to the employees on that occasion? A. I don't recall, either. I may have said something but I don't think I did. . . . I only translate what the people were asking me about , what's going to happen if we go back to work, so I translated to Mr. Fried the 6 The witnesses were sequestered at the request of counsel for the Respon- dent. same question in English. . . . Well, to be honest, I know they asked that question but I-he didn't give an affirmative answer to that. He may say, I don' t remem- ber, really, he may say nothing is going to happen, but I really don't recall exactly. Asked then repeatedly by counsel for the Respondent if he told the employees nothing would be done to them if they went back to work within 5 minutes , he answered each time that he did not think he did, or that he did not recall. This testimony was presented on Friday, December 7, under questioning by Zelman, counsel for the Respondent. Nei- ther the General Counsel nor the Charging Party asked any questions of this witness. Nevertheless, when the hearing resumed on Monday, Nunez was recalled to be further questioned by Schupack, Respondent's other counsel, who had not been at the hearing on Friday. Nunez testified at this time that "I don't remember exactly but it could be some questions and some comments, after Mr. Fried fin- ished his speech. . . . I don't recall to answer any of the comments or questions. I don't remember, really." All the employees returned to work after the meeting in the cafeteria. Rivera testified that he called his New York office again and reported the men were back at work and the problem resolved. Harman testified that he went back to the knitting floor; that he "figured out when the 5 min- utes were up because I didn't fully expect them to go back to work and that we might have to carry out the ultimatum that Mr. Fried had left with them"; and that all returned within 5 minutes except Luis Ferrer. Ferrer, called by the General Counsel as a rebuttal witness, testified that he re- turned to his machines immediately, that it takes 2 or 3 minutes to get from the cafeteria to his machines at almost the farthest point in the jacquard room, that he was back at work in 2 or 3 minutes, and that Harman came by on the way to the office as he was starting his machines but did not speak to him. E. The Discharges Fried testified that, after the cafeteria meeting, "I called in Ken Harman. Actually, I called him in to give him hell for allowing such a situation.... Ken Harman was telling me that there is nothing that he could do. He tried to per- suade the people. In fact, the union was there, the union representatives were there. They tried to persuade people. He said you saw it yourself." Harman, who has been with the Respondent about 2 years, was previously the texturiz- ing plant superintendent, and became manager of the knit- ting department only about 2 weeks before July 27. Harman said, as Fried testified, that in order for him to be effective in his new position, he had to take disciplinary action against the "instigators" of the strike, and Fried then agreed that "Nobody stops automatically all by itself. There must be some leaders, some instigators. And it is unquestionably [sic] that some disciplinary action has to be taken." Fried also testified that he then called Rivera to the office and informed him that Harman was "authorized by me to fire those people. I also asked them, that they should scrutinize and see that only those people who they observed them- selves and saw are the instigators should be fired." Fried BENTEX MILLS 301 repeated that Harman did not mention getting rid of instiga- tors until after he gave Harman "hell." Harman, on the other hand, testified that he initiated the conversation with Fried about the discharges, and denied that Fried gave him "hell." And Rivera denied that he participated in any dis- cussion of instigators or discharges at any time that day. In the course of that Friday afternoon, each of the 11 men to be discharged was called from his work by a foreman and told to go to Harman's office. Six of them went to the office individually but, as it was nearing time for that shift to end, a group of five was called to the office at the same time. Harman, several other supervisors, a plant security guard, and Nunez, who translated, were in the office. Harman told the men they were discharged because of their role as lead- ers in the work stoppage, suggested they take up with the Union any questions they might have, demanded their iden- tification tags, and had them escorted out of the plant by the security guard. There was very little discussion about the reasons for the discharges. Jose Nunez, one of the men in the group, asked if another man could be laid off rather than discharged in order to be eligible for unemployment com- pensation as he had four sons to support, but Harman re- fused. Harman testified that one employee said he was going to jump off the George Washington Bridge, that an- other made a threatening remark, and that "two or three of them mildly said, well I wasn't any more involved than another employee. So why should I be singled out. Nothing real firm or convincing." Harman could not recall the names of the individuals who made any of these remarks. There was no assertion by any of the dischargees in these discharge interviews that Fried said there would be no re- prisals if all went back to work. On Monday a group of the dischargees went to the union office to see if the Union could get their jobs back. They pointed out that the Respondent had made a mistake in its interpretation of the contract, and their mistake in protest- ing as they did should therefore be forgiven. They did not tell the union representatives that Fried had said there would be no reprisals if all went back to work, and ex- plained in their testimony that they did not discuss what occurred on Friday as the union representatives had been present and saw and heard what occurred. Gautier, from the Union's New York office, was in charge of the Union's investigation of the discharges. Rivera acted as his interpret- er in interviewing the dischargees. As Gautier testified, each of the dischargees claimed that he was discharged for stop- ping his machines, and denied that he or any other knitting employee was an instigator of the stoppage; Rivera said he had warned the employees a work stoppage would be illegal and he thought they were discharged for instigating the stoppage; Harman said, when Gautier telephoned him, that the men were discharged for being instigators of the work stoppage, and he refused Gautier's request to consider tak- ing them back; and the Union concluded that the dis- charges were for cause-instigating a stoppage that was in violation of the contract. Gautier did not learn until about a week later about the overtime notice that had been posted by the Respondent. He had been at the July 26 Association- Union negotiations about the overtime provision, and he had arranged to have the Local notify the employees about the resulting change in the Respondent's interpretation, but, at the time of the hearing, he did not know if the Local had done so. In his telephone conversation with Harman, Gautier asked for a written statement of the reasons for each dis- charge. Harman sent the Union a letter, dated August 1, stating that "The following men were discharged from Ben- tex for the respective reasons," and listing, as to Ferrer, "Unauthorized stopping of machines, soliciting other em- ployees to stop machines, not returning to his machine after being warned by management and the union to return to the machines in 5 minutes"; and, as to each of the other 10, "Unauthorized stopping of machines and causing other em- ployees to stop machines." The discharged employees, as set forth above, maintained that there were no instigators or leaders, that they shut down at noon spontaneously and simultaneously, that no one told others to shut down machines or shut down other than his own machines , and that they took this action because they wanted to take time for lunch as they were convinced the Respondent was no longer going to pay them overtime for working through the lunch period. F. Harman's Selection of Dischargees Harman became production manager, in charge of about 600 employees, on about July 15 ,7 less than 2 weeks before the work stoppage on July 27. He was previously superin- tendent of the texturizing plant which is in the same build- ing, and in charge of about 600 employees at that time. The employees of the different plants do not interchange. Har- man on July 27 could identify by name virtually none of the knitting department employees, and at the hearing could identify by name virtually none of the dischargees. Rivera, who had under his jurisdiction about 32 shops totaling over 3,000 employees, likewise could identify by name virtually none of the Respondent's employees. Peral- ta, one of the representatives accompanying Rivera, services 12 shops, had been with the Union only a few months, and had been at the Respondent's plant only twice prior to the visit on July 27. Santano did not testify. Harman testified that, during the events of July 27, he observed that some employees not only were more vocal in their protest than others, but also threatened that all would shut down at noon, urged others to shut off their machines and take a lunch period, turned off their machines and those of other employees, and one of them made a threatening gesture to an unidentified employee, who then turned off his machines, but who never complained of being threatened; that he identified these instigators during the protest to the union representatives other than Rivera, and they admitted these were the instigators; that he decided, as soon as the machines stopped at 12:00, to do something about the insti- gators; that he had not yet made a list but knew which ones had been most vocal in the protest; and that he identified the instigators by pointing them out to supervisors, and then made a list. He admitted that he said nothing to Fried about any discharges prior to the cafeteria meeting. Although some of the dischargees had been employed 7 The new contract, which Harman had a large part in negotiating, was signed on this date. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD several years, Harman was not able on the witness stand to identify the individuals who engaged in the conduct in ques- tion until he was shown, by counsel for the Respondent, the identification tags of the dischargees which bore their pic- tures and names. No tags of any employees other than the dischargees were shown to Harman, who had to be shown the identification tags repeatedly as additional questions were asked about particular dischargees. The same procedure was followed by Respondent's coun- sel in questioning Rivera, who also was shown the identifi- cation tags only of the dischargees, which he testified had previously been shown to him in the office of Respondent's counsel about a week before the hearing, and he likewise was unable to testify about the conduct in issue until shown the tags again and again each time a question was posed about a particular individual. Rivera testified that on July 27, after about an hour's discussion with the employees at the plant from 11 to 12 o'clock, the employees at noon "went wild," that he was afraid of being killed, that they were yelling, cursing, and turning off machines, some turn- ing off more than the four machines each man operated, with one turning off "Close, I said, around, not exactly twelve machines, around." He admitted that he did not know which employees operated which machines, and that he did not see dischargees Osvaldo Rodriguez, the Charging Party, or Izquierdo do anything at noon. Peralta, one of the union organizers at the plant with Rivera on Friday, testified that "the people was a little excited, some of them . . . about the daily overtime"; some were yelling and cursing, and one of them, Morales, had a stick in his hand and used obscenities; and he could not identify any of them by name but, after being shown their identification tags, he identified these men as yelling that they were going to shut down their machines and others should also. He testified further that at 12 o'clock someone said it was 12 o'clock and "They get like crazy. They shut off the machines. . . . They stop the machine for one hour for lunch." He testified that he saw Sotolongo turn off about 15 or 16 machines, that he saw Morales stop "Eight, ten, twelve" machines, and that each of the men was yelling again about taking 1 hour for lunch. He admitted, however, after being shown the identification tags, that he did not remember seeing Saul Vega after 12 o'clock; Osvaldo Ro- driguez talked to them before 12 o'clock; and he did not see Izquierdo and did not remember seeing Mario Rodriguez at 12 o'clock. Rivera also testified, on cross-examination by the Gener- al Counsel, that he believed all the men were back at work within 5 minutes; the Respondent did not tell him on Friday of any who were not; he called the Union's New York office and reported the men were back at work and the problem resolved; he first learned on Monday of the 11 discharges; the other two representatives had not indicated to him that certain employees were to be discharged; and he had never concurred with the Respondent that these people should be discharged nor that they were instigators. He also testified, however, that before he left the plant on Friday he got a call in which "the company mention about some leaders. I told the company if you want to take any action against any leaders there, I don't want to have anything to do and I'm leaving the plant. I got people to go back to work and at that time I left the plant . . . The company started to tell me that they were going to fire the leaders of this here . At that time I told the company if they wanted to go ahead and fire anybody, it was not up to me . At that time I walked out of the plant." Concluding Findings I found the dischargees who testified candid and convinc- ing witnesses, attempting in spite of language problems and the lapse of time to describe as accurately as they could recall the events here in issue. On the other hand, I found unconvincing much of the testimony presented by the Re- spondent, whose witnesses were generally evasive, inconsis- tent, and contradictory. Accordingly, I credit the testimony of the discharged employees where it is in conflict with that of the Respondent's witnesses . Further, I find, on the basis of the credited testimony, admissions of the Respondent's witnesses , and the record as a whole, that the knitting de- partment employees protested what they believed was a reduction in their pay that had been agreed to by the Union and the Respondent; their protest took the form of shout- ing, use of obscenities, and assertions that if they were no longer to be paid overtime for working through lunch time they would take time for lunch; and at noon they shut down their machines and went to the cafeteria to eat their lunch. That their protest did not unduly disturb the Respondent's officials is shown by the testimony of Harman, who was in the knitting department during the protest, and of Fried, who observed what was going on, that supervisors and the Union should be lenient and calm and see what transpired. I therefore find grossly exaggerated the testimony of the two union representatives that the men at noon, when they car- ried out their assertions that they would shut down their machines and take time for lunch, "went wild," and I find wholly incredible the testimony of Rivera that he was put in fear by the violence of the protest of being killed. Harman informed Fried as soon as he observed that the employees were shutting down their machines at noon. Fried directed that the knitting employees be assembled in the cafeteria, and this was done at about 12:10. There, it is undisputed, Fried told these employees that he was giving them 5 minutes to return to work, and that if they did not return to work within 5 minutes they would all be dis- charged. On the basis of the credited testimony, the reluc- tant admissions of Nunez, and all the relevant evidence, I find that, after Fried completed his remarks, one of the employees asked what would happen if they did go back to work, and the question was answered, by Fried in English and by Nunez in Spanish, that no action would then be taken against the employees. I also find that all the employ- ees did return to work within 5 minutes. I do not credit Harman's testimony that Ferrer failed to do so. Harman did not state how long Ferrer took to return to work, he did not explain how he "figured out when the 5 minutes were up," he said nothing to Ferrer when he passed him on the way to the office, and Harman's testimony in this regard is con- tradicted by Ferrer, other credited witnesses , and Rivera, who testified that all the employees returned to work within 5 minutes. It is apparent from the record as a whole, and I find, that BENTEX MILLS 303 it was at some point after the men returned to work that Harman decided to discharge some of them, and that he so decided either because, as Fried testified, he gave Harman "hell" for permitting the stoppage to occur, or because, as Harman testified, he told Fried he had to take such action to maintain his authority as production manager, a position he assumed less than 2 weeks prior to the events here in- volved. I therefore do not credit Harman's testimony that he decided prior to the cafeteria meeting to take some action against the leaders of the protest, and began to prepare a list. He admittedly did not mention this to Fried until after the cafeteria meeting. Moreover, the Respondent states in its brief that the Respondent "decided almost immediately after the stoppage ended to terminate the instigators of the stoppage, proceeded to formulate a list of the men to be discharged ..." I further find that Harman and the other witnesses for the Respondent failed completely to show that the 11 individu- als it discharged were "instigators" of the work stoppage. The employees testified, and I credit their testimony, that there was no direction by any of them to others to shut off machines, and that none of them shut off machines other than his own. Furthermore, the Respondent's testimony as to the identification of the 11 individuals as instigators was completely unconvincing. Harman and the union represen- tatives were unable to name the individuals they claimed were the instigators, could identify them only when shown identification tags bearing their names and photographs, were shown the tags only of the dischargees, and had to be shown the tags repeatedly whenever a question was asked about any particular one of them. None of the supervisors who allegedly identified the instigators for Harman were called as witnesses. Further, Harman repeated in almost rote fashion, in his letter to the Union as well as in his testimony, the reasons why each of the dischargees was selected, and the union representatives in their testimony did likewise except as to those individuals Rivera and Peral- ta admitted they could not recall seeing at the time the stoppage occurred. In conclusion, I find that the circumstances herein, in- cluding Fried's direction that the men return to work in 5 minutes or all would be discharged, the Fried-Nunez answer to an employee question that if the men complied no repri- sal would be taken, and the resumption of work by all the men within 5 minutes, clearly indicated the Respondent's intent to forgive those who engaged in the work stoppage and, therefore, evidenced the Respondent's condonation of this conduct. The Board discussed in the Eskin case 8 its condonation policies, and the court of appeals, in affirming the Board, stated: Condonation requires a demonstrated willingness to forgive the improper aspect of concerted action, to "wipe the slate clean." After a condonation the em- ployer may not rely upon prior unprotected activities of employees to deny reinstatement to, or otherwise to discriminate against, them. [Citations omitted.] . . . the nature of the condonation principle, which, reflecting a clear public interest in the prompt settlement of labor disputes, is more akin to the doctrine of waiver than to the technicalities of contract law. I find the cases on which the Respondent relies in its brief clearly distinguishable. Some involved situations in which the Board or the courts found, on the facts therein, that there was no condonation by the employer of the conduct in question because , inter alia, the individuals in question were not permitted by the employer to return to work when others who participated in the conduct in question were (Ohio Stove Company, 180 NLRB 868 1970), the strikers chose not to return to work when directed by the employer to do so (Plasti-Line, Incorporated v. N.L.R.B., 278 F.2d 482), or the employer's statements alleged to constitute con- donation were vague and equivocal. In the Plasti-Line case, the court found there was "no evidence of a positive act by the petitioners [employer] to indicate either a forgiveness of the strikers or an intention to resume their former relation- ship with them" which the Court held to be the "necessary elements under the doctrine of condonation." I find that the Fried-Nunez statements to the employees assembled in the cafeteria and the immediate resumption of work at Fried's direction by all the employees who had engaged in the work stoppage provided these necessary elements for a finding of condonation. In the circumstances of this case, I find no merit in the contention made in the Respondent's brief that the conduct of the employees here in question was of such nature as to make the doctrine of condonation inapplica- ble? Accordingly, on the basis of the record in its entirety, I find that the Respondent, after its condonation of the employees' work stoppage, discharged 11 employees be- cause they engaged in work stoppage, and thereafter failed and refused to reinstate these employees, and that the Re- spondent thereby violated Section 8(a)(1) and (3) of the Act.10 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's oper- ations 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I find that it is necessary that the Respondent be ordered to cease and desist from the unfair labor practic- es found and from in any other manner infringing upon its employees' Section 7 rights, and to take certain affirmative action designed to effectuate the policies of the Act. 9 M Eskin & Son, supra; see also Coronet Casuals, Inc., 207 NLRB 304, as to the effect of conduct such as use of obscene language. 10 M. Eskin & Son, supra; Winn-Dixie Atlanta, Inc., 207 NLRB 290; The Colonial Press, Inc., 207 NLRB 673. 8 M. Eskin & Son, 135 NLRB 666 (1962 ), enfd . sub nom. Confectionery & 11 N. L. R. B. v. Express Publishing Company, 312 U.S. 416, 437; N. L. R. B. v. Tobacco Drivers, etc. v. N.L.R.B., 312 F.2d 108 (C.A. 2 1963). Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I have found that the Respondent, after condoning con- duct by its knitting department employees that was violative of the collective-bargaining contract, discriminatorily dis- charged I I of those employees on July 27, 1973, for their participation in such conduct, and thereafter failed and refused to reinstate them. The Respondent will therefore be ordered to offer each of these employees reinstatement to his former job, or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his seniority or other rights and privileges, and to make each of these employees whole for any loss of pay suffered as a result of the discrimination against him, with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1963). Upon the basis of the foregoing findings of fact and the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Bentex Mills, is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 222, International Ladies' Garment Workers Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By discharging Luis Ferrer, Amado Isa, Jose Izquier- do, Pedro Morales, Jose Nunez, Mario Rodriguez, Ozvaldo Rodriguez, Alfredo Sotolongo, Saul Vega, Juan Ramiro Valdez, and Luis Vasquez, on July 27, 1973, after its condo- nation of the conduct for which they were discharged, and thereafter failing and refusing to reinstate these employees, the Respondent has discriminated against employees in re- gard to their hire or tenure of employement, and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 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: ORDER12 The Respondent, Bentex Mills, East Rutherford, New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any of its employees in regard to their hire or tenure of employ- ment, because of their participation in conduct violative of the collective bargaining contract, after it has condoned such conduct. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer to Luis Ferrer, Amado Isa, Jose Izquierdo, Pe- dro Morales, Jose Nunez, Mario Rodriguez, Ozvaldo Ro- driguez, Alfredo Sotolongo, Saul Vega, Juan Ramiro Val- dez, and Luis Vasquez, immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their senority or other rights and privileges. (b) Make Luis Ferrer, Amado Isa, Jose Izquierdo, Pedro Morales, Jose Nunez, Mario Rodriguez, Ozvaldo Rodri- guez, Alfredo Sotolongo, Saul Vega, Juan Ramiro Valdez, and Luis Vasquez, whole for any loss of pay each of them may have suffered as a result of the discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this recommended Order. (d) Post at its plant at East Rutherford, New Jersey, cop- ies of the attached notice marked "Appendix A." 13 Copies of the notice, on forms provided by the Regional Director for Region 22, after being duly signed by the Respondent's representative, shall be posted by the Respondent immedi- ately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 22, in writ- ing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith. 12 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. 13 In the event that the Board's 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 Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discriminate against any of our employees in regard to their hire or tenure of employment, because of their participation in conduct violative of the collective-bargaining contract, after we have condoned such conduct, or in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL offer to Luis Ferrer, Amado Isa, Jose BENTEX MILLS Izquierdo, Pedro Morales, Jose Nunez, Mario Rodri- guez, Ozvaldo Rodriguez, Alfredo Sotolongo, Saul Vega, Juan Ramiro Valdez, and Luis Vasquez, 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. WE WILL make whole the employees named above for any loss of pay each of them may have suffered as a result of the discrimination against him. BENTEX MILLS (Employer) Dated By 305 (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, Federal Building, 16th Floor, 970 Broad Street , Newark, New Jersey 07102, Telephone 201- 645-2100.