Bernhard Altmann International Corp.

National Labor Relations Board - Board DecisionsMay 23, 1962

137 N.L.R.B. 229 (N.L.R.B. 1962)

BERNHARD ALTMANN INTERNATIONAL CORPORATION 229, All lithographic production employees' of 'Allen', Lane & Scott and' Cuneo Eastern Press, Inc., and all offset press employees of Edward Stern & Co., Inc., excluding the quality control employees, the proof press operator, shippers, maintenance men, bindery employees, and the janitor at Allen, Lane & Scott; also excluding floorboys, paper stock handlers, maintenance men, clericals, bindery workers, the por- ter, the janitor, and the utility worker at Edward Stern & Co., Inc.;. and excluding all other employees, office clerical employees, guards, supervisors, and professional employees as defined in the Act. If a majority of the employees in the above-described voting group vote for the Petitioner, they will be taken to have indicated their desire to constitute a separate appropriate unit, and the Regional Director conducting the election herein is instructed to issue a certi- fication of representatives to the Petitioner for the unit described above which the Board, in such circumstances, finds to be appropriate for purposes of collective bargaining. If a majority of the employees in said voting group do not vote for the Petitioner, they will be taken to have indicated their desire to remain a part of the unit now repre- sented by the Intervenors, and the Regional Director will issue a certification of results of election to such effect. [Text of Direction of Elections omitted from publication.] Bernhard Altmann International Corporation and International Ladies' Garment Workers ' Union, AFL-CIO.. Case No. 23-CA- 1275. May 23, 1962 DECISION AND ORDER On February 28, 1962, Trial Examiner John H. Dorsey issued his Intermediate Report in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel and the Charging Party filed ex- ceptions to the Intermediate Report, together with supporting briefs. The Respondent filed a reply brief in support of the Intermediate Report. 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 [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in 137 NLRB No. 28. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this case, and hereby adopts the findings, conclusions , and recom- mendations of the Trial Examiner except as noted below.' [The Board dismissed the complaint.] i The complaint alleged that Respondent violated Section 8(a) (1) of the Act when, on August 9, 1961, Respondent's plant manager, Simon, threatened employees with loss of employment if they did not abandon their engagement in strike activities The record discloses that, when Simon refused to discuss Villegas' discharge with Villegas and the union president, Villegas' fellow employees walked out in protest Simon then told the striking employees that "If you don't cone back to work by 12 o'clock I will consider that you have quit and therefore you will be fired " The Trial Examiner dismissed this allega- tion on the ground that, inasmuch as the walkout was not predicated upon an unfair labor practice, Respondent had a right to replace the strikers while it is true that an employer may lawfully replace economic strikers and, of course, may lawfully inform them of this fact, the Respondent did not confine its admonition to the possibility of re- placement, but affirmatively threatened the strikers with discharge Contrary to the Trial Examiner, we find that this threat to discharge employees who were engaged in a pro- tected, concerted activity constituted a violation of Section 8(a) (1). However, in the context of this case, we do not believe that this single incident warrants remedial treatment INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges i filed by International Ladies' Garment Workers' Union, AFL- CIO, herein called the Union, complaint was issued on September 29, 1961,2 alleging that Bernhard Altmann International Corporation, herein called Respondent, had violated Section 8(a) (1) and (3) of the National Labor Relations Act, as amended, herein called the Act, by: (a) Soliciting, in June 1961, an employee to report and disclose to Respondent the identity of employees attending union meetings and what occurred at such meetings; (b) on or about August 9 threatening employees with loss of employment if they did not abandon their engagement in strike activities; (c) advising that the employment of employees who had engaged in strike activities, on or about August 9, was terminated and only those "who would not make trouble" would be rehired; (d) discharging employee Rudy Villegas on August 8 and rehiring him on or about September 5 as a new employee with loss of seniority rights; and (e) discharging employee Francisco Gomez, on or about August 9, and failing and refusing to reinstate him. Respondent filed its answer on October 11 in which it: (1) Admits the jurisdictional averments of the complaint; (2) admits the discharge and rehire of Villegas; and (3) admits the discharge of and failure and refusal to rein- state Gomez. It denies violation of the Act as alleged in the complaint. Hearing on the issues raised by the pleading were held before John H. Dorsey, the duly designated Trial Examiner, at San Antonio, Texas, on December 5 through 8. Thereafter each of the parties filed a brief. Upon consideration of the entire record, the brief submitted by the parties, and upon my observation of the demeanor of the witnesses, I make the following: 3 FINDINGS OF FACTS 1. JURISDICTION Respondent and the Union herein are the same employer and union which were parties in Bernhard-Altmann Texas Corporation , 122 NLRB 1289; enfd. sub nom. International Ladies' Garment Workers Union v. N.L R.B , 280 F. 2d 616 (C.A.D.C.); affd. 366 U.S. 731, herein referred to as the Supreme Court case. Respondent has since changed its corporate name. The parties stipulated that Respondent 's business is substantially the same. I find, as was found in the Supreme Court case, that Re- spondent is an employer within the meaning of Section 2(2) of the Act and is en- 1 Original charge, August 2, 1961; first amended charge, August 21, 1961 ; second amended charge, September 26, 1961. 2 All dates herein are In the year 1961 unless otherwise indicated 3 Unless otherwise indicated questions of credibility are resolved upon my observations of the demeanor of the witnesses See, Sabin, "Demeanor Evidence ; Elusive and In- tangible Imponderables," 47 A.B A.J. 580 (June 1961). BERNHARD ALTMANN INTERNATIONAL CORPORATION 231 gaged in commerce within the meaning of Section 2(6) and (7) of the Act; and, that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. BACKGROUND In 1957 Respondent recognized and dealt with the Union as exclusive bargaining representative of a unit of its employees. Collective-bargaining contracts were entered into starting in 1957. In the Supreme Court case it was found that the Union did not represent a majority of employees in the unit and that its recognition as and its exercise of the prerogatives of exclusive bargaining representative violated the Act. The decree entered in the case enjoined the Union from (122 NLRB 1289 at 1296): (a) Acting as the exclusive bargaining representative of any of the employees of Respondent Bernhard-Altmann Texas Corporation for the purpose of dealing with said Company concerning grievances, labor disputes, wages,'rates of pay, hours of employment, or other conditions of employment unless and until said Union shall have demonstrated its exclusive majority representative status pur- suant to a Board-conducted [election] among the Company's employees. (b) Giving effect to the "memorandum of understanding," dated August 30, 1957, or to the collective-bargaining agreement, dated October 7, 1957, between the Respondent Union and Bernhard-Altmann Texas Corporation, or to any extension, renewal, or modification thereof. A corollary injunction was simultaneously issued against Respondent with the pro- viso (122 NLRB 1289 at 1295) : that nothing in this Decision and Order shall require the Respondent Company to vary or abandon any wage, hour, seniority or other substantive fea- ture of its relations with its employees which the Company, has 'established in the performance of this agreement, or to prejudice the assertion by employees of any rights they may have thereunder. About June 28, 1961, Respondent posted copies of the notice required by the Board's Order which informed the employees of Respondent's legal obligation and intent to comply with the injunctive and affirmative provisions of the Order. On July 2 the Union held a meeting to initiate an organizational campaign among Respondent's employees presumably to enlist additional members necessary to qualify as exclusive bargaining representative. The record contains no other evidence rela- tive to such a campaign. M. FINDINGS AND CONCLUSIONS RELATIVE TO THE ALLEGED UNFAIR LABOR PRACTICES A. Solicitation of information concerning the Union's membership and activities Consuelo Aguilar, who worked in the looping department, testified on direct examination that: 1. During the "first of June" when she was leaving the cafeteria, Respondent's personnel director, Carcie Stricklen, "told me that she wanted to find out where the union meetings was and the name of all the girls who attended those meetings"; and Aguilar replied, "I haven't attended those meetings lately, but there were quite a few girls that attended those meetings, and I think that you know, Miss Stricklen, there were a few girls that you never would think would attend those meetings, girls she didn't suspect"; and Stricklen said, "Consuelo [Aguilar], don't let the girls know this information." 2. About 2 weeks later, while at her place of work, Stricklen "told me if I had those names from the girls and the name of the place where the union have those meetings and I said, `No,' and she said, `Consuelo, we are in a jam."' Under cross-examination Aguilar exhibited uncertainty of recollection in general and confusion concerning the facts elicited during her direct testimony. Her de- meanor was such that I cannot credit her testimony. Therefore, because of lack of proof, I find that Personnel Director Stricklen did not solicit her, in violation of the Act, to supply information concerning the Union's membership and activities. I recommend that the pertinent allegations of the complaint be dismissed.4 B. The discharge of Francisco Gomez Gomez started to work for Respondent on June 15 as a trainee operator of machines in the flat knit department. As a new employee he was in a probationary ' Strickien denied ever having had such conversations with Aguilar. I credit her testimony. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD status for the first 60 days or 320 hours of his employment, subject to discharge at the election of Respondent .5 He signed a union membership card on June 30. On July 27 when he was about to enter the plant to start work at 6 a.m., J. M. Ayala, president and shop chairman of the Union, told him his department was not working and "that I was not to go in." The Union had initiated a walkout on that day, partici- pated in by about 120 employees.e Gomez had no advance notice of the walkout. The walkout continued from July 27 through 30. Other than not working during this period there is no evidence of overt action by Gomez in the concerted activity. Gomez reported back to work on July 31. No representative of Respondent said anything to him about his failure to work during the walkout. On August 10 Gomez was discharged by his supervisor, Rudy Lopez. According to Gomez, Lopez told him, "He was going to let me go, and I didn't know actually what he meant by that, but he said I had actually participated on a walkout and I was on a 90-day probationary period and that automatically puts me out of a job . . . he went on to say the plant had hired an experienced helper that had come back from California and was . .. to take my place...... Gomez was then given his check for wages due. Supervisor Lopez testified that when he told Gomez he was being replaced by an experienced former employee who had returned from California and applied for a job, Gomez asked "was I letting him go because of the walkout they had two or three weeks before" and Lopez replied, "No, it's not that. I just got through telling you that a man that has experience came in and applied for a job." Personnel Director Stricklen corroborated the testimony of Lopez as to the reason for the discharge of Gomez. There is no dispute that the experienced man was hired and did replace trainee Gomez.? It is also undisputed that Respondent has the only knitting plant in the San Antonio area and at the time it replaced Gomez with an experienced man Respondent was in its busy season and was behind in its production schedule. It is unlikely that out of about 120 employees who participated in the July walkout Respondent would single out one trainee for discharge 2 weeks after the walkout. T credit the testimony of Lopez and Stricklen as to the reason for Gomez' discharge. 5A probationary employee is vested with the protections of the Act He cannot be denied his statutory rights and privileges. He cannot be discharged for exercising them 60n July 24 Respondent distributed a notice to its employees which, inter alia, stated that Respondent, beginning July 31, was raising the wages of hourly paid employees 10 cents per hour. Upon receipt of this notice nine employees of the knitting department, who were paid on a piecework basis, wrote on the copy of the notice each received that they too wanted the raise ; and, then, each deposited his copy of the notice in the sug- gestion box Rudy Villegas, whose case is discussed, infra, was one of the nine. On July 26 Plant Manager Simon invited the nine employees into his office to discuss their grievance. They told Simon they thought it was unfair to grant an increase to the hourly workers and not give a like increase to the pieceworkers Simon said he would look into the matter and indicated he was considering giving some increase of piecework rates. Prior to the July 26 meeting with Simon the nine employees had asked Union President Ayala to come to the meeting with them. Ayala was not permitted to enter Simon's office because he had not been invited and Simon had left instructions that he did not want to be disturbed while he was meeting with the nine employees. This Incensed Ayala. Immediately following the July 26 meeting the nine employees met with Ayala and it was decided to call a meeting of all employees of all shifts for the following day, July 27, at 10 a m. As a result of this scheduled meeting some employees did not report for work on July 27; others left their jobs at 9 a.m. About 120 employees attended the meeting. The predominant reason for the walkout was the Union's objection to Respondent talk- ing to individual or groups of employees concerning wages, hours, and working condi- tions The Union felt that this was being done to undermine it Also, the Union was aggrieved by what it considered to be discriminatory privileges of smoking and drinking coffee on the job permitted in what it called nonunion departments The testimony of Union President Ayala makes clear that the Union was intent upon insisting that it be recognized as collective-bargaining representative notwithstanding the injunctions against demanding or being recognized as such representative. 'i The man hired to replace Gomez had about 3 years' experience in two of Respondent's departments, one being the operation for which Gomez was being trained BERNHARD ALTMANN INTERNATIONAL CORPORATION 233 I find no preponderance of testimony that Gomez was discharged in violation of the Act. I recommend dismissal.8 C. The discharge of Rudy Villegas Villegas started to work for Respondent in July 1956. He was a topper in the full- fashion department. From 1957 he was one of six union committeemen. He had participated in the handling of grievances.9 The full-fashion department has three shifts: 6 a.m. to 2 p.m.; 2 to 10 p.m.; 10 p.m. to 6 a.m. The normal complement is three toppers and nine knitters on each shift. The topping operation immediately precedes and is indispensable to the knitting. Consequently whether the knitters work or are laid off is dependent upon the quantity of work produced by the toppers; and production of finished sweaters is correlative. Prior to the establishment of contractual relationship between the Union and Respondent in 1957, Saturday and Sunday work was mandatory when ordered by management . During the existence of the collective-bargaining contracts, which were terminated in June 1961, Saturday and Sunday work by employees was voluntary. Respondent's busy season is during June, July, and August. During this season in 1961, after the Supreme Court opinion was handed down, Respondent sought to have the employees work on Saturday and Sunday. At the time Respondent was about 18,000 sweaters behind its production schedule. The Union at first influenced the employees not to work on Saturday and Sunday. It objected because Respondent was approaching individuals to work on the week- ends. The Union was of the opinion that this was done to undermine it. In the latter part of July after numerous meetings between Union President Ayala and representatives of management it was agreed that the Union would have no objection to the employees working weekends starting July 29.10 However, the employees did not work on that weekend because of the July 27 through 30 walkout. On Saturday, August 5, at 9 p.m., Villegas telephoned Conrad Martinez, the 2 to 10 p.m. shift foreman, and told him he was not going to work on the following shift (10 p.m. to 6 a.m.) because of bleeding hemorrhoids. Martinez asked him to come in because two other toppers had not showed up that day.tl Villegas said he would call back. About 9:30 p.m. Villegas again telephoned Martinez who referred the call to Mariano Zuniga, the shift foreman. Villegas testified that he told Zuniga that, "I wasn't going to go to work and I told him why, and be said he couldn't get nobody else to replace me and he would like for me to come in, and I told him I would probably come in about an hour or two later if I feel any better . ." Zuniga testified that he told Villegas that if he did not come to work the knitters would have to be sent home; and, that Villegas replied, "Well, I will be there in a few minutes." Villegas stated that he called a third time about 10 or 10.30 p.m. and told Zuniga be was not coming to work. Zuniga denied receiving the third call. Upon my observation of the demeanor of both witnesses I credit Zuniga's testimony both as to what Villegas said during the 9:30 p.m. conversation and that Villegas did not telephone again to say he would not report for work.12 As a result of Villegas' failure to report for work Zuniga laid off the nine knitters on the shift at 2 a.m. because of lack of work. There is confusion in the evidence as to whether Villegas was scheduled to work the night of August 5. Villegas first testified he was not. He said he called in that evening only to find out if there was work for him. Later he testified he heard from the knitters that they were going to work and "that was my reason for calling in." Inasmuch as Villegas testified that he was not feeling well on August 5, it is incredible that he would have made the telephone calls on August 5 concerning 8In his brief the General Counsel argues that Respondent should have rehired Gomez when a vacancy later occurred. The complaint contains no allegation that Respondent failed and refused to hire Gomez in violation of the Act 8 There was testimony that Villegas participated in a strike in 1957. This I find to be too remote to have any probative value 11 The Union was suspicious that Respondent wanted the employees to work weekends to accumulate a stockpile as an asset in the event of a strike. The Union asked for and got assurances that such was not the objective 11 Both had valid reasons During the hearing there was no attempt to equate their absence with the Villegas case. 12 Plant Manager Kovalski testified that when he questioned Villegas concerning his failure to report for work on August 5, Villegas said he had not called the third time to tell Zuniga that he was not going to come to work. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his working if he did not know he was scheduled to work. Villegas by his own admission did not stay at home the night of August 5; but, instead , spent the night engaged in social activities . From my observation of the demeanor of Villegas I conclude that the reason for his failure to report to work on August 5 was the attractiveness of the social activities and not the discomforts of bleeding hemorrhoids. Villegas, starting in January 1961 , had an unfavorable history of repetitive tardi- ness and absenteeism . 13 He was given numerous warning notices . On June 22 he was given a 1-day disciplinary layoff and warned that "any repetition of these offenses during the next three months will warrant permanent dismissal." He was, therefore , in effect , in a probationary status when he failed to report for work on August 5. On Monday morning, August 7, Shift Foreman Zuniga reported to Supervisor Andrew Gonzales that Villegas had failed to report for work on August 5, and as a result he had to send the knitters home.14 Gonzales telephoned Production Manager Thomas Kovalski who was temporarily in North Carolina on business , told him of Villegas' failure to report to work, and recommended that in view of Villegas' past history of absenteeism , tardiness , and indifference to warning notices that he be dis charged. Kovalski told Gonzales that he would be back the following day and wanted to give Villegas the opportunity to explain ; he cautioned Gonzales not to take any precipitous action. On August 8 Kovalski met with Villegas . After discussing Villegas' failure to work on August 5, Kovalski told Villegas that he could no longer tolerate his indifference to warnings relative to his absenteeism and tardiness . Kovalski told Villegas that he was recommending to Plant Manager Simon that Villegas be discharged . A little after 2 p.m. Union President Ayala met Villegas who informed him, "I have just been fired . . Because I didn't work last Saturday." Ayala who was on the way to the office of Supervisor Gonzales invited Villegas to come along . Gonzales con- firmed that Villegas was discharged subject to confirmation by Plant Manager Simon. The first inclination of Ayala was to call a walkout. However, when he was as- sured that Plant Manager Simon would see him and Villegas at 8 a m. the following day, he, after discussion with other members of the Union, decided to withhold any concerted action pending the outcome of the meeting. The following morning, August 9, Ayala, at 8 a.m ., told Production Manager Kovalski that Villegas was in the personnel office and they were ready to meet with Plant Manager Simon. Ayala was told that Simon , at the time , was busy with a salesman and Kovalski would let him know when Simon was available At 8:45 a m , Villegas walked out to Ayala's machine and told him that Kovalski had said that Simon was ready to meet with them . Then when they went to Simon's office, Simon said , "Jesse [Ayala], I don't want to meet with only the two of you. I want to talk to all of the department , to all of the shift ." Ayala pressed for an immediate discus- sion of Villegas' discharge . Simon proceeded to attempt to talk to the employees on the shift . Ayala persuaded most of the employees not to listen and to walk out because, as he told them , Simon had broken his promise to talk with him and Villegas at 8 a.m. Forthwith the employees that walked out, about 25, went to the Labor Temple for a meeting. At the meeting it was decided that a committee, with Ayala as spokesman , should go back to the plant and talk to Plant Manager Simon about Villegas, discharge . About 9-:45, or 10 a.m. the committee met with Simon who said: ... On this record that Villegas has [on absenteeism and tardiness ] I don't see how anybody can back a fellow like that with a record like this. The Company will not tolerate anybody that has a record like this, and therefore I don't think that any one of the workers will support anybody like this. I want you to know the machines are there . If you want to come back to work, 0 K., and if you don 't it's still O.K. I'm going to give you boys until 12:00 o'clock. If you don 't come back to work by 12:00 o'clock I will consider that you have quit and therefore you will be fired. zs The exhibits introduced concerning the occasions of Villegas ' tardiness and absentee- Ism raise some nuestions as to their complete accuracy However , the exhibits when weighed along with the testimony as a whole leave no doubt of excessive tardiness and absenteeism and indifference on the part of Vlllegas. 14 Zuniga also reported four knitters who refused to stop work when he ordered them to do so These four were given discharge notices which were later , upon intercession of the Union , withdrawn. BERNHARD ALTMANN INTERNATIONAL CORPORATION 235 The employees pleaded for more time because they would have to have another meeting to make a decision. Simon testified, without contradiction, that Ayala said at the meeting: We think you are completely justified in firing this man [Villegas]. We com- pletely understand the reasons. This man probably needs firing or should have been fired.... We would like for you to give this man another chance. It is also uncontradicted that at the time of the walkout on August 9, Jamie Juarez, a union committeeman , said to Production Manager Kovalski: Look, I am going out with the boys . . . but all my shift is upset over walking out for this man . . . this man we can't back him up, I don't see how we could I don't know how you have kept him so long . . . I'm going to convince the men to come back at 10:00 o'clock. The walkout was ended with the start of the 2 p.m. shift. The record contains no evidence that any of the employees were reprimanded or disciplined for participat- ing in the walkout. On August 11, Union President Ayala told Villegas that Production Manager Kovalski had told him that there was a good chance that Villegas would get his job back if he and his wife would see Simon. Later in the afternoon, by arrangement, Villegas and his wife, Kovalski, and Simon met in the latter's office.15 Villegas' record was discussed. He signed some papers in the personnel office. Simon told him to call Kovalski the following day. On August 12 Villegas and his wife met in the personnel office with Production Manager Kovalski and two shift foremen . Kovalski informed Villegas that Simon had left the decision to him as to whether to rehire Villegas and he had decided he would if Villegas applied as a new employee and signed a statement. Villegas re- fused to sign the statement which read: AUGUST 12, 1961. I, Rudy Villegas, agree that I was dis-missed for good and sufficient reasons. I have taken notice that my request for re-employment has been refused. I do, however, wish to make a new application for employment, which I understand may or may not be favorably considered. If employed, I understand and agree that the first violation of any rules will constitute sufficient reason for immediate dis-missal. I am making this statement voluntarily. Signed : Rudy Villegas.16 Villegas left the plant and went to the Union's office and discussed the situation with a business representative of the Union who placed a telephone call to the Union's attorney in Dallas, Texas. Villegas discussed the statement with the attorney. The attorney advised him to sign it. Then Villegas and his wife returned to the personnel office where Villegas executed the statement and an application for employment. Villegas returned to work sometime during the first week of September and has continued to be employed by Respondent since then. Representatives of Respondent who testified at the hearing were unanimous in evaluating Villegas as a skilled worker whose abilities they wished to employ. The only complaint was his excessive tardiness , absenteeism , and indifference to warnings which adversely affected Respondent's production schedules and the work available for the knitters which created personnel problems. This Respondent could not "tolerate." Conclusions I recommend that the allegations of the complaint that Villegas was discharged and rehired in violation of Section 8(a)(3) and (1) of the Act be dismissed for the following reasons: 1. The uncontradicted testimony that Union President Ayala and Union Com- mitteeman Juarez admitted that Respondent had cause for discharging Villegas be- cause of his record of tardiness and absenteeism. 15 Respondent had heard that Villegas was having some domestic problems. It felt that this might be the cause of his tardiness and absenteeism It was for this reason that Villegas was asked to bring his wife 16 The statement had been drafted by Plant Manager Simon 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Villegas' "voluntarily," after receiving advice of counsel , signing the statement that he "was dismissed for good and sufficient reasons" and that he wished "to make a new application for employment, which I understand may or may not be favorably considered." 3. No preponderance of the testimony that Villegas was discriminated against in. violation of the Act. D. Alleged threat of loss of employment The complaint alleges that on or about August 9 Plant Manager Simon "threatened striking employees . . . with loss of employment if they did not abandon their en- gagement in strike activities." There is no evidence in the record to support this allegation. I recommend its dismissal.17 E. Allegation that Production Manager Kovalski fired employees who engaged in strike activities on August 9 The complaint alleges: On or about August 9, 1961, Production Manager Tom Kowalski [sic] advised' employees . . . that those employees . . . who had engaged in strike activities on or about August 9, 1961, were terminated from their employment . . . and that those of the striking employees who were to be rehired, if any, would be those "who would not make trouble." As set forth, above, Union President Ayala, on August 9, influenced employees to walk out because Plant Manager Simon had not met with Ayala and Villegas at 8 o'clock that morning. After this walkout it is undisputed that Production Man- ager Kovalski talked to the employees who remained in the plant in the looping department. The only evidence adduced by the General Counsel is the testimony of Frances de la Torre, a cotton culler in the looping department, who did not join in the walkout. She testified as follows: Q. Tell us what Mr. Kovalski told the employees. A. Well, he walked in the department and he said, "I would like for every- body to get close to me. I am not very much on speeches and I am not going to make a speech. I am just going to tell you what's going on," and then he said, "This concerns about Rudy Villegas and Gonzales who walked out and those people are fired. If we hire any of those people it will be people that will not make trouble for us or start trouble for us. I hired Rudy Villegas." "When Mr. Simon heard about this," he said "Mr. Simon was going to give him a day's layoff." "You seen a couple of weeks ago there were here two mens from another plant that have promised Mr. Simon enough sweaters for all of those people that are working right now. We are behind on 18,000 sweaters because of Rudy Villegas. He is a topper and gives work for three or four knitters in the Knitting Department." Then he said that was the reason that a lot of people had been laid off, but he promised enough work for the rest of the people that were in there. I find that this testimony which for the most part is incoherent, even if considered in the most favorable light does not support the allegation of the complaint. Production Manager Kovalski's testimony as to what he said on this occasion, which I credit, is: Q. Please detail for us what you said to the looping department on that occasion? A. Well, when I went over there I called the girls together and I said, "I think it's only fair that you all should know what is going on. At the present time there is a walkout in the knitting department," and I told them I was going to give them all of the facts as clearly and as truthfully as I could, and I would be glad to answer all of the questions they might have. 14 What Plant Manager Simon said is set forth , supra . Since the walkout was not predicated upon an unfair labor practice, Respondent had the legal right to replace the employees who participated in it subject to certain qualifications not pertinent ; especially, since all the employees returned to work beginning with the 2 p in . shift. BERNHARD ALTMANN INTERNATIONAL CORPORATION 237 I went into the details of why they were walking out, because they were protesting Rudy Villegas' dismissal, and I told them how often Rudy was absent and how many times I had to talk to him, and that even Jesse Ayala had talked to him, too, about this absenteeism to help us to control them, and I told them that Mr. Simon had been gone for the last two days, that he had gone to North Carolina to make arrangements for knitting to be done outside because we had lost such a large amount of production which we were committed to our customers for and which we couldn't possibly have made up with overtime. I believe it was over 15,000 pieces, and I told them that we had made arrangements to get this amount of knitting done outside, and if there were any other walkouts we would make arrangements to get what amount we would lose knitted over there, too. In fact the management of this other factory who was going to do this knitting had agreed to turn over all of the machinery available that we needed. The girls asked me if that meant the looping department employees would be out of work. I told them, "No, old work that was contracted for was to be finished, however, if we have any further walkouts, depending on the amount of people that are staying on their jobs , that amount of work would come in unfinished so that all would have work regardless if'the knitting department worked or not." Q. All right. Did you say that the strikers were fired? A. No. No, I didn't say they were fired, absolutely not. I told them that -they are risking their jobs by all of these walkouts because, I said, "Mr. Simon is getting very annoyed with them just walking out whenever they wanted to, and that is why he had made this contract to get goods knitted on the outside." I told them that we could hire new knitters , but I didn 't say we would fire the old ones. Q. What would be the effect of having this other factory doing your knitting on work for the knitters in the plant or the availability of work? A. It wouldn 't cut down the work for the knitters in the plant . It would just make up the lost knitting we had. Q. If you contracted out all of your knitting state whether or not your knitters would be out of a job. A. Yes, they would be out of a job. The allegation fails for lack of proof by a preponderance of the testimony. I rrecommend its dismissal. F. Motion by the General Counsel to adduce evidence that Lydia M. Williams is not a supervisor Lydia M . Williams is a floorlady in the looping department who works on the 2 to 10 p.m. shift . The supervisor is Olivia Villa who works days and leaves the plant at 5 p .m. Williams has no supervisor after 5 p .m. She has sole charge of 16 em- ployees to whom she assigns work . She can recommend their discharge . I found at the hearing and now reaffirm that Williams is a supervisor within the meaning of Section 2(11) of the Act. Williams, notwithstanding her admitted supervisory status, participated in the July 27 walkout . Concerning her action in this regard , Production Manager Kovalski, she testified, "asked me if I had a boss and I told him I did not have a 'boss. Then he asked me as long as I was in charge of that department who was in charge of that department at nights , and I said that I was the one, and he said that as long as I was in charge at night if I were to walk out he would discharge me." The General Counsel has requested in his brief that the record be reopened to adduce proof that Williams is not a supervisor and even if she is the conversation 'between her and Production Manager Kovalski is material to prove antiunion animus on the part of Respondent . Inasmuch as Williams has testified to her duties the record is complete as to her status. As to a conversation between supervisors, not made in the presence of rank -and-file employees , the subject matter of the conversa- tion is immaterial to the issues of this case. The General Counsel's request is denied. RECOMMENDATION Upon the basis of the foregoing findings of fact and conclusions of law it is irecommended that the case be dismissed in its entirety.