Fenetrol, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 796 (N.L.R.B. 1980)

796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fenetrol, Inc., a Subsidiary of Yonkers Plate Glass Co. and Shopmen's Local Union No. 445, Inter- national Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. Cases 2- CA-16214, 2-CA-16258, and 2-RC-18201 August 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On March 18, 1980, Administrative Law Judge James F. Morton issued the attached Decision in this proceeding.' Thereafter, the General Counsel filed exceptions 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, 2 and conclusions of the Administrative Law Judge and to adopt his recommended Order,3 as modified herein. 4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, i ederation of Employees Union. Local 1027, appeared as Intervenor in this proceeding. z The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Sltandard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully exainined the record and find no basis for re- versing his findings :' In an election held on February 6, 1979. the tally was seven votes for the Petitioner. six votes for the Intervenor, and one vote against repre- sentation, with three challenged ballots-all challenges being sustained. The Administrative Law Judge. based o(n the Respondent's 8(a)(l) and (2) violationtls set aside the results of the election and ordered a second election. Because of certain unlawful 8(a)(2) conduct on the part of the Respotidetl in favor (of the Intervenor, the Administrative Law Judge barred the Itervenor from appearing on the ballot in the second elec- tion. ttowever. subsequent to the Administrative Law Judge's Decision, the Intervenor filed a disclaimer of interest and the Petitioner requested withdrawal of its petition in Case 2 RC-18201. Consequently, in view of the fact that neither the Petitioner nor the Intervenor currently expresses any interest i representing the employees involved herein we have granted the Petitioner's request to withdraw the petition in Case 2-RC- 18201 In light of the ithdrawal of the petition. we find it unnecessary to rule on whether the Administrative Law Judge's directing a secotnd election and his barring the Intervenor from appearing on the ballot in such election ere proper. 4 e have modified the Administrative Law Judge's recommended Order to include the full broad remedial order language which he mad- vertently omitted We have also modified the propiosed notice o cnfirm with the provisiols of the recommended Order 251 NLRB No. 113 Fenetrol, Inc., a Subsidiary of Yonkers Plate Glass Co., Bronx, New York, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph l(i): "(i) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the request to withdraw the petition in Case 2-RC-18201 be, and it hereby is, granted. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT question you as to your mem- bership in or support for Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Work- ers, AFL-CIO. WE WILL NOT threaten to discharge or physically harm any of our employees or threaten to close our plant to discourage your activities on behalf of Shopmen's Local Union No. 455. WE WII.L NOT instruct our employees not to solicit support for Shopmen's Local Union No. 455. WE WILL NOT promise you that you will get better benefits or better jobs to discourage you from joining Shopmen's Local Union No. 455, or to encourage you to support Federation of Employees Union, Local 1027. FENETROL, INC. 7.7 WE WILL NOT make any appeals based on race or color to discourage you from joining or supporting Shopmen's Local Union No. 455. WE WILL NOT solicit our employees to join and support Federation of Employees Union, Local 1027, in order to frustrate or interfere with their right to choose their own collec- tive-bargaining representative. WE WILL NOT threaten to discharge our em- ployees to induce them to vote for Federation of Employees Union, Local 1027, rather than a labor organization of their own choice. WE WILL NOT unlawfuly aid Federation of Employees Union, Local 1027, in any way. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. FENETROL, INC., A SUBSIDIARY OF YONKERS PLATE GLASS CO. DECISION STATEMENT OF THE CASE JAMES F. MORTON, Administrative Law Judge: These consolidated cases were heard by me on October 23, 24, 25, 26, 27 and 31, 1979, in New York, New York. The pleadings in the unfair labor practice cases identify the principal issues to be whether Fenetrol, Inc., a Subsidi- ary of Yonkers Plate Glass Co. (herein called Respond- ent): (a) Interrogated its employees as to their support for Shopmen's Local No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL- CIO (herein called Local 455), disparaged Local 455 on racial grounds, threatened to discharge its employees and to close its plant to discourage them from joining or sup- porting Local 455, and engaged in other acts in violation of Section 8(a)(1) of the National Labor Relations Act, as amended (herein called the Act). (b) Solicited its employees to join Federation of Em- ployees Union Local 1027 (herein called Local 1027), threatened them with discharge if they did not support Local 1027, ordered them to vote for Local 1027, and engaged in other acts violative of Section 8(a)(1) and (2) of the Act. (c) Discharged two employees, and suspended and then discharged a third employee, because they support- ed Local 455, thereby violating Section 8(a)(l) and (3) of the Act. The ballots cast by two of the alleged discriminatees and another ballot cast by an alleged supervisor are de- terminative of the results of the election held in Case 2- RC-18201. The eligibility of each of these voters is also in issue. At the outset, I note that the National Labor Relations Board has a policy against processing a representation case in the face of a complaint alleging 8(a)(2) conduct. Obviously an exception to that policy has been applied to the continued processing now of Case 2-RC- 18201 At the hearing, counsel for Local 455 questioned wheth- er Local 1027 could participate further in that represen- tation case if it were found that Respondent, as alleged in the unfair labor practice case, initiated Local 1027's campaign and coerced its employees into supporting Local 1027. The matter is treated herein.' I have considered the entire record in these cases, the briefs filed by the General Counsel, by Respondent, and by Local 455, and the demeanor of the witnesses at the hearing. Based upon these considerations, I make the fol- lowing: FINDINGS OF FACT I. JURISDICTION Based upon the admissions in the pleadings,2 I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The parties stipulated at the hearing and I therefore find that Local 455 and Local 1027 are labor organiza- tions as defined in Section 2(5) of the Act. It. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent manufactures and installs high perform- ance windows in large apartment buildings under con- struction; it also fabricates and installs curtain walls; i.e., glass sections that make up the exteriors of modern office buildings. It began operations in mid-1978 at its present facility in the Bronx, New York City. For the first few months, a small complement of employees installed equipment, built offices, and got the premises ready for production operations. Respondent began to make the high performance windows in late 1978 and, shortly afterwards, it began manufacturing curtain walls. The in- cidents that the General Counsel contends are unfair labor practices are alleged to have occurred from De- cember 1978 to about March 2, 1979. The election was held on February 7, 1979. ' Counsel for Local 455 also requested leave at the hearing to prove that a majority of the unit employees had signed authorization cards des- ignating Local 455 as their exclusive bargaining representative This re- quest was related to Local 455's contention that a bargaining order would be proper to remedy the alleged coercive acts of Respondent In assisting Local 1027 and in undermining Local 455's support, if it were found that the allegations that three employees were discharged for sup- porting Local 455 lacked merit That request was denied as Local 455 had not filed any objections to he conduct of the election in Case 2 RC 18201 and in view of the Board's holding in Irving Air Chute Company Inc.. Marathon Divirion, 149 NLRB 627. 630 (1964) Z In the answers it riled to the complaints that issued in Case 2-CA- 16214 and 2-CA-16258, Respondent did not respond to the factual alle- gations upon which the General Counsel asserted it was an employer as defined in the Act. Its failure to so do is tantamount to an admission See Sec 102 20 of the Board's Rule, and Regulalions FENETROL, INC j 798 DECISIONS O()F NATIONAL I.ABOR REl.A IIONS BO()ARI) B. The Alleged Unfair Labor Practices 1. The initial organizational efforts In December 1978, there were about 15 employees in Respondent's employ. One of them, David Alicea, ob- tained authorization cards from Local 455's president. Nine employees including Alicea then signed Local 455 cards. The General Counsel called seven employees who tes- tified that, about a week after they had signed the Local 455 cards, Respondent's plant manager at that time, Parker Whiting, talked to them about joining Local 1027 and gave them Local 1027 cards to sign. They testified that this was the first time they had ever heard of Local 1027. One of them, Julio Martinez, testified that Whiting asked him if he had signed a Local 455 card. Another, Juan Feliciano, said Whiting asked him if he had signed a Local 455 card. Another, Juan Feliciano, said that Whiting told him that since everyone wanted a union "we" have a union, i.e., Local 1027 and, after asking Fe- liciano if he liked his job, he, Whiting, told him to sign a Local 1027 card. Luis Mota testified that he was told by Whiting that, if he voted for Local 1027, he would not be fired. Affidavits signed by another employee, Vincent Greene (since deceased), were received in evidence as exceptions to the hearsay rule for the reasons discussed infra. These affidavits relate that Greene was asked by Whiting to sign a Local 1027 card and, when Greene said he would think about it, Whiting told him that he would be fired if he did not join Local 1027. Another of these seven employees, Jay Torres, was the observer for Local 1027 at the election and he, as of the date of the hearing, was crossing a Local 455 picket line set up at Respondent's plant to go to work there. Torres said he learned of Local 1027 from Whiting and that Whiting in- vited him to attend the first Local 1027 meeting. In addi- tion to the testimony offered by the General Counsel's witnesses, the record discloses that one of Respondent's witnesses, when questioned by Local 1027's representa- tive at the hearing, testified she had signed a Local 1027 card given her by Whiting. In the answers it filed, Respondent denied that Whit- ing was its plant manager and its agent. After Whiting was called as an adverse witness by the General Counsel and testified that he had hired about 15 of Respondent's employees and fired about 5 of them, Respondent stipu- lated that he was a supervisor as defined in the Act. When Whiting was asked by the General Counsel how he first learned of Local 1027, he answered that some- one, whose identity he said he cannot recall, said to him, "Let's try to get a union started" and that some "heavy set guy" gave him papers for the employees to sign. Whiting testified that he called the employees to his office and that some signed and others did not and that it made no difference to him. Counsel for the General Counsel thereupon showed Whiting an affidavit he signed which recounted that Respondent's president, Delton Walker, was the person who asked him to have the employees sign cards for Local 1027 and that all but 2 or 3 of the 20 employees signed cards. Whiting ad- mitted that the affidavit was read to him line by line, that he made changes in the affidavit and initialed these, and that he signed the affidavit under oath. Based upon the foregoing, I find that Respondent by Plant Manager Whiting solicited its employees to join and support Local 1027. credit the General Counsel's witnesses that they were threatened with discharge by Whiting if they refused to support Local 1027 and con- tinued to support Local 455 and that Whiting interrogat- ed them as to their support for Local 455.3 2. Alleged threats by Respondent's president David Alicea testified that on January 24, 1978, the day before his discharge, he saw employees being called, one by one, to the office of Delton Walker, the president of Respondent. According to Alicea, Walker, on that same day, approached him at his work station on the second floor after the morning coffeebreak and after all the other employees had been down to Walker's office on the first floor. Alicea stated that Walker then told him that he had problems with Alicea because Alicea was talking to his coworkers on company time. Alicea replied that he talked to them only during breaks. Walker then told him to come to his office where they talked for 2 hours. Alicea stated that Walker recounted his own work career and told Alicea that he did not want Local 455 in his plant because they were Italian, and Mafia, and because they liked to hurt people. Alicea quoted Walker's use of gross expletives in referring to Local 455 and urged him to tell the employees not to vote. He also testified that Walker told him that, if Local 455 were to come in, he would have to close the doors and Alicea would pay for it. According to Alicea, Walker showed him letters which indicated that Re- spondent expected to receive over 200,000 owed it and Walker then said that, when he got that money, he would use it to help the employees. Julio Martinez, who was discharged with Alicea as discussed below, testified that about 4 weeks before the election (this would be about January 7 as the election was held on February 7) an employee, Jay Torres, told him to accompany Torres to Delton Walker's office where Torres acted as an interpreter. Martinez stated that the only thing he could recall of that discussion was that Walker told him that, if Local 455 won the election, Martinez, Torres, and he, himself, would be out in the street and that he would close the factory. Alicides (Jay) Torres testified that he had, on two or three occasions in January 1979, acted as Spanish interpreter in conversa- tions between employees and Delton Walker. In these conversations, according to Torres, Walker urged the employees to vote for Local 1027, told them that they would not have jobs if Local 455 won and that Local ' Antonio Schifano. Local 455's 'vice president. testified that on the day after he filed the petition in Case 2-RC-18201 he confronted Whiting at his office as to his passing out Local 1027 cards. He stated hat Whit- ing told him that if anyone wants his Union here he had better get an- other job. Schifano "had he sense" hat there sere people nearby but does not recall who they wcrc I find that Ihere is no prohalti ve evidence that employees overheard the remark and hence conclude that Respolnd- ent thereby did not violate Sectiln 8(a)(1) I find that tIh remark as made to Schifano and that it denllrstrate Re-ponldent's hstility to l ocal 455 VIN I R()o . IN 1027 was made up mostly of minority groups , hile Local 455 vas "white. Italians." Torres also said that Walker commented about a several million dollar con- tract Respondent was going to get and that Walker then said that the employees would have "more advantages'" if Local 1027 won. Torres testified that Walker told him personally that if he "would get the guys to turn to 1027, (he, Torres) would get soncewhere in the company." As noted above Torres served as Local 1027's observer at the election and as of the date of the hearing had been crossing a Local 455 picket line at Respondent's prem- ises. Another employee, Juan Feliciano. testified that, about 2 weeks before the election. he was called to Delton Walker's office where Walker told him that Local 1027 was the union he wanted, and that he would close the place down if Local 455 won. Feliciano stated that Walker said that Local 1027 was mostly for minority em- ployees, that Walker talked about "benefits," and that Walker had referred to a Local 1027 meeting as one which "went bad" and which his plant manager, Parker Whiting, had fouled up, to paraphrase Feliciano's testi- mony. Incidentally, it is undisputed that Whiting had been replaced as plant manager about the beginning of 1979 and that he had gotten into a fight with another employee at a Local 1027 meeting in late December 1979. Delton Walker testified that Torres never served as an interpreter for him and that he, Walker, never told Alicea, Martinez, Torres, Feliciano, or any employee that he wanted Local 1027 to win and he denied making any threats, promises, or racial remarks to any' employee. He also said that he learned of Local 1027 from Whiting and told him then that he had no interest in the matter. Another employee, Hector Delgado, testified that. about 3 weeks before the election, Delton Walker came to his worktable and asked him to attend a Local 1027 meeting set for later that day. Delgado said he told Walker he would go but that, in fact, he did not. Walker denies any such conservation with Delgado. Ernest Washington testified that, afte the election, Delton Walker asked him if he voted fortocal 1027 and he, Washington, responded that he did. Walker denies so interrogating Washington. Greene's affidavits, received in evidence as discussed later herein, disclose that Delton Walker asked him after the election if he voted for Local 1027, and that on sev- eral occasions before the election Walker asked him who he would vote for, urged him to vote for Local 1027, and told him that he could expect a raise and a promo- tion if he did. Walker denied he had such discussions with Greene. I credit the employees' accounts except as noted in the next paragraph. Walker's testimony that he was totally indifferent to Parker Whiting's activity on behalf of Local 1027 does not ring true. His denial that Torres ever acted as his interpreter when Torres, who was Local 1027's observer at the election, said he did is not believable. I do not credit Alicea that his 2-hour conversation with Delton Walker occurred on the day before he was discharged. His detailed account convinces me that there w',as such a conlversation; I its suhstance parallels the cred- ite testimniii of the other eiilploees I intl, foi the rea- sons alluded to ill tile discussionl hlos ;as to his is- charge. Itlil Alicca coll.lenicntl moved the time fralc1 of that conversation to a later date to support his claili that the timing of his discharge as related to his union acli ities. ()n the basis of these credihilitf resolutions. I find that Delton Walker interfered with Alicca's right to organize eniployees in the plant by telling him he had had a prob- lem with Alicea doing that, that Walker denigrated I.ocal 455 on racial issues,4. that NValker threatened to close the plant and harm Alicca if l.ocal 455 uon, that Walker promised promotions and benefits to employees to discourage their support for Local 455. that Walker threatened to discharge employees for supporting L.ocal 455, and that Walker solicited employees to attend I.ocal 1027 meetings and interrogated employees as to how they voted. 3. Alleged coercive acts hb Oscar Walker Oscar Walker is the brother of Respondent's president. Delton Walker, and is employed by Respondent as a field representative. Delton Walker referred to him, in his testimony, as his ,sorkiing partner for the past twenty years" and as Respondent's glazer forema in field work. The complaints in these cases alleged that Oscar Walker is a supervisor and an agent of Respond- ent. The answers filed by Respondent make no response to that allegation. Plant Manager Benigno referred to him as his superior. Based on the foregoing, I conclude that Oscar Walker is an agent of Respondent. David Alicea, one of the alleged discriminatees stated that on or about January 17 or 18, 1979, Oscar Walker called him to his office and told him that he did not want Local 455 there and that, if Alicea succeeded in bringing it in, Respondent would close its doors. Alicca said that Oscar Walker told him that he did not want "Italians, white people, here." (Local 455's president. William Colavito, and its vice president, Anthony Schi- fano, are white. Delton and Oscar Walker are Black.) According to Alicea, Oscar Walker further stated that Alicea was the only one who could persuade the em- ployees to vote against Local 455 and that Local 455 killed people and the same thing could happen to Alicea Alicea stated that Oscar Walker told him that Local 1027 was a good union and that Alicea could choose any union for the employees but not Local 455. Jay Torres testified that he translated into Spanish statements made in January 1979 by Oscar Walker to Spanish-speaking employees in which Walker urged them to vote for Local 1027. Employee Luis Moto stated that, about 3 days before the election, Oscar WValker told him that he should vote for ocal 1027 and that Moto In rnaking this delermilti on I noen thai Jamne [lnrilgO h, %hi sa Re'pondenit', pla;nl manarger fronm i ;1e ID)tchsr l'q7g until the prlng I i7')9 then tie left Respondents cilploiy s.a, ncilh r llk inor .a t11- pillls It imprcs,l me; a, a cr 5 hltressilkt ne.lrl I tirnllst orll tl}.lt Respotdet'fl' s red fior his rlanagtcril [tlcrlx tlicii ill. iletlg ced it, Attell pt tIo ItIt'ttlf,. il racial grri llltls, i t' itr s i t' Re'p"lll ilt l l u11 tlM I a 1(2 st l I 1.i's .O tit'l c p'it 7,),) I) LCISI()NS ()F NAI )NAI. IAI()R Rl.AtllIO()NS O()ARI) could keep his job. Another employee, Hector Delgado. stated that, on the same day that Plant Manager Parker Whiting first talked to him about Local 1027, he was ap- proached by Oscar Walker while working and that Walker told him that there could be no union in the plant because there was going to be a CETA program there. Delgado said that lie told Walker he got his job on his own, not through CETA. The affidavits of Vincent Greene, discussed elsewhere in this decision, relate that Oscar Walker told Greene to vote for Local 1027 because it is a minority union (Greene's mother who testified at the hearing is Black) and that Local 455 was "mafia run." Greene's affidavits further state that, in December 1978, Oscar Walker asked Greene to sign a Local 1027 card and that he then signed one. The parties stipulated at the hearing that Greene signed a Local 1027 card on December 21, 1978. The last paragraph of one of Greene's affidavits relates that Oscar Walker told Green that if he Greene, "was telling 455 what was happening with 1027, he (Oscar Walker) would find a way to fire (Greene)." Oscar Walker denied ever talking to Alicea, Torres, Moto, Delgado, Greene, or any of Respondent's employ- ees about Local 455, Local 1027, or any union and he denied making any coercive or racial statement to any employee. I credit the employees over Oscar Walker's summary denials. They impressed me as truthful in their accounts of their discussions with him and I note again that Torres who was not honoring Local 455's picket line as of the day of the hearing and who was the Local 1027 observer submitted evidence which corroborated the tes- timony of the others. I thus find that Respondent, via Oscar Walker, threatened to close its doors if Local 455 won, disparaged Local 455 by his racial remarks, threat- ened that Alicea would be killed, solicited support for Local 1027, threatened employees with discharge to en- courage support for Local 1027, and told them that there could be no union in Respondent's plant. I reject the General Counsel's contention that Oscar Walker's re- marks to Greene should be construed as creating the im- pression that Respondent was engaged in the surveillance of Local 455's activities.5 4. The alleged unlawful discharges of David Alicea and Julio Martinez Alicea began working for Respondent on September 6, 1978, as a general laborer. In December 1978 as noted ' II his brief the General Culnsel argues that ()scar Walker created this impression when he Iold Greenc Ihal, if Greene "was telliing" Local 455 what :as happening, he hwould find a way to fire Greene The Gen- eral Counsel also contends that Dellon Walker's remark to Greene thai he kne, that he voted fr Local 455 created the same mpressioln. he tes to bhe applied is whether Greene could have reasonably assunmed from those remarks that Respondenl had placed his union activities ander sur- ,eillance South Shore Ili>spiltl. 229 NtlRB 363 (1977). These remarks in- dicate that Respondenl as desperate n its efforts to discourage acutivil on behalf of l.ocal 455 and suggest, the contrary. that it was seeking a ,a) tIo penietrate that support. (ireene's statement indicatle this as he alsi quooled Dellon Walker as sayilg that either he (Greene) or anotlher en- ployec. Washingoln. as lying as to hasing svoted for Local 1027 1 also lind that Delton Walker's corilmet to Alicea that hie ras passing oul ocal 45s cards orn cornpalli tiine did lot create the ipressiil of sur- ci\llitr a Allcca distributed tnsC airds n his isAll time previously, lie obtained authorization cards from Local 455's president. Ie signed one and obtained signatures from eight other employees. He accompanied Local 455 representatives to the conference at the Board's Regional Office in New York at which Local 455, Local 1027, and Respondent entered into an agreement for consent elec- tion in Case 2-RC-18201. Alicea notified employees of Respondent as to the times and places of the Local 455 meetings and attended these. Alicea asserts, also as noted above, that Delton Walker and Oscar Walker vigorously urged him to drop his support for Local 455, that Delton Walker, on the day before Alicea was discharged, told Alicea that, if he makes him close the Company by bringing in Local 455, he (Walker) will make Alicea pay for it; and that Oscar Walker had told him that he, Alicea, was the only one who could persuade the em- ployees to vote against Local 455. Jay Torres quoted Delton Walker as having said that Alicea was the strong- est Local 455 supporter. Vincent Greene's affidavit re- flects that Delton Walker asked him to choose between Alicea and the Respondent. Respondent's plant manager, James Benigno, who dis- charged Alicea, acknowledged that Alicea was "a damn good worker." He stated that he fired Alicea on January 25, 1979, because Alicea engaged in an act of stealing when he punched out the timecard of an absent employ- ee, Julio Martinez. Martinez, who had worked alongside Alicea and had signed a Local 455 card at Alicea's re- quest was discharged by Benigno when he reported for work on January 26, 1979. Martinez had also signed a Local 1027 card given him by the former plant manager. Respondent asserts that Martinez was discharged because Alicea punched his card out. The General Counsel contends that Alicea and Mar- tinez were discharged in violation of Section 8(a)(l) and (3) of the Act because of their support for Local 455 and asserts that the reason given by Respondent for discharg- ing them was pretextual. When Alicea and Martinez began working for Re- spondent, there was no timeclock there. It was not until about mid-January that the then newly hired plant man- ager, James Benigno, installed one. Alicea and Martinez were among a group of about four employees assigned to work on the first floor, near Benigno's office. Alicea testified that on January 24, 1979, the day before he was fired, Julio Martinez asked him in Spanish to tell another employee, Tommy Turner, that he, Mar- tinez, could not come to work the next day because he was not feeling well. Alicea said that he told this to Turner in English who said that he would tell "Parker or Jimmy." (Parker Whiting at that point had been re- placed as plant manager by Jimmy Benigno.) On January 25, 1979, according to Alicea, he punched out his timecard at 4:30 p.m. (his timecard so reflects) and waited about 15 feet from the timeclock for another employee, Vincent Greene, to come downstairs to punch out. Alicea stated that he and Greene had planned to meet that afternoon with representatives of Local 455 to tell them about the coercive interviews Delton Walker had conducted the previous day. (There is no reference, in Greene's affidavits and which were received in evi- 8(0( [:NiTRO[,)I IN( dence, to any such appointment.) Alicea said that, when Greene did not come down promptly, he started to leave the plant. At that point, Plant Manager Benigno called him and told him that he had punched out Martinez' card. Alicea told Benigno that he did not and went with Benigno to Delton Walker's office. The following is Ali- cea's account of what transpired there. Present were Delton Walker, Oscar Walker and his wife, Benigno, and himself. Delton Walker stated that he wanted to talk about what happened and Beningo stated that he saw Alicea punch out Martinez' card. Alicea denied doing so. At that point, Oscar Walker said that this was a trick that they were playing on him and that they wanted to talk it over with him. Alicea said that he did not want to talk to them on his own time but would talk to them the following day; he began to leave.' Benigno told him he need not come in the next day because he was fired. Oscar Walker then said that Alicea was not fired and that they would talk it over. Delton Walker also said that he was not fired. Alicea said that Benigno neverthe- less said that he was fired and at that point he walked out of the office and left the building. Julio Martinez testified that on January 24, 1979, he told David Alicea, who was working with him then, to tell Turner that he would not work the next day because he was not feeling well. When asked why he chose to have Alicea leave this message with Tommy Turner who is a unit employee, Martinez answered through the offi- cial Spanish interpreter: "At that time the foreman was Jimmy Benigno and as I was working he was also work- ing I passed by and I told him." Martinez further testi- fied that he did not hear Alicea convey the message to Turner on that afternoon. On cross-examination, Mar- tinez acknowledged that he had said in an affidavit he signed that he, Martinez, had told Tommy Turner, on January 24, that he would not be going to work on the following day, because he was no, feeling well. He testi- fied that that was a mistake as he in fact had told David (Alicea) to tell Tommy (Turner). Respondent called Tommy Turner as its witness. He denied ever being told on January 24, by Alicea or Mar- tinez, that Martinez would not be able to work the next day because of illness. Turner began working for Re- spondent in August 19;8 as a laborer: his principal func- tion is to load and unload trucks. He also signed time- cards of other employees when directed to do so by foremen and on one occasion, an employee, Vincent Greene had told him to tell the plant manager that he was leaving early. Occasionally he, Turner, blew a whis- tle around coffeebreak time, apparently to signal its start or its end. In any event, it is undisputed that Julio Martinez was absent on Thursday, January 25, 1979, and that his time- card was punched in for that day. Benigno, who was plant manager for Respondent from late December 1978 s Counsel fr Respondent argued at the hearing that Alicea's act in leaving constituted insubordination which on ils face precluded the Gen- eral Counsel from making ou a prima Juac case f discrimlnnalory dis- charge The CGeneral Cuncl assert Ithat thi i -li an er titanct of clear pretest being given b Respondent a a reason for distlhargilng Ahcea The fact is that counsel for Respondent had just bheen retained by 1i and was simply making a motion in the ature of a general demurrer No ei- dentiary weight should be attached io such a motion to about April 1979 when he left its employ, testified that Oscar Walker told him on January 25 that a card was punched in and the employee, whose card it as, was not even in the shop. Walker then took him to the timecard clock and pointed to Martinez' card. Benigno said that he walked through the floors of the shop look- ing for Martinez without success. He said he then enlist- ed the help of Oscar Walker, Tommy Turner, and the truckdriver, Clyde Strull, to see if anyorne would punch out Martinez' card later that day. About quitting time. 4:30 p.m., he stationed himself near an automatic saw machine about 40 feet from the timeclock. ie stated that he saw David Alicea punch a timecard, alk toward the exit door about 10 feet away, talk briefly to two or three employees, and then return to the timeclock where he pulled another card and punched it out. At that point, Benigno said he rushed to the clock, called Alicea by his first name, and asked Tommy Turner who was standing about 10 feet away if he had seen Alicea punch two cards and Turner said that he had. enigno told Alicea to come with him to Delton Walker's office. According to Benigno, only he. Alicea, and )elton Walker were in the office. Benigno testified that he told Alicea that what he did was, in Benigno's mind, an act of stealing and that he was fired as of that moment. Walker asked what was going on. Benigno began to explain hat had happened but Alicea interrupted to tell him that he could explain on his time, not Alicea's: at that point, Alicea walked out. Delton Walker's account as to what occurred in his office then was substantially the same as Benigno's. On the following day. hen Julio Martinez reported for work, Benigno told Martinez he was discharged be- cause he "had something to do with what was going on" especially as he had not called in to explain his absence the previous day. Oscar Walker testified that. in the early afternoon of January 25, he noticed that all the timecards were i the 'In" rack and asked Benigno to check ol this because it is unusual for everyone to be in. Ie stated that previous- ly there was one day when all the cards were in the "In" rack and, on that occasion. he did not mention it to anyone. His affidavit related that there had been several such days. He said he did not go with enigno to the timeclock. Later. he told B3enigno to uwatch the time- clock at 4:30 p.m. when the employees were scheduled to punch out. At that time he stationed himself about 40 feet from the clock. He observed a number of eniploy- ees, including Alicea punc'l out. Alicea then talked in Spanish to some other employees and then returned to the tirmeclock where he punched a second card out. He said that Benigno called to Alicea and then took Alicea to the office. ()scar Walker said that he did not go with them there. Respondent called two other \witnesses to support its claim that Alicea punched out Martinez' card. The first, Carol eWitt had been employed b Respondent on January 25. 197'), but is n(i longer in its etmpli!' She stated Ihlat, ort Jailuary 215, it, shet C;ilc. (i(do1l1 tIltl st air- case ,s ith a co\xorker, Malil P cdri.'a!. Site sa\\ Aicea and liector elgado standing ear the door speaking in Spanish, tlhat Alicea ent back to the timeclock. S")R D)FtCISI()NS ()OF NA I'IO()NAL LABOR Rll.AIO()NS B()ARI) punched a card at which point Benigno called to him. She said that her coworker, Maria Pedraza, told her after they had punched out that Alicea was going to get fired because Hector D)elgado had told Alicea i Spanish to "punch the card DeWitt said, on direct examination, that Alicia was right behind her when she punched her card; all affidavit she signed before the hearing stated that Alicea punched out ahead of her. Maria Pedraza was the last employee witness called by Respondent. She had appeared pursuant to a subpena served on her by the General Counsel to testify in his case-in-chief but she left the building before she was called to testify. She appeared in the morning of the last day of the hearing to testify pursuant to a subpena served on her by Respondent but disappeared again. She was located in the afternoon and met briefly with Re- spondent's counsel before she took the witness stand. To put it mildly, she was a most reluctant witness. She testi- fied that she was employed by Respondent on the day Alicea was discharged and that she came down the stair- way with Carol DeWitt to punch out at or about 4:30 p.m. that day. She stated first that she saw Alicea and Delgado speaking in Spanish but could not hear what they were saying. Respondent's counsel then asked if she heard Delgado tell Alicea to go and punch a card and she answered in the negative. He then asked her if she had not told him a few minutes before in the hallway outside the hearing room that Delgado had in fact told Alicea to punch a card and she then answered that she did and she also said that her answer to him at that time was true. She further testified that she and Carol DeWitt punched out and that she saw Alicea punch a card. She said that, at that point, Benigno called to Alicea and that she told Carol DeWitt, "Oh my God, someone's going to get fired" ()n cross-examination, she stated she could not remeniber whether Delgado said anything to Alicea. The parties stipulated at the hearing that the timecards for January 25, 1979, disclosed that six cards, including Alicea's were punched out at 4:30 p.m.; that seven others, including Turner's, were punched out at 4:31 p.m.; that five others (including Martinez', Delgado's, DeWillt's, and Pedraza's) were punched out at 4:32; that another employee punched out at 4:33; that the next to last was punched out at 4:35. and that the last, Vincent Greene's, was punched out at 4:36 p.m. The General Counsel contends that Alicea and Mar- tinez were framed by Respondent so that it could have an excuse to discharge them; Respondent contends that they had been caught in the act. Both contentions appear to he implausible but one has to be substantially true as Alicea either did or did not punch out Martinez' card. On the one hand, it would seem unlikely that Alicea and Martinez would have undertaken a scheme to defraud Respondent of a day's pay for Martinez where they were about the only employees who worked next to the plant manager's office and where there were only 21 timecards in the racks. The likelihood of discovery would obvious- ly be very high. It would seem improbable that these employees would take such a great risk for such a small sum of money. On the other hand, the General Counsel's view pre- sents another implausible scenario. He in effect urges that, when Tommy Turner was told by Alicea on Janu- ary 24 that Martinez would not be able to report for work on the following day, Turner relayed this to Ben- igno and that thereupon Respondent plotted to set up Alicca and Martinez. Respondent would then have had to make plans to have someone punch in Martinez' card on the morning of January 25, had to arrange to have an employee punch out Martinez' card that afternoon a few minutes after Alicea had punched his, and had to hope that Alicea would then still be in the vicinity of the time- clock when Martinez' card was punched in order that he could be accused of having done it. Obviously, such a carefully contrived plan would have fallen apart if Alicea left the plant immediately after he punched out his own card. Of course, Respondent could have further contrived to arrange to have someone engage Alicea in conversation to keep him near the timeclock for several minutes until someone else punched Martinez' card but there is no contention by the General Counsel that Alicea was so stalled. Such a scheme would also have re- quired Respondent to enlist several coworkers of Alicea and Martinez to take part in the conspiracy and to hope that none would disclose its efforts. An examination of the proffered evidence discloses in- consistencies, contradictions, confusion, and implausibil- ities on both sides. Thus, it seems unlikely that Martinez gave Respondent indirect notice on January 24 of his in- tention not to be at work on January 25 because he was not feeling well. Were he that sick, likely he would have sought out Benigno whose office was nearby in order to be excused to go home right away. He did not. His ex- planation as to why he chose to relay his notice through Turner, whose job is to unload trucks, was incomprehen- sible. Ils testimony at the hearing that Alicea translated his notice for Turner's benefit was contradicted by his, Martinez', own affidavit wherein he said that he told Turner that he would not be in to work the next day. Alicea's account presents similar weaknesses for the General Counsel. It is highly improbable that Respond- ent would have concocted such an elaborate plan to set him up only to have Oscar Walker admit to him, as Alicea testified, that Respondent was playing a trick on him. It is even more unlikely, as Alicea testified, that the plant manager would have told him lie was fired right after Respondent's president, Delton Walker, had said he was not. Again, Alicea testified that, on the day before he vas discharged, Delton Walker called employees into his office one by one to pressure them to support Local 1027. Other employees testified that those interviews oc- curred earlier in January and in December. No employee corroborated Alicea's account that all were interviewed, one by one, on the day before Alicea was discharged. As found above, those interviews, including Alicea's, oc- curred long before the day Alicea was discharged. Fur- ther, Alicea asserted that he and Vincent Greene had an appointment to meet with Local 455 representatives at a restaurant right after work on January 25 to tell them about those interviews and that he was aiting for Greene to punch out on that day. Greene's affidavits do not support this. Inexplicably, Alicea stated he waited but 2 minutes and then was in the process of leaving without Greene when the plant manager called to him. Greene punched out only 4 minutes later. It is reasonable s(2? FENEIR()l IN( 803 to suspect that Alicea's leaving so quickly had nothing to do with Greene. Respondent's case has its own deficiencies. Oscar Walker testified that it was unusual for all the cards to be in the "In" rack but conceded that this had in fact happened bcfo)re. Bcnigno testified he checked timnecards every morning but. somcho,. that morning, he did not. Oscar Walker said that Becnigno informed him that Mar- tinez was the missing emplocLee whereas Benigno said that Oscar Walker ,was the one who told him that it was Martinez' card that was punched in. One fact is undisputable. Martinez' card was punched out at 4:32 p.m. on January 25, the same time that Carol DeWitt, Maria l'edraza, Hector Delgado, and another employee, E. Torres (not Jay Torres), punched out. DeWitt testified that Alicea punched a card out just before she did and that the statement in an affidavit she had given that he punched out after she did was incor- rect. Pedraza testified that Alicea punched out, then DeWitt, and lastly herself. The General Counsel has failed to establish by a pre- ponderance of the credible evidence that the reason given by Respondent for terminating Alicea and Mar- tinez was pretextual. I do not credit Alicea or Martinez that they told Turner on January 24 that Martinez would be out sick the next day. I do not credit Alicea's state- ment that he was waiting for Greene to come down to punch out but got impatient and decided to leave with- out him to meet with Local 455 representatives. I do not credit his account of the termination interview and par- ticularly his statement that Oscar Walker told him it was all a trick being played on him. I do not credit his denial of Respondent's assertion that he punched out Martinez' card. I find that he did punch out that card. The incon- sistencies in Respondent's case lead me to suspect that it had information that Alicea would punch out Martinez' card on January 25 and that it was happy to be handed a reason to discharge him. Even so, it could lawfully dis- charge him.7 The General Counsel's proof is unpersua- sive and inadequate to establish affirmatively that Re- spondent's reason was a pretext. The allegation in the complaint that Respondent discharged Alicea and Mar- tinez because of their support for Local 455 should be dismissed. 8 5. The alleged unlawful suspension and discharge of Vincent Greene Vincent Greene had been employed by Respondent as a general laborer since the fall of 1978. He was dis- charged on or about March 2, 1979, about three weeks after the election held in Case 2-RC-18201. He signed two affidavits during the course of the investigation by the Board's regional office of the unfair labor practice charges upon which the complaints in these cases were based. He died from a fall on July 23, 1979. As noted above, those affidavits were received in evidence as ex- ceptions to the hearsay rule. At the hearing the parties stipulated that he signed a Local 455 card on December 21, 1978. His affidavits re- flect, other employees testified, and former Plant Man- ager Whiting conceded that Greene and Whiting got into an argument at a Local 1027 meeting when Greene ' See Romso and Maotracco, Inc.. d/oa (;iant Open ir arAt., 21 NLRB 945 t1977): Kate lolt Company, 161 NLRB 1606 (196t) * See Rock ienn Company. Corrugated limisrton, 234 NLRB 823 (19781 accused Whiting of threatening employees to force them to join Local 1027. Also, as found above, Delton Walker called him a liar when he told Walker that he voted for Local 1()27 in the election. Greene had received written warnings for excessive absences,, and tardiness: Greene and Ernest Washington had the worst attendance records of Respondent's employees. The essential facts leading up to Greene's discharge do not appear to be in dispute. He had been absent on Feb- ruary 21 and again on February 26, 1979. When he re- ported for work on February 27, Plant Manager Benigno met with Hector Delgado, two other unidentified em- ployees, and Greene. I-e asked the first three why they had not called in on February 26 to account for their ab- sences from work that day and gave them written warn- ings which they signed. Benigno then asked Greene for his note and Greene said he had left it at home and asked why he needed one as he had called in. Benigno told him to go home and get the note. He left and returned with a doctor's note which stated that he had been absent on February 21 and 26 because he suffered from rheumatic heart disease and arterial hypertension. Benigno asked him why did he not bring in separate notes for those two days and Greene stated he had forgotten to get a note from his doctor on February 21 and had obtained one note for the 2 days instead. Benigno reminded him that when he, Greene, had called in on February 26, he had said that he would be out that day because he had to take his mother to her doctor and Benigno pointed out that the doctor's note Greene brought in made no refer- ence to that. Greene said that Benigno misunderstood him. (Greene's mother testified for the General Counsel and made no reference to her son taking her to see a doctor.) At that point, Benigno told Greene he was sus- pending him for I day and ordered him to leave. Greene became belligerent and refused to leave. Benigno testified that Greene followed him throughout the shop annoying him. Greene left only after the police were called and asked him to leave. He returned to work on February 28. He was given a written warning based upon his at- tendance and his insubordination; the warning noted that Greene had no respect for authority. On March 2, he re- ported for work 33 minutes late and told Benigno that his chest was hurting. Benigno testified that, in his opin- ion, Greene was in no condition to work and that he was a dope addict who had been on "Cloud 9" on February 28 and March 1. Benigno told Greene on March 2 "this is it I have to let you go." Greene asked for his check, waited about an hour for it, and left. The complaint alleges that Greene was suspended on February 27 and discharged on March 2 because of his support for Local 455. The General Counsel, in his brief, argues that the reference in the February 28 warning to Greene's lack of respect for authority disclosed a dis- criminatory motive as it apparently indicated a shifting defense. I reject that contention in view of Greene's bel- ligerence and harassment of Benigno on February 27. 1 find also that the evidence is insufficient to show that the reason given by Benigno for discharging Greene is a pre- text. The note from Greene's doctor indicates he was very ill. Benigno's assertion that Greene was barely able FNTR. INC tO3 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to function on February 28 and March I was not con- tested. Greene himself acknowledged that on March 2 he was over a half hour late for work and that he told Ben- igno that his chest was hurting. The General Counsel nevertheless urges that Greene should have been kept on because Ernest Washington, who also had an atrocious attendance record, was not discharged and that Respond- ent's reason for its terminating Greene was patently false. Benigno stated that he did not discharge Washington be- cause he needed him to get a job out. There is nothing in the record to indicate that, when Washington was on duty, he was in any way unable to perform his duties. I find that the General Counsel has failed to establish by a preponderance of the evidence that the reasons given by Respondent for suspending and later discharging Greene were pretexts. The evidence is insufficient to establish that these acts were based upon Greene's activities for Local 455, which occurred several months previously. CONCLUSIONS OF LAW 1. By interrogating its employees as to their support for Local 455, threatening them with discharge to dis- courage that support, threatening to close the plant should they select Local 455 as their collective-bargain- ing representative, threatening employees with physical harm to dissuade them from continuing to support Local 455, denigrating Local 455 before its employees on racial grounds, telling employees there could be no union in its plant, promising benefits and job promotions to induce them to abandon Local 455, and repeatedly soliciting their support for Local 1027 and obtaining authorization cards for Local 1027 and engaging in the other conduct specified under paragraph 3 below, Respondent inter- fered with, restrained, and coerced its employees in the exercise of their rights under Section 7 of the Act and thereby violated Section 8(a)(1). 2. Respondent did not create the impression to its em- ployees that it was engaged in the surveillance of Local 455's activities and that allegations in the complaint should be dismissed. 3. By soliciting support for Local 1027, including ob- taining authorization cards for it upon the advent of Local 455's campaign, inducing employees to attend Local 1027 meetings, permitting the attendance at and participation in one of Local 1027's meetings of its plant manager, by promising benefits to employees in return for their support for Local 1027, by disparaging Local 455 while endorsing Local 1027 on racial grounds, and by threatening employees with discharge if they failed to support Local 1027, Respondent unlawfully contributed support to Local 1027 and thereby violated Section 8(a)(2) of the Act. 4. Respondent did not discharge David Alicea, Julio Martinez, or Vincent Greene, or suspend Vincent Greene because of their activities in behalf of Local 455 and did not violate Section 8(a)(3) of the Act as alleged in the complaints. These allegations should be dismissed. 5. For the reasons set forth below under the Remedy, it will effectuate the purposes of the Act to conduct an election as soon as practicable after Respondent complies with the provisions of the Order recommended herein and in which election, all the production and mainte- nance employees of Respondent employed at its Bronx, New York, facility should vote whether or not they desire to be represented by Local 455 for the purposes of collective bargaining; provided further that Local 1027 shall be excluded from appearing on the ballot therein, for the reasons set forth infra. 6. The statements in the affidavits of Vincent Greene were not barred by the hearsay rule for the following reasons: Greene died several months before the hearing in this case. The General Counsel offered into evidence two af- fidavits Greene had given field examiners employed in the Board's Regional Office to prove, among other things, that he was threatened by Whiting and by Delton Walker, Respondent's president, and later discriminatori- ly suspended and discharged. The General Counsel con- tended that these affidavits are admissible under Rule 804(b)(5) of the Federal Rules of Evidence which pro- vides that, where the declarant is not available to testify, as indeed Greene was not, a statement by the declarant is not excluded by the hearsay rule if it meets the condi- tions specified in the rule. Respondent urged in its brief that the offer of Greene's affidavits should be rejected because, although the General Counsel gave notice prior to the hearing that it intended to offer Greene's affida- vits, Respondent was not advised of the particulars of the affidavit, as required by Rule 804(b)(5). The General Counsel asserts that it met that requirement by having advised Respondent in writing that it intended to use Greene's affidavits to support designated allegations of the complaint which state, among other things, that Re- spondent suspended and discharged Greene because of his activities on behalf of Local 455 and threatened em- ployees through its former Plant Manager Whiting. I find no merit in Respondent's objection on that proce- dural ground. Respondent also objected to the receipt of these affida- vits on the ground that they do not meet the require- ments of the "Former Testimony" exception, set forth in rule 804(b)(1). The short answer to that contention is that the affidavits were not offered pursuant to that ex- ception but rather to the "other exceptions" contemplat- ed under Rule 804(b)(5). Nevertheless, I am troubled by the question as to whether Rule 804(b)(5) was ever in- tended by the Congress to apply to affidavits taken in the course of an ex parte administrative investigation which could lead to a formal adversary hearing. Inferen- tially, it can be argued that Congress considered and re- jected such use by its adoption of Rule 804(b)(1) which allowed use of prior testimony only where the party against whom it is offered had an opportunity, when the testimony was given, to cross-examine the declarant. That argument appears to be buttressed by the rejection by the Congress of a proposed rule, then numbered 804(b)(2), "Statement of Recent Perception." The origi- nal draft of that proposed rule provided broadly for the admission of any hearsay declaration of any unavailable declarant. Opposition to that broad rule developed be- cause it countenanced the use of ex parle statements care- fully prepared by lawyers, claims adjusters, or investiga- tors with a view to pending or prospective litigation. FENETROL.. INC 805 Presumably, the preparation of an ex parte affidavit by a Board field examiner would meet the same objection. In any event, the proponents of the rule revised it excluding the use of such ex parte statements. Even with that modi- fication, Congress rejected the proposed rule because it created a new and unwarranted hearsay exception of great potential breadth. One commentator has remarked sarcastically that ultimately all trustworthy hearsay evi- dence will be admissible except "former testimony," In its brief, the General Counsel urges that the affidavits are admissible in part because they were taken strictly in ac- cordance with the provisions of the General Counsel's casehandling manual. The parties so stipulated at the hearing. In effect, the General Counsel urges that a pre- sumption of regularity should be attached to the hearsay statement but that still does not overcome the fact that Congress appears to have rejected the use of ex parle tes- timony whether offered under the "Former Testimony" exception, or under the original Rule 804(b)(2) or as the rule was revised. The courts and the Board have not adopted such a strict construction of those rules. Thus, grand jury testimony by declarants was admitted against defendants where, from the overall circumstances, it ap- peared to be reliable. See U.S. v. Garner, 574 F.2d 1141 (4th Cir. 1978); U.S. v. Carlson, 574 F.2d 1346 (8th Cir. 1976), cert. denied 431 U.S. 917 (1977). Other forms of hearsay statements have also been admitted where the surrounding circumstances indicate their trustworthiness. See U.S. v. Ward et al., 552 F.2d 1080 (5th Cir. 1977), cert. denied 434 U.S. 850 (1977); U.S. v. Lyon, 567 F.2d 777 (8th Cir. 1977); U.S. v. Medico, 557 F.2d 309 (2d Cir. 1977). Strangely, in several civil cases where there is no constitutional right of confrontation, the courts adopt- ed the stricter construction. Thus, in matter of Council Commerce Corporation v. Sterling Navigation Co., Ltd., 444 F.Supp. 1043 (D.C.N.Y. 1977), testimony taken under local bankruptcy rules was inadmissible because such hearings are nonadversary. In Hewitt v. Hutter, 432 F.Supp. 795 (D.C.Va. 1977), a deposition taken in Cali- fornia was not admissible against plaintiff where the cross-examination in California was conducted by a party whose interests were diverse from the plaintiffs. I think it is a fair reading of the legislative history of Rule 804(b)(5) and of the cases construing it to view it not in relation to Rule 804(b)(1) or to any of the other exceptions where a declarant is unavailable. Rule 804(b)(5) gives a court discretion where there is shown the necessity for receiving the hearsay evidence and where the circumstantial evidence is substantially consist- ent with the hearsay statement or otherwise indicates its trustworthiness. The Board in effect has adopted this same approach in considering hearsay evidence as it has held that the rules of evidence in the Federal courts are to be followed to the extent that they are practicable. See, e.g., Alvin J. Bart and Co., Inc., 236 NLRB 242 (1978). It is evident to me that the statements in Greene's affi- davits on material points were corroborated by agents of Respondent. Whiting conceded he asked the employees under him to sign Local 1027 cards; Greene's affidavit reflects that he was one of those employees. Respecting the discharge of Greene, his affidavits are not at substan- tial variance with Respondent's account, e.g., Respond- ent's plant manager testified Greene was not physically able to work when he was discharged and Greene's affi- davit states he showed up 33 minutes late for work and that his chest was hurting. Greene's affidavits were prop- erly received as relevant hearsay evidence on the issues in this case. It may have been the better practice to have had the Board agent who took Greene's affidavits testify as to the circumstances under which the affidavits were taken. In that regard, cf. 2, Jones on Evidence, 6th ed. § 3:29. As the affidavits were otherwise authenticated and as Respondent did not seek to call the Board agent who took them, I am satisfied that the mode of proving the hearsay statements used by the General Counsel was proper. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist therefrom and to take affirmative action described below. As noted previously, Local 455's counsel had sought a bargaining order for Local 455 in the event that the alle- gations that Alicea, Martinez, and Greene were dis- missed, as they have been. Local 455 contended that it should have been permitted to establish its majority status so that a bargaining order could issue to remedy the egregious unlawful acts of Respondent in bringing in Local 1027 and in threatening and otherwise coercing its employees. There is no doubt that Respondent's acts pre- cluded the holding of a fair election and that a posting remedy alone is inadequate. Local 455 nevertheless made a considered judgment not to file objections to the con- duct of the election held in Case 2-RC-18201. Clear precedent bars the issuance of a bargaining order remedy where objections were not timely filed respecting the conduct of a Board elections Stability in labor relation policies for everyone is enhanced by this simple proce- dural requirement and to carve out exceptions to it based on equitable considerations, as Local 455 urges, will ulit- mately do more harm than good. This, however, does not mean that nothing should be done other than order the posting of notices. Respondent willfully set out to in- terfere with the right of its employees to select freely whether or not they desired to be represented by Local 455. Respondent brought in Local 1027 for this express purpose. It would be entirely improper to allow Local 1027 to continue to front for the Respondent in the con- current representation case. In that case, as discussed below, I recommend that the three determinative chal- lenges be sustained. On that premise, the second revised tally of ballots will show that seven employees voted for Local 455, six voted for Local 1027 and one voted against representation. Under Section 102.70 of the Board's Rules, a runoff election should be set between Locai 455 and Local 1027. With the key Local 455 sup- porter, Alicea, now gone from Respondent's employ, along with two others (Martinez and Greene), it takes no " Irving Air Chule Companv. Inc. Marathon Dvmionl. 149 NLRB 627. 630 (1964) FENETR()L. IN 805 806h DlCISIONS ()F NA FIO)NAI. L.AI()R RATIO()NS BOARID crystal ball to suggest that Local 455's chances against Local 1027. after the expiration of the posting period, are virtually nil. We have seen that it contravenes clear precedent to set aside that election now in the absence of objections in order to issue a remedial bargaining order to Local 455. In a case similar to the instant one but which involved less egregious conduct by the employer there, the Board ordered it to withdraw and withhold recognition from the assisted union and instructed its regional director not to use any of the cards the assisted union obtained with that employer's assistance in the processing of any peti- tion later filed.'t It further instructed its regional direc- tor to except from the assisted union as a valid showing of its interest in any such representation case only those cards obtained after the expiration of the period in which the remedial notice was posted. Were the factual situa- tion substantially the same as that in the instant case, I would of course, recommend the same course of action as such precedent is controlling. The acts of Respond- ent in the instant case were so sustained and coercive that they require relief beyond that granted in the Colony Knitwear case. Respondent's overt effort to create racial conflict, its threats to kill Local 455 supporters, its threat to close, and so on-all directed to aid Local 1027 for Respondent's own benefit and which destroyed the right of its employees to choose whether or not they desired representation by Local 455-can be effectively reme- died only by barring Local 1027 from appearing on the ballot in any election conducted. Had Local 455 filed ob- jections and established its majority status, a bargaining order would be entered and Local 1027 would have had no further interest. The election held last February should be set aside and a new election ordered with res- toration of the status quo ante whereby the employees will vote to accept or reject Local 455. The Board's re- medial powers are broad enough to direct an election when deemed appropriate. 12 Lastly, I find that, as Respondent has engaged in such egregious unfair labor practices, a broad remedial order is required to insure against a repetition of its efforts to interfere with its employees' Section 7 rights in other forms. 13 Upon the foregoing findings of facts, conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: J Colony Knttwear Corporation, 217 NIRH 245 (1975) m It may be useful r the Board to examine into the efficacy of that approach I have observed, as have more than a few practioilers in this field, that the assisted unions regularly win such elections and are certi- fied Cf Maywor)d Plant of Gred Plastic, a Division of (jrede Ioundrils. Inc., 235 NLRB 363 (1978). and cases cited therein. See also Purolator Products. Inc. (an Nuy Plant. 16) NLRB 80 (1966hh). rocedurallS, it ap- pears necessary to that end to order that he results of the lectlil in Case 2-RC 18201 be set aside. he agrcemenl for consent lection there- in vacated and the petition dismissecd i: Cf. Iickmott Food. Irnc. 242 NlRB 1357 ( 9 7 9 ()RDER14 Respondent F:cctrol, Inc., a Subsidiary of Yonkers Plate Glass Co., Bronx, New York, its officers. agents, successors, and assigns, shall: 1. Cease aid desist from: (a) Interrogating any of its employees as to their sup- port for Shopmen's Local Union No. 455. International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. (b) Threatening to discharge or physically harm any of its employees or to close its plant in order to discourage its employees from supporting Local 455. (c) Instructing its employees not to solicit support for Local 455. (d) Promising benefits to its employees to discourage them from voting for Local 455. (e) Making racial remarks against Local 455 to dis- suade its employees from supporting it. (f) Soliciting its employees to join and to support Fed- eration of Employees Union Local 1027 in order to frus- trate or interfere with their right to choose their own collective-bargaining representative. (g) Threatening to discharge any of its employees to induce them to vote for Local 1027 rather than a labor organization of their own choice. (h) Promising its employees benefits to induce them to support Local 1027. (i) Interfering, restraining, or coercing its employees in any way in the exercise of their right to be represented by a labor organization of their own choice. (j) Unlawfully aiding Local 1027 in any way. 2. Take the following affirmative action: (a) Post at its plant in New York City, New York, copies of the attached notice marked "Appendix." ' Copies of said notice, on forms provided by the Regional Director for Region 2, after being signed by Respond- ent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter. in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other materi- al. (b) Notify the Regional Director for Regional 2, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. (c) Provide the Regional Director for Region 2, upon his requests, with all payroll and related data, including names and addresses of its production and maintenance 14 In the event lno exceptlions re filed as priloided hy Sec 102 46 of the Rules and Regulations of the National Labor Relatios BHard, the findings, conclusions and tile reclommenrded ()rder hereit shall, as pro- vided il Sec. 102.48 of the Rules ad Regulations, he adopted by the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed v, ived for all purposes s In the event that this Order is enforced by a Judgmenlt of a Uniled Slates Curl Iof Appeals, the Aords in the notice reading '"Posed ho ()rder of the National l.abor Relaiillo Board" shall read "Po'sted Pursu- illll to a Judgement f the Ulnited Sllates Crt of' Appeals nrforcing an Order of the National I.alhor Relationls Boarl " FENETROI. INC. 8X0)7 employees, as are needed to conduct the election re- ferred to above. Itl IS IFURHIWR O) RI I) that the allegations in the complaints that Respondent discharged David Alicea and Julio Martinez and suspended and discharged David Greene in violation of Section 8(a)(1) and (3) of the Act are dismissed, as are the allegations that Respondent cre- ated the impression of surveillance of Local 455's activi- ties in violation of Section 8(a)(1). It1. THE CHAI INGfitD HAl I OS I have already found that David Alicea and Julio Mar- tinez were not discharged on January 25, 1979, in viola- tion of Section 8(a)(l) and (3) of the Act. As they were not employees of Respondent as of the date of the elec- tion, the challenges to their ballots should be sustained. There is a third challenged ballot, the one cast by Theodore Koutsourakis. Local 455 contends he is not eli- gible on the ground that he is a supervisor as defined in the Act. The Employer asserts that he is a leadman who possesses no supervisory authority. Koutsourakis was hired by Respondent's president in September 1978. During the first several months of his employ, he functioned principally as a carpenter, install- ing floors, walls and tiles, and building desks. Machinery to fabricate the high performance windows was set up by another individual. That machinery was located on the second floor of Respondent's premises. The individu- al who installed that machinery showed Koutsourakis in December 1978 how to operate it. By mid-January there were about 15 employees in the window fabrication divi- sion. The record dicloses that Koutsourakis got his work orders from Plant Manager Benigno, made up samples using cutting, drilling, and assembly machinery. He then trained and instructed those 15 employees in following the same techniques in producing high performance win- dows specified in the respective orders. He examined their work, required them to redo it if needed and cor- rected other errors himself. About 75 percent of his working time was spent in working on the machinery, making samples, demonstrating techniques, and correct- ing mistakes. Sometime in mid-December, according to Jay Torres, who was Local 1027's observer at the election, he began work for Respondent and was assigned by Respondent's president to work with Koutsourakis. He testified that he took all his work assignments from Koutsourakis and that there were many times when Koutsourakis told him to stop what he was doing and to do something else. He has had occasions to leave work early and, on those, he obtained permission only from Koutsourakis. By January there were about 15 employees in the window fabrica- tion division on the second floor. Another employee in that division, Percival Higgins, testified that he took his orders from Koutsourakis. Koutsourakis granted his re- quest to change his working hours on at least one occa- sion so that he started at 9 a.m. instead of 8:30 a.m. Hig- gins said that Koutsourakis told him he had authority to transfer employees out of his department. Another em- ployee, Juan Feliciano, testified that Koutsourakis grant- ed his request to leave work early on one occasion. Feli- ciano also said that he once observed Koutsourakis send Ernest Washington to work on the first floor because he was dissatisfied with his work. Washington corroborated this. Feliciano and employee Hector Delgado testified also that Plant Manager Benigno had said that Koutsour- akis was the foreman on the second floor. Koutsourakis himself testified that there were instances where the plant manager told him that three or four employees from his department were needed to unload trucks and employees in his department testified that Koutsourakis selected them for that work. Koutsourakis testified also that there were times when he signaled to the employees that coffeebreaks were ended. Plant Manager Benigno testified that he gave work orders to Koutsourakis and that, as Koutsourakis knew the window fabrication operation better than anyone other than Respondent's president, it was Koutsourakis' function to see to it that the windows were produced, that Koutsourakis had the responsibility to get the work out, and that the urgency of the jobs did not permit him, plant manager Benigno, the luxury of asking Koutsoura- kis how long a job would take. There were occasions when Koutsourakis reported to the plant manager that a job could not be completed unless Saturday overtime was authorized. Employees in Koutsourakis' section testi- fied that he selected them for overtime work. The employees in the unit punched the timeclock whereas Koutsourakis, prior to the election, did not. They earned $3 an hour; Koutsourakis' take-home pay was $392 a week. It is evident from the foregoing that Koutsourakis bore the responsibility for the timely processing by the 15 em- ployees in the window fabrication division of the work orders given him by Benigno and that he carried this out principally on his own as Benigno did not have the luxury, as he put it, to follow up the processing of these orders. The uncontroverted evidence is that Koutsoura- kis regularly made the work assignments in his division, that he changed job assignments as needed, and that Ben- igno told the employees there that Koutsourakis was their foreman. Secondary factors indicating his supervi- sory status are the vast difference of the amount of his weekly earnings compared to that of the unskilled em- ployees in his department ($392 net a week compared to about $120 gross for the unskilled workers), the fact that were he not a supervisor the employees on the second floor would be without one for most of the workday, and the fact that, as of the election, he did not punch a timecard while the others did. Based upon the foregoing and the record as a whole, I find that Koutsourakis had the authority, in the interest of Respondent, to responsibly direct the employees in the window division and in the exercise of that authority used independent judgment. 16 As of the date of the elec- tion he possessed one of the indicia of supervisory status 1 Murrau Equiprnn Cnpur Inc. 22h NRIB 1(W2 lq7t) See als Ilini 3e l cauhrt'lor .Ic. 197 N RF 303 (1972) (usrn Br.z, d 411.- mrua ( rp . 197 NLRH 37 (19721: and Ridgiv %lo.ttufa rilg (C. li nc. 198 NR S 8 (1972) Rcsplnden' brief ite Pl Chir ('itlpat. Irc. 213 NI Rtt 909 (1974), andi R mu, ( lclnlr (ompuiv. 18 N RH 30) 95 (971) Those a.cs are rdll li dIsllngulhabhle frorln the TlTtant one a, he duiltic oi f the le]irielmn i lltho ca,,le.e Inlljtc1 , uchxIL, the making ,11 rotunnle sark ;saligiiT1tinl% FENETROL, INC. 19)7 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD set out in Section 2(11) of the Act. I thus find that he is a supervisor as defined in the Act. Accordingly, I find that Koutsourakis was not eligible to vote in the election and recommend that the challenge to his ballot be sustained. ORDER Having found that the challenges to the three ballots in question should be sustained. IT IS FURTHER ORDERED that Case 2-RC-18201 shall be, and hereby is, severed and returned to the Regional Director for Region 2 for processing subject to the fur- ther order of the Board as recommended under the Remedy section above.