Fred Stark

National Labor Relations Board - Board Decisions

Sep 6, 1974

213 N.L.R.B. 209 (N.L.R.B. 1974)

FRED STARK
Fred Stark and Jamaica 201 St. Corp., Inc. and Jamai-
ca 202 St. Corp., Inc. and Local 32B, Service Em-
ployees International Union, AFL-CIO. Cases
29-CA-3600 and 29-CA-3601
September 6, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On May 31, 1974, Administrative Law Judge
Charles W. Schneider issued the attached Decision in
this proceeding. Thereafter, Respondents filed excep-
tions and a supporting brief, and the General Counsel
filed an answering 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 briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified,
and hereby orders that Respondents, Fred Stark and
Jamaica 201 St. Corp., Inc. and Jamaica 202 St. Corp.,
Inc., New York, New York, their partners, officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as modified
below:
1. Substitute the following paragraph for para-
graph 2(a):
"(a) Offer Charles Thompson, Roger Evans,
Wayne Huff, Jeffrey Maksymchak, Felipe Ortiz, and
George Peters immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges."
2. Delete paragraph 2(b) and reletter the subse-
quent paragraphs accordingly.
3. Substitute the attached notice for that of the
Administrative Law Judge.
1 The Respondents have 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 respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the
record and find no basis for reversing his findings.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
209
WE WILL NOT discharge, or refuse to reinstate or
rehire employees, or subject them to demeaning
conditions of employment, because they join,
support, assist, or affiliate with Local 32B, Ser-
vice Employees International Union, AFL-CIO,
or any other union, or because they sign cards
for, or otherwise designate or select, such Union
or any other union as their bargaining represen-
tative.
WE WILL NOT question employees about their
union activity, affiliations, assistance, or support,
or about their selection of the Union or any other
union.
WE WILL NOT threaten employees with dis-
charge or other reprisals in employment if they
assist, support, or join a union, or select a union
as their bargaining representative.
WE WILL offer Charles Thompson, Roger Ev-
ans, Wayne Huff, Jeffrey Maksymchak, Felipe
Ortiz, and George Peters immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and we will pay them for any
losses sustained as a result of their discharges,
with 6-percent interest.
FRED STARK AND JAMAICA
201 ST. CORP., INC. AND JA-
MAICA 202 ST. CORP., INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 16 Court Street, Fourth Floor, Brook-
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lyn, New York 11241, 'Telephone 212-596-3535.
DECISION
STATEMENT OF THE CASE
CHARLES W. SCHNEIDER, Administrative Law Judge: On
October 18, 1973, Local 32B, Service Employees Interna-
tional Union, AFL-CIO, the Union, filed unfair labor prac-
tice charges against Fred Stark, Jamaica 201 St. Corp., Inc.
and Jamaica 202 St. Corp., Inc., herein collectively referred
to as the Respondent, alleging commission by the Respon-
dent of unfair labor practices in violation of the National
Labor Relations Act (29 U.S.C. § 151 et seq.). On December
28, 1973, the Regional Director issued an order consolidat-
ing the cases , accompanied by a complaint and notice of
hearing. Service of the charges, the order, and the complaint
and notice of hearing was duly made on the Respondent
and the Union.
The complaint alleged in sum that the Respondent, in
violation of Section 8(a)(1) and (3) of the Act, discharged
a number of employees, identified hereafter, interrogated
employees concerning union matters, and warned employ-
ees against affiliating with or supporting the Union. The
Respondent duly filed its answer, thereafter amended, de-
nying the commission of unfair labor practices.
Pursuant to notice a hearing was held in Brooklyn, New
York, on March 12, 13, and 19, 1974. The General Counsel
and the Respondent appeared and were represented by
counsel . All parties were afforded full opportunity to be
heard, to introduce material evidence, to present oral argu-
ment, and to file briefs. Briefs were filed by the General
Counsel and the Respondent on April 29, 1974, and have
been considered.
Upon consideration of the entire record and the briefs,
and from my observation of the witnesses, I make the fol-
lowing:
York, where they are, and have been at all times material
herein, engaged in the rental of residential real estate.
Stark, Jamaica 201, and Jamaica 202, herein collectively
referred to as the Respondent, are, and at all times material
herein have been, affiliated businesses with common offi-
cers, ownership, directors, and operators, and constitute a
single integrated business enterprise; the said directors and
operators formulate and administer a common labor policy
for the aforenamed concerns, affecting the employees of
said concerns.
During the past year, which period is representative of its
annual operations generally, the Respondent in the course
and conduct of its business purchased, and caused to be
transported and delivered to its places of business, oil and
other goods and materials valued in excess of $50,000 of
which goods and materials valued in excess of $50,000 were
transported and delivered to it, and received from, other
enterprises located in the State of New York, each of which
other enterprises had received the said goods and materials
in interstate commerce directly from states of the United
States other than the State in which it is located.
During the same period, the Respondent received rental
revenue from residential properties in excess of $500,000
and rental revenue from commercial properties in excess of
$100,000. Said rental revenue from commercial properties
included rent of at least $25,000 from enterprises which
annually purchase goods valued in excess of $50,000 from
sources located outside the State of New York.
Respondent is and has been at all times material herein
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Local 32B, Service Employees International Union,
AFL-CIO, is a labor organization within the meaning of
Section 2 (5) of the Act.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Stark is a copartnership composed of Fred Stark, Harold
Stark, and Rita Stark, copartners, doing business under the
trade name and style of Fred Stark.
Jamaica 201 is and has been at all times material herein
a corporation duly organized under, and existing by virtue
of, the laws of the State of New York.
Jamaica 202 is and has been at all times material herein
a corporation duly organized under, and existing by virtue
of, the laws of the State of New York.
At all times material herein Stark has maintained its prin-
cipal office and place of business at 198-10 Jamaica Avenue
in the city and State of New York where it is, and has been
at all times material herein, engaged in the ownership and
rental of commercial and residential buildings and proper-
ties.
At all times material herein Jamaica 201 and Jamaica 202
have maintained their principal offices and places of busi-
ness at 198-10 Jamaica Avenue, in the city and State of New
III. THE UNFAIR LABOR PRACTICES
A. Summary
On April 30, 1973, seven of the Respondent's employees
signed authorization cards for the Union. On May 10, 1973,
the Respondent received a letter from the Union requesting
recognition. Within a week thereafter the employment of six
of the seven employees was terminated. The General Coun-
sel contends that the terminations were for union activity;
the Respondent contends that two of the terminations were
voluntary quittings and that the remainder were for cause.
B. The Designations of the Union
On April 17, 1973, the Respondent signed a contract with
the Union covering one of the Respondent's properties not
involved here. Upon learning of this, George Peters, a fore-
man for the Respondent, contacted the Union and arranged
for an organizational meeting at his apartment.
The meeting was held on April 30, 1973. It was attended
by Peters and by employees Charles Thompson, Jeffrey
Maksymchak, Roger Evans, Wayne Huff, Kenroy Bishop,
FRED STARK
and Felipe Ortiz. The Union was represented by Tony Poc-
cio, an organizer. Each of the seven employees signed an
authorization card at the meeting. The Union thereafter
requested recognition by letter dated May 8, which the Re-
spondent received on May 10, 1973.
On the following day, May 11, 1973, the employment of
Thompson, Evans, Huff, and Maksymchak was terminated.
At some unidentified date after receiving the Union's
letter, Fred Stark, one of the Respondents, telephoned Ru-
dolph Larmond, an official of the Union, and asked what
it was "all about." Advised by Larmond that the Union
wished to represent the employees and would like to negoti-
ate, Stark replied that there must be "some mistake" and
asked who the people were. Larmond gave Stark two or
three names, to which Stark replied: "Oh, I fired them.
They're all drunk, and I fired them."
Larmond's testimony, which is not denied, is credited.'
On May 16 Felipe Ortiz was terminated. And on the
following day, May 17, George Peters was discharged.
C. Contentions
The General Counsel contends that the six employees
were discharged for their union activity. The Respondent
contends that Thompson quit, that Evans and Huff were
discharged for drunkenness, and Maksymchak for refusing
to work. The Respondent asserts that Ortiz was not dis-
charged but quit. With respect to Peters, the Respondent's
contention is twofold: That Peters is a supervisor and not
an employee under the Act, and that he was discharged for
falsifying the reason he took a day off.
In essential particulars resolution of the issues is substan-
tially dependent upon credibility determinations.
D. The Terminations of Thompson, Evans, Huff
and Maksymchak
On May 11, 1973, Harold Stark , an official of the Compa-
ny and the son of Respondent Fred Stark , directed Charles
Thompson to take a crew consisting of Evans and Huff to
a building in the process of renovation, remove debris from
the structure , and haul it away in the Respondent 's truck.2
During the morning the employees completed the work of
cleaning up the first floor of the building and began work
in the basement . That, however , was a more difficult job
involving, among other things, the hauling of wet debris,
including ashes, in 5- or 10-gallon pails , lugging them a
considerable distance across the basement , up the stairs,
and out to the truck . In the past in similar situations 5 or
6 men had been assigned to form a chain to perform the
work . During or shortly after the lunch hour , Thompson
suggested that more men were needed for the job. The
others agreed . The three thereupon drove to the office of the
'The Regional Director subsequently dismissed a refusal to bargain
charge filed by the Union , on the ground that the Union did not represent
a majority of the employees.
2 Except as otherwise indicated the findings herein are based on uncontra-
dicted and credited testimony . Where there is significant conflict on material
facts credibility resolutions are made. Collateral occurrences which were the
subject of testimony , but do not directly bear on the issues , have been omitted
from the recital of facts.
211
Respondent some short distance away for the purpose of
asking Harold Stark to provide more help.
They arrived at the office about I or shortly thereafter.
When they arrived Thompson went inside, for the purpose,
according to the testimony of the employees, to find Harold
Stark. Stark was not in the office. The 3 employees then sat
in the truck to await his arrival. While there they were joined
by Maksymchak, a part-time student employee, who was
just reporting for work. Maksymchak was told by Stark's
secretary to await the arrival of Helga Schenck, the
Respondent's office manager. Miss Schenck was at that
time at lunch and had left word that when Maksymchak
arrived he should wait for her because she had an errand for
him to do.
Thompson, Evans and Huff joined Maksymchak in the
latter's station wagon to await the arrival of Harold Stark.
While they were waiting, Maksymchak said that he was not
feeling well , and did not think that he would work that day.
Under the arrangement with the Respondent,
Maksymchak's schedule was flexible, and he was not re-
quired to work regularly.3
Sometime after 1 o'clock Helga Schenck returned from
lunch. According to her testimony she went out to the car,
and asked the 4 employees whether that was all they had to
do, and Thompson replied that he was not going to work
any more. She then went back into the office, apparently
without speaking to Maksymchak, though that had been her
primary purpose in coming out.
A short while later Harold Stark arrived and approached
the car. According to the testimony of the 4 employees,
Stark asked Maksymchak whether he was going to work
that day, Maksymchak responding in the negative, stating
that he did not feel like working. Harold Stark looked at the
others and said that they were discharged for being drunk.
Stark's version of the incident is as follows: All but Mak-
symchak were drunk. He asked the four men what they were
doing there and why they hadn't finished the job. Thomp-
son replied that they were not doing the work, Huff that
they were done with it. Being unable to get anything more
coherent from Thompson, Evans, and Huff because of their
drunken condition, Stark told those three that they were
drunk, had not done the work, and were fired. As to Mak-
symchak, Stark asked him whether he was going to work or
stay there. Receiving no response, Stark said that if Mak-
symchak did not want to come to work, he was fired too.
He then walked away.
All four employees denied that they were drunk. All testi-
fied that they had not had anything to drink that day. Ad-
mittedly they did not deny Harold Stark's accusation: their
testimony as to that is that they had no opportunity, that
7 The testimony of Stark 's secretary , Karen Gsell , is that when Thompson
came into the office Maksymchak was already there waiting for Miss
Schenck, that Thompson said that he had quit, and told Maksymchak that
he wished to see him outside , and that the two then left.
Thompson denied saying that he had quit. The testimony of the employees,
including Maksymchak , is that when Maksymchak arrived at the office,
Thompson , Evans, and Huff were sitting in the truck , waiting for Harold
Stark to arrive.
In view of the whole pattern of events , and the subsequent occurrences,
I conclude that Ms. Gsell misunderstood Thompson . It is not apparent, and
no reason is suggested, why he should have quit, or waited with the others
if he had. Cf. In. 5.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after discharging them, Stark immediately walked away.
Credibility resolutions as to this incident are made here-
after.
E. Maksymchak's Requests for Reinstatement
Maksymchak testified that on the day after the discharge
he returned to the Respondent and asked Harold Stark for
his job back. According to Maksymchak, Harold Stark told
him to wait a few weeks "till things cool off." Over the next
several months Maksymchak returned 4 or 5 times without
success. On the first occasion Harold Stark asked Mak-
symchak why he joined the Union, and characterized
Maksymchak's action "like stabbing me in the back." On a
later occasion Stark told Maksymchak that he could have
his job back if he got out of the Union. Maksymchak said
that he would not do that, and thereafter ceased coming
back.
Maksymchak's testimony concerning his requests for re-
instatement is not denied. I do not consider Harold Stark's
general testimony to the effect that he did not "discuss" the
Union with employees to constitute a denial of
Maksymchak's testimony as to his reinstatement requests.
Credibility findings as to the incidents are made hereafter.
F. Evans' Request for Reinstatement
On the Monday following the discharges, when Roger
Evans returned to the Respondent to get his pay, he asked
Harold Stark whether Stark could not give him and Thomp-
son another chance. Harold Stark's testimony is that he said
no-"that is the last chance you had."
G. The May 14 Conversation Between George Peters
and Fred Stark
On Monday, May 14, 1973, Fred Stark and Harold Stark
came to ajobsite at 145th St. and Jamaica Avenue. Accord-
ing to the testimony of George Peters, while Harold Stark
was inside the building, Fred Stark called Peters aside out-
side the building, and told Peters that he had just fired four
of Peters' men because they had joined the Union, naming
them. Fred Stark then said to Peters, "I'm surprised at you,
Mr. Peters, you're supposed to be my foreman, you know,
you're not supposed to be joining a union . . . you stabbed
me in the back." Fred Stark went on to say, however, that
he would "forget all about it," that Peters could go back to
work "and just stay away from the union." Peters' testimony
is that he said that he would think about it.
Harold Stark admitted being at the location with his fa-
ther on the day in question, but denied that such a conversa-
tion, or any conversation between his father and Peters,
took place, terming it "impossible," because he was with his
father during the entire time they were at the premises.
Peters' testimony is that it was "impossible" for Harold
Stark to have heard the conversation, because Harold was
inside the building at the time. Fred Stark did not testify,
though present in the hearing room throughout the hearing.
The conflict is resolved at a later point.
H. The Termination of Ortiz
Felipe Ortiz was a porter in one of the Respondent's
apartment buildings, in which George Peters and his wife
Marie lived. Ortiz' job was to keep the public portions of the
interior of the building clean, and also the exterior, includ-
ing the grounds. Ortiz was terminated on May 16, 1973,
according to the General Counsel, because he refused to
pick up dog manure on the grounds with his hands as or-
dered by Harold Stark. According to the Respondent, Ortiz
quit rather than clean up the outside of the building.
Ortiz is primarily literate in the Spanish language. My
estimate , from observation of him as a witness, is that he has
small command of the English language . In addition he is
affected with a severe physical speech handicap. I found
him of such minimal intelligibility in the English language
as to require the services of a Spanish interpreter. Because
of the speech handicap, however, the interpreter also had
difficulty with substantial portions of Ortiz' testimony, a
material part of which he found untranslatable.
Ortiz' testimony to the effect that Harold Stark ordered
him to pick the dogs' droppings with his hands was corrobo-
rated by Mrs. Marie Peters and by employee Kenroy Bish-
op. Both testified, consistently with Ortiz, that Mrs. Peters
and Ortiz protested that Ortiz should be allowed to get a
shovel and broom from the basement but that Harold Stark
insisted that Ortiz pick up the droppings with his hands.
When Ortiz refused, Stark told him that if he would not do
it, to go home.
Harold Stark denied that he ordered Ortiz to pick up the
dog droppings with his hands. His testimony is that Ortiz
refused to clean out litter, including dog manure, from sev-
eral bushes on the grounds, claiming that that was not his
job. Harold Stark's testimony was corroborated by Law-
rence Moultrie, an employee.
Credibility resolutions are made hereafter.
I. May 17, 1973
1. The discharge of George Peters
On Tuesday, May 15, 1973, after work, George Peters
told Fred Stark that he would not be in the next day. When
Fred Stark asked him why, Peters replied that he had been
spitting blood and that he was going to the Veteran's Ad-
ministration Hospital .4 According to Peters, Fred Stark told
him to "make sure you stay away from the Union."
Peters' statement to Fred Stark was untrue. The real rea-
son he took off on May 16 was to take Charles Thompson,
Roger Evans, Wayne Huff, and Jeffrey Maksymchak to the
Union, where they gave affidavits concerning their dis-
charges. Peters' testimony is that he did not tell Fred Stark
the truth because of the warning he had previously received
from Stark concerning the Union.
On May 16, in the morning, Peters took the discharged
quartet to the union headquarters in his car. They were
apparently observed by someone who reported the matter
Peters' undisputed testimony is that he had this condition as a conse-
quence of an on-the-job injury incurred in the employment of the Respon-
dent about December 1971.
FRED STARK
to Fred Stark.
On the following morning when Peters reported at the
office he was discharged by Fred Stark. According to Pe-
ters, Fred Stark said to him: "I see you went to the Union
again yesterday. I told you to stay from the Union .. .
evidentally [sic], Mr. 'Peters, you don't learn . . . you're
fired. Give me all your keys."
Fred Stark did not testify as to the discharge of Peters.
Harold Stark testified that he was in the office at the time.
He denied Peters' version of the incident. Harold Stark's
testimony on direct examination as to the incident is as
follows:
Q. What happened when Peters came in?
A. Well, he walked in and then my father told him,
he says, "You are a liar and I don't trust you. You
weren 't at the VA Hospital when you said you were."
He says, "You are fired" and let him go. That is when
he walked in.
Q. Did Peters say anything?
A. He didn't say anything. He just walked around
and walked out.
Harold Stark also denied Peters ' testimony that Fred
Stark made the statements about the Union in the discharge
interview , to which Peters had testified.
Credibility findings are made hereafter.
2. Harold Stark's statements to Kenroy Bishop
On the same morning, shortly after Peters' discharge,
according to the testimony of Kenroy Bishop, Harold Stark
spoke to him about the Union.
Bishop's testimony is that Harold Stark took him into the
back of the office and told him that he must "give up on the
union, because it won't come here." According to Bishop,
Stark further said that "he had already fired everybody who
had signed for the union, except me." Bishop testified that
Harold Stark also said that he had just fired Peters, but did
not say why, or indicate that it was because of the Union.
Either on that occasion, or later in the day, according to
Bishop, Harold Stark told him that "the Union is no good
... they're going to mess this place up."
Harold Stark testified that he did not "discuss" the Union
with employees. However, he did not specifically deny or
refer to these conversations in his testimony. Credibility
resolutions as to them are made hereafter.
J. Credibility Resolutions and Conclusions
As is apparent from the foregoing recital , the case re-
volves substantially around credibility resolutions. If the
substance of the General Counsel 's testimony is accepted
the complaint is substantiated . If the substance of the testi-
mony of the Respondent is accepted the complaint falls.-It
seems apparent that , in a number of instances , there must
be deliberate falsification of testimony by one side or the
other: It is not possible that there could be honest misunder-
standing with respect to some of the incidents.
213
Both the General Counsel and the Respondent insist
upon the credibility of their witnesses and the incredibility
of the opposing testimony. The Respondent's brief is devot-
ed almost wholly to an attack upon the credibility of the
General Counsel's witnesses. To this end counsel for the
Respondent has painstakingly analyzed all the evidence of
the witnesses and has pointed out various inconsistencies in
the testimony of the witnesses for the General Counsel.
These exist, but so do inconsistencies in the testimony of the
Respondent' s witnesses . In arriving at the findings herein I
have taken into consideration the fact that the Respondent
had previously entered into a collective-bargaining contract
with the Union covering another segment of the
Respondent's operations.
In determining who is to be believed, certain background
and objective factors must be considered. Thus, we begin
with the fact that on the day after the Respondent received
the letter from the Union advising the Respondent of the
Union's claim to recognition, four of the seven employees
who had designated the Union were terminated. And within
6 days thereafter two more were terminated. Coincidence,
of course, is not a substitute for proof, but neither may it
be ignored in determining the existence of proof.
Also, some of the General Counsel's evidence and testi-
mony indicative of opposition by the Respondent to the
Union is not specifically denied. As has been seen , Harold
Stark told Kenroy Bishop that he had fired everybody who
had signed for the Union except Bishop, and that the Union
was no good and would mess the place up. The Respondent
attacks Bishop's testimony as a deliberate lie. However, it
has been noted that, although Harold Stark testified in gen-
eral terms that he did not discuss the Union with employees,
he did not specifically deny Bishop's testimony as to these
statements . I do not find persuasive the supposition that the
only remaining member of the group which had signed
union cards who had not been discharged, and who at the
time of his testimony was still in the Respondent's employ,
would deliberately fabricate testimony against the Respon-
dent. In addition it is to be noted that Bishop's testimony
does not attribute to Harold Stark a declaration that Stark
had fired the employees for union activity. I think it a fair
inference that if Bishop were deliberately lying he would
have added that admission by Stark. These factors appear
to me confirmative of my conclusion, based on observation
of Bishop's demeanor, that Bishop is a credible witness.
It will also be recalled that Maksymchak testified that
after repeated efforts to have Harold Stark rehire him, Stark
finally told him that he could have his job back if he got out
of the Union. This testimony is also not specifically denied.
In the light of that fact, and the further fact that the Respon-
dent offered' no explanation for its failure to rehire Mak-
symchak, and from my observation of the witnesses, I credit
Maksymchak's testimony in that regard.
In addition, in a number of important instances Harold
Stark's testimony is not corroborated, though it was within
the Respondent's power to do so. Thus, Fred Stark was not
called as a witness, though present in the hearing room
throughout the hearing. No explanation is advanced for this
omission . In the incidents involving George Peters and Fred
Stark, all disputed, the Respondent relies solely on the testi-
mony of Harold Stark.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent, citing N.L.R.B. v. Century Broadcasting
Corporation, 419 F.2d 771, 776-777 (C.A. 8, 1969), appears
to contend that no adverse inference can be drawn from its
failure to call Fred Stark. It is true, as the court held in the
Century Broadcasting case, that the failure of a respondent
to present evidence has no effect on the burden of proof,
and no inferences of wrongdoing can be drawn from the
respondent's failure to disclaim the Board's allegations.
However, where the General Counsel presents evidence
which, if accepted, establishes a material fact, the failure of
a respondent to produce evidence, including testimony, in
its possession or control with respect to the existence or
nonexistence of the fact, is a relevant consideration in de-
termining whether to find the fact. See Goodyear Tire &
Rubber Company, 190 NLRB 84, 86, fn. 3; N. L. R. B. v. Mon-
umental Life Insurance Company, 162 F.2d 340, 343 (C.A. 6,
1947). The Century Broadcasting case is not contrary author-
ity in that regard. The issue there was simply whether, in the
absence of any evidence by the General Counsel to establish
the existence of company knowledge of union activities, the
Board could properly find that the respondent's failure to
introduce evidence denying such knowledge warranted an
inference that the knowledge existed. No such situation is
presented here. In each instance where significance has
been found in the Respondent's failure to present evidence
in its possession respecting a material issue, there is evi-
dence in the record which, if accepted, establishes the exis-
tence of the fact found.
We turn then to the particular incidents which are in
dispute.
K. The May 11 Terminations
Here, too, the dispositive issue is which is the correct
testimony, or which more closely approximates the facts:
the General Counsel's or the Respondent's? The
Respondent's position is that the General Counsel's wit-
nesses lied.
We begin with the contentions: The General Counsel's is
that Thompson, Evans, and Huff were awaiting the arrival
of Harold Stark in order to get help on the job, that Mak-
symchak, because he was not feeling well, had tentatively
decided not to work that day, and that none of the employ-
ees had had anything to drink. The Respondent's conten-
tion is that Thompson quit, that Evans and Huff were
discharged for being drunk, and Maksymchak was dis-
charged for refusing to work.5
The Respondent's contention to the effect that Thomp-
son quit is apparently based on the testimony of Karen
Gsell, which was referred to in footnote 3, supra. As indi-
cated there, I have concluded from all the circumstances
that she misunderstood Thompson. I therefore find that
5 In oral argument the Respondent suggested that the quartet were refusing
to work in order to compel the Respondent to recognize the Union. If that
were so, the employees ' action would have constituted a strike . Under ordi-
nary circumstances , various exceptions aside , a strike for recognition is a
protected concerted activity, and discharges therefore would constitute un-
fair labor practices . However, there is no evidence here suggesting such a
strike . The Respondent does not contend that it discharged any of the em-
ployees for that reason . There is therefore no need to consider that question.
Thompson was discharged .6
Harold Stark's testimony to the effect that Thompson,
Evans, and Huff were drunk, and that of the employees to
the effect that they had had nothing to drink that day, thus
collide head-on-the uncorroborated testimony of Stark
against the mutually supportive testimony of the four em-
ployees.
If there was fabrication, it would seem more probable
that it was the one, rather than the four, who was lying. It
is, of course, possible that the testimony of four can be
contrived, and that of one truthful; however the likelihood
of perjury or mistake becomes more remote in direct, or
even geometrical, proportion to the number of persons who
testify to a fact.
Furthermore it is of significance that during the same
period of time , two others of the Respondent' s witnesses,
Karen Gsell and Helga Schenck, had occasion to talk to or
to observe one or all of the four. Neither testified that any
of them were drunk or gave evidence of drinking. Indeed
Helga Schenck specifically disclaimed any such assertion.
In these circumstances it appears to me that the objective
factors are supportive of my conclusion based on observa-
tion of the witnesses, that the testimony of the four employ-
ees is to be accepted and that of Harold Stark rejected.
In that connection I have not overlooked the fact that
Roger Evans had on an occasion in the past been sent home
for drinking and given his job back on condition that he no
longer drink on the job. Nor the Respondent's undenied
evidence that Huff in the past had been drinking on the job.
There is no evidence, however, that any such, or other,
complaint had ever been made concerning Thompson. I
have also taken into consideration the fact that Harold
Stark had spoken to employees generally, though admitted-
ly to no one in particular, warning them about drinking on
the job. I think it not without significance in this respect that
when Roger Evans applied for reinstatement on behalf of
himself and Thompson he was told by Harold Stark that
they had had their "last chance." Clearly Thompson had
had no last chance. Nor had Maksymchak. For so far as the
contentions and the evidence reveals, Maksymchak had
never. theretofore given the Respondent any cause for dis-
satisfaction.
In other instances, related hereafter, I find myself unable
to accept the testimony of Harold Stark where denied by
other witnesses. On the basis of my judgment as to the
credibility of the witnesses, and in the light of the objective
circumstances, I am unable to accept Harold Stark's testi-
mony as to the May 11 terminations. I accept as substantial-
ly correct the testimony of the General Counsel's witnesses
in that respect. To be sure, that testimony sometimes varies
as to detail, but such fact, rather than detracting from credi-
bility, appears to refute the suggestion that the stories were
contrived, or rehearsed.
L. The Discharge of Ortiz
The incident involving the termination of Ortiz is also a
credibility problem . The simple factual issue is whether, as
Ortiz , Mrs. Peters , and Kenroy Bishop testified , Harold
6 The Respondent ' s answer, which originally admitted the discharge of
Thompson , was amended at the hearing to allege that he quit.
FPD STARK
Stark ordered Ortiz to pick up the dog droppings with,his M. The May
hands rather than permitting him to get a broom and shovel,
or whether, as Harold Stark and Lawrence Moultrie testi-
fied, Ortiz refused to clean out the bushes, claiming that it
was not his job.
In view of Ortiz' limited English, and his speech handi-
cap, it might have been possible, but for two facts, to con-
clude that the whole business involved a simple
misunderstanding-on Ortiz' part as to what he understood
Harold Stark to be directing him to do, and on Harold
Stark's part as to what he understood Ortiz to be refusing
to do. However, I deem this not possible for two reasons,
(1) the conflicting testimony of Stark, Moultrie, Mrs. Peters,
and Bishop, all literate in English, as to what Stark directed,
and (2) the unexplained failure of the Respondent to offer
Ortiz his job back. In addition to my conclusion based upon
observation of the witnesses, I deem the latter circumstance
of significance in determining the facts of the incident.
If the Respondent's testimony as to the incident is true,
the Respondent may have been aware within 5 weeks there-
after that Ortiz had misunderstood what Harold Stark had
been directing him to do. For on June 25, 1973, a hearing
was held before an unemployment insurance referee of the
State of New York on Ortiz' claim for unemployment com-
pensation. The referee found that Ortiz had refused to clean
up the front of the building, though provided with equip-
ment, such as brooms, pails, and shovels. He was therefore
denied compensation on the ground that he had refused to
carry out the legitimate orders of his employer. Ortiz' testi-
mony before the referee was presumably no different than
that before me-if it was intelligible-but the referee ac-
cepted the testimony of the Respondent 7
In any event, at the instant hearing the Respondent was
unquestionably made aware of Ortiz' asserted under-
standing of Harold Stark's order. The Respondent was thus
in a position to clarify the entire episode and perhaps make
the issue completely academic by simply offering Ortiz his
job back on condition that he clean up the bushes using a
broom and shovel. This the Respondent, without explana-
tion, declined to do. I consider that circumstance to be
inconsistent with the Respondent's version of the event .8
Upon the basis of my observation of the witnesses to the
incident who testified before me, I accept and credit the
testimony of Kenroy Bishop, Mrs. Peters, and Ortiz as to the
circumstances of Ortiz' termination, and reject that of Ha-
rold Stark and Moultrie. I deem that conclusion to be rein-
forced by the objective circumstances?
7 Apparently Ortiz testified in English at the unemployment insurance
hearing . In view of my experience with Ortiz , I am at a loss to comprehend
how he could have been understood in English . Portions of the transcript of
that hearing, read into the instant record, are of no significant help on the
issues.
8 At the hearing the Respondent sought to question Ortiz as to whether he
wished his job back. Upon objection by the General Counsel I ruled the issue
irrelevant unless the Respondent was prepared to offer Ortiz his job. The
Respondent 's reply was that it was not prepared to make such an offer.
v In attacking the credibility of Ortiz the Respondent states that Ortii
demeanor on the witness stand discloses that when given an order to work
he flies off the handle and becomes angry. This is based on an incident which
occurred during the hearing . As has been related, communication with Ortiz
was difficult . At one point during the hearing , when the interpreter stated
that he was unable to comprehend the answer of Ortiz , Ortiz stood up,
215
14, 1974, Conversation Between Fred Stark
and George Peters
The facts as to this incident have been given above. Ha-
rold Stark denies that his father made the statements attri-
buted to him by Peters, testifying that he was there the entire
time. Peters' testimony is that Fred Stark called him aside
and spoke to him alone. Fred Stark did not testify. I have
previously declined to accept Harold Stark's testimony in
connection with the May 11 and the Ortiz discharges. Simi-
larly I am unable to credit his testimony in this instance,
particularly in the absence of testimony by Fred Stark. In
addition, since Harold Stark's evidence in this regard was
mainly negative (that is, a denial that anything occurred),
I find it difficult to accept the essential premise that he
would remember being on the job site at 145th St. and
Jamaica Avenue on May 14, 1973, between 12 and 1 o'clock
in the company of his father. Secondly, assuming that he did
recall being there on that date and time , it seems even more
providential that he would have been able to remember 10
months later that it was "impossible" for his father to have
spoken to Peters on that occasion outside Harold Stark's
hearing. Indeed, Harold Stark testified that his father did
not say anything to Peters in his presence. Since Peters was
the Respondent's foreman on the job, it seems implausible
that there would have been no communication between
Fred Stark and Peters. These circumstances thus appear to
confirm my conclusion, based upon observation and de-
meanor, that the testimony of Harold Stark is not to be
credited. I have not overlooked the fact that Peters has had
two convictions for felony, pleaded guilty to a misdemeanor
(assault), served time in prison, and was also found to have
violated his parole. After weighing those circumstances and
considering them in connection with my appraisal of the
witnesses , and the entire congery of facts, I have concluded
that Peters' testimony as to this incident is to be credited.
N. The Discharge of George Peters
Here again, the testimony is solely that of George Peters
against that of Harold Stark, and again we have no testimo-
ny from Fred Stark, who effectuated the discharge. On the
basis of my prior determination as to the respective credibil-
ity of the witnesses, and in the light of the entire facts of
record, I accept George Peters' testimony in this instance
also, and reject that of Harold Stark.
0. The Reasons for the Terminations
It has been found that the reasons ascribed by the Re-
banged on the witness stand in an apparently angry manner, spoke volubly
(apparently in Spanish ), made a gesture , and then sat down . The interpreter
was able to translate only a portion of Ortiz' statements:
THE INTERPRETER: Just, I go home, and I think Spanish, English, Spanish,
English. That's all I could get. Interpreter, Spanish. I understand-he's
saying the interpreter understands a lot of Spanish.
In my judgment this incident merely reflected the witness ' frustration with
his inability to communicate.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent for the terminations of the employees are not
substantiated by the evidence, and in some instances con-
flict. Thompson, Evans, and Huff were not drunk or drink-
ing. Maksymchak did not refuse to work. Ortiz did not
refuse to clean up the dog droppings with a broom and
shovel. Though originally admitting that Thompson was
discharged, the Respondent now contends that he quit. And
while it now asserts that Peters was discharged for lying, it
gave the New York State unemployment compensation au-
thorities a completely different explanation when Peters ap-
plied for unemployment compensation. There the
Respondent stated that Peters had been discharged for mis-
appropriation of a refrigerator and "misconduct," allega-
tions which those authorities found unsustained.
While Evans and Huff had been previously warned about
drinking on the job, and Evans given a "last chance," no
such chance was given Thompson, who had never before
been involved in any drinking incident. And though there
is no evidence that Maksymchak had ever before given the
Respondent cause for dissatisfaction, he was refused rein-
statement though repeatedly requesting it. The Respondent,
without explanation, declined to offer Ortiz his job back,
even though it is apparent, if the Respondent's account of
his termination were correct, that there could have been a
misunderstanding, which, if the Respondent were acting in
good faith, it should have been prepared to, and which it
would have been in its interest to, dispel.
Since the reasons advanced by the Respondent for the
discharges are thus untrue, what then were the real reasons?
Upon the evidence, the only reasonable conclusion left to
be drawn is that the discharges were because of the employ-
ees' union activity. It has been seen that within 7 days after
the Respondent learned of the Union's claim all but one of
the employees who signed union cards were discharged.
Apart from inference, there is specific evidence indicative of
antiunion motivation. Thus we have Fred Stark's admission
to Peters in the May 14 conversation that he had just fired
four of Peters' men because they had joined the Union, and
his statement to Peters in discharging him that Peters had
been told to stay away from the Union but apparently could
not "learn." Maksymchak was finally told by Harold Stark
that he could have his job back if he got out of the Union.
Harold Stark told Kenroy Bishop that the Union was no
good and would mess the place up, that all the union men
except Bishop had been discharged, and that Bishop should
get out of the Union. In these circumstances it must be
concluded that the employees were discharged because of
their union activity.
The Respondent contends that it had no knowledge of the
union activity, Harold Stark testifying, for example, that he
was not advised by his father of the receipt of the Union's
letter of May 8, until about May 13 or 14. I find the
Respondent's contention incredible. There is direct evi-
dence of the Respondent's knowledge in the evidence recit-
ed above. Moreover, I deem it implausible that Fred Stark
would not have informed Harold Stark immediately of his
receipt of the union letter. It seems evident that the Respon-
dent had sources of information about employee move-
ments. Thus, apart from the direct evidence recited
rold Stark's account, that Peters did not go to the Veterans
Administration on May 16. How he knew that is not ex-
plained. There is no evidence that Fred Stark asked Peters
for an explanation. It thus seems a fair inference, as Peters
testified, that Fred Stark knew not only that Peters had not
gone to the Veterans Administration, but that he had gone
to the Union instead.
P. Whether George Peters was a Supervisor
The Respondent contends that George Peters was a su-
pervisor. The General Counsel contends the contrary. If
Peters was a supervisor, his discharge would not constitute
a violation of Section 8(a)(3).
Peters' job title was foreman. His job appears to be prop-
erty maintenance . He was given his assignments by Fred or
Harold Stark each day, and assigned a crew of two or more
men, whom Peters would direct. He was not required to sign
in mornings, though other employees were. He worked
along with the crew. There is no evidence as to his pay.10 He
was also assigned an apartment in which to live, rent and
utilities free. Since Peters' discharge the Respondent has not
hired or designated a new foreman to replace him. Accord-
ing to Harold Stark, Harold now spends more time on the
job, and less in the office, than he did previously.
Peters' employment status with the Respondent being
established, the burden is on the Respondent to show super-
visory status. Local 560, International Brotherhood of Team-
sters (The Pennsylvania Railroad Company), 127 NLRB 1327,
1330; Local No. 636, Plumbers (The Detroit Edison Company
and Westinghouse Electric Corporation), 123 NLRB 225, 230-
231. The mere possession of the title "foreman" does not
establish supervisory authority. Local 636, supra. And that
one is "in charge" is also not sufficient. Local 560, supra.
The Respondent's evidence as to Peters' supervisory sta-
tus consists of testimony by Harold Stark and by employee
Lawrence Moultrie. Moultrie's evidence is of little probative
value. He at first testified in conclusory fashion that Peters
had discharged some employees. Further examination re-
vealed that that testimony was based on an incident in
which Peters told two youths who would not work to "work
or go home." The conclusory and unprobative character of
Moultrie's testimony is evident from his testimony as to
what then happened:
THE WITNESS : They left, they quit , he fired them.
THE WITNESS: No, when I say quit, he fired them. Then
they left. That is what-they quit.
Harold Stark's testimony is that Peters had authority to
discharge employees. In addition he testified that Peters
once fired three youths who were not working. Specifically,
heretofore, Fred Stark admittedly knew, according to Ha- 10 Harold Stark was unable to supply this information at the hearing.
FRED STARK
Stark said that I to 2 years before, at the end of a work day,
Peters told him that the youths were fooling around and
were not working and that he had discharged them.
Peters denied firing or recommending the firing of any-
one. With respect to the incident concerning the three
youths, Peters testified that they did not come back to work
after the breaktime at 10 a.m. and that at around 10:30 he
called Fred Stark on the telephone and advised him of the
fact. At about 11 he again called Stark to say that the youths
had not come back. Fred Stark told him that if they re-
turned to send them to the office, which Peters did when
they returned around 2 p.m. Fred Stark did not, as we have
seen, testify. I have previously credited Peters' testimony in
other particulars, and discredited Harold Stark's. In this
instance I accept Peters' testimony and reject that of Harold
Stark.
I therefore find that the evidence does not establish that
George Peters was a supervisor within the meaning of the
Act.
General Conclusions
On the basis of the foregoing findings I find that the
Respondent discharged and failed and refused to reinstate
Charles Thompson, Roger Evans, Jeffrey Maksymchak,
Wayne Huff, Felipe Ortiz, and George Peters, because they
had joined and assisted the Union and engaged in concerted
activity for the purpose of collective bargaining and mutual
aid and protection. By such conduct the Respondent violat-
ed Section 8(a)(1) and (3) of the Act.
It is further found that by interrogating and warning
Bishop and Peters concerning union activity, and by telling
Maksymchak that he could have his job back if he got out
of the Union, the Respondent further violated Section
8(a)(1) of the Act.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices I shall recommend that it cease and desist
therefrom and take certain affirmative action in order to
effectuate the policies of the Act.
It will be recommended that the Respondent offer
Thompson, Evans, Maksymchak, Huff, Ortiz, and Peters
immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their senior-
ity and other rights and privileges, and make each of them
whole for any loss they may have suffered by reason of the
discrimination against them. Such reinstatement shall be
effected, and any back pay found to be due shall be comput-
ed in accordance with the Board's usual policies in such
cases.
Upon the foregoing findings and conclusions, and pur-
suant to Section 10(c) of the Act, I hereby issue the follow-
ing recommended:
ORDER II
217
Fred Stark, Jamaica 201 St. Corp., Inc., and Jamaica 202
St. Corp., Inc., New York, New York, their partners, offi-
cers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Discouraging membership in Local 32B, Service Em-
ployees International Union, AFL-CIO, or any other labor
organization, by discharging, refusing to reinstate or to re-
hire employees, or by subjecting them to demeaning condi-
tions of employment, or otherwise discriminating against
them in any manner with regard to their hire and tenure of
employment or any term or condition of employment.
(b) Coercively interrogating employees concerning
union activities, sympathies or membership.
(c) Threatening employees with reprisals in employment
for adherence to, or support or selection of, a union as a
bargaining representative.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form, join, or assist the above-named labor
organization, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Charles Thompson, Roger Evans, Wayne Huff,
Jeffrey Maksymchak, Felipe Ortiz, and George Peters im-
mediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their
seniority or other rights and privileges.
(b) Notify the above-named employees, if presently serv-
ing in the Armed Forces of the United States, of their right
to full reinstatement upon application in accordance with
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Services.
(c) Make whole Thompson, Evans, Huff, Maksymchak,
Ortiz and Peters for any loss of earnings suffered by reason
of the discrimination against them.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amounts of backpay and the rights of reinstate-
ment due under the terms of this Order.
(e) Post at its places of business in New York, New York,
copies of the attached notice marked "Appendix." 12 Copies
of said notice, on forms provided by the Regional Director
11 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Section
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
12 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for Region 29 of the National Labor Relations Board, after
being duly signed by Respondent 's authorized representa-
tive , shall be posted by the Respondent immediately upon
receipt thereof, and maintained by it for 60 consecutive
days thereafter, in conspicuous places , including all places
where notices to employees are customarily posted . Reason-
able steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.