Liston Aluminum

National Labor Relations Board - Board Decisions

Oct 5, 1989

296 N.L.R.B. 1181 (N.L.R.B. 1989)

LISTON ALUMINUM
Liston Brick of Corona , Inc., d/b/a Liston Alumi-
num and Glass, Molders, Pottery, Plastics &
Allied Workers International Union, AFL-
CIO-CLC. Cases 21-CA-25955 and 21-RC-
18115
October 5, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On March 2 , 1989, Administrative Law Judge
Joan Wieder issued the attached decision . The Re-
spondent filed exceptions and a supporting brief, to
which the Charging Party and the General Counsel
each filed an answering brief . The Charging Party
also filed exceptions , and the General Counsel filed
cross-exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions , cross-exceptions,
and briefs and has decided to affirm the judge's rul-
ings, ' findings ,2 and conclusions3 and to adopt the
recommended Order4 as modified.
i The Respondent has excepted to some of the judge 's credibility find-
ings The Board's established policy i% not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products , 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir. 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 The General Counsel and the Charging Party except to the judge's
dismissal of the allegation that on January 18, 1988 , the Respondent's
plant superintendent , Craig Hall , made a threat to discharge employees in
violation of Sec 8(a)(1) to Tony Castillo , vice president of the Union's
Local 192 , but not an employee of the Respondent However, the judge
found , and we agree , that the Respondent violated Sec . 8(a)(1) when its
president , Jack Hall , made a similar threat directed against employees the
following morning We therefore find it unnecessary to pass on the issue
of the statement made to Castillo because any finding of an additional
threat would be cumulative and not affect the remedy.
In the cross-exceptions , the General Counsel repeats the assertion that
the replacement employees did not become permanent employees until
several weeks after January 19, 1988 However , the judge found, and we
agree , that only one replacement employee was hired before the striking
employees made their first unconditional offer to return to work We
therefore find that it is not necessary in ruling on any of the complaint
allegations to resolve the issue of the permanent status of the replacement
employees
Member Devaney agrees with the judge for the reasons she sets out at
sec. l1,G , I, par 1, that Jack Hall's letters violated the Act and therefore
he finds it unnecessary to pass on the alternative basis the judge set out at
par. 2 of that subsection.
8 At one point in her decision , the judge inadvertently described the
unlawful threats made by Jack and Craig Hall as occurring on January
18 and 19 The threats were made by both persons on January 19
4 In her discussion recommending that the challenges to the ballots of
the pouring crew be overruled , the judge listed four of the pouring crew
by name She inadvertently failed to name the fifth member of the pour-
ing crew , Felix Nava , whose ballot , as described by the judge, was also
challenged by the Board agent because his name was not on the eligibil-
ity list . It is undisputed that Nava was a member of the pouring crew and
the judge correctly included his name in her recommended Order requir-
ing the Region to open and count the ballots of eight employees
1181
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and orders that the Respondent
Liston Brick of Corona , Inc., d/b/a Liston Alumi-
num, Corona , California, its officers , agents, succes-
sors, and assigns , shall take the action set forth in
the Order as modified.
Insert the following as paragraph 2(c) and relet-
ter the subsequent paragraphs.
"(c) Remove from its files any reference to the
unlawful discharges and notify the employees in
writing that this has been done and that the dis-
charges will not be used against them in any way."
IT IS FURTHER ORDERED that Case 21-RC-18115
be severed and remanded to the Regional Director
for Region 21, who shall, pursuant to the Rules
and Regulations of the Board , within 10 days from
the date of this Decision and Order , open and
count the ballots of Jose Hernandez , Rafael
Campos, Alfredo Cervantes , Antonio Granados,
Maximiliano Madrigal , Felix Nava , Jose Cervantes,
and Luis Madrigal , and shall serve on the parties a
revised tally of ballots, and based on the count,
issue an appropriate certification.
Lana Hill Parke, Esq., for the General Counsel.
James T Winkler, Esq. and Marilou F. Mirkovich, Esq.
(Atkinson, Andelson, Loya, Ruud & Romo), of Cerritos,
California , for the Respondent.
Carl S. Yaller, Esq., of Media , Pennsylvania , for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge . These con-
solidated cases were tried in Corona , California, on vari-
ous dates in June and August 1988 . 1 In the unfair labor
practice case the charge was filed by the Glass, Pottery,
Plastics & Allied Workers International Union, AFL-
CIO, CLC (the Union), against Liston Brick of Corona,
Inc., d/b/a Liston Aluminum (Respondent or Company)
on January 21. The charge was amended on March 24.
A complaint was issued April 13 alleging, inter alia, that
Respondent violated Section 8(a)(1) and (3) of the Act.2
i All dates are in 1988 unless otherwise indicated
2 The complaint was amended at the hearing to indicate that the
Union 's name was changed as the result of its merger with another union
in April. There are no allegations raised in this proceeding regarding this
merger of International labor organizations After a careful review of the
evidence , I find this merger does not require any rulings herein The
complaint was also amended to include the allegations that Respondent,
on or about January 18 and again on January 20 , through Jack Hall, in-
formed employees they no longer had jobs because they engaged in con-
certed protected activities for the purpose of collective bargaining or
other mutual aid or protection Respondent objected to the lateness of
the amendment , having been notified only the day before trial com-
menced
Continued
296 NLRB No. 156
1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In -substance , the complaint alleges that Respondent
violated Section 8(a)(3) and (1) of the National Labor
Relations Act (the Act), as follows: since on or about
January 19, it had failed and refused to reinstate striking
employees following their unconditional offers to return
to work, at a time when these striking employees had not
been permanently replaced ; and, on the same date dis-
charged these striking employees because of their union
and other protected concerted activities ; that the eco-
nomic strike was converted by these unlawful acts into
an unfair labor practice strike; and , Respondent, on or
about February 12, unlawfully suspended employees Jose
Cervantes and Luis Madrigal and then unlawfully dis-
charged them on or about March 3.
The complaint further asserts that the Company,
through its agents Jack and Craig Hall,3 made unlawful
threats of termination and/or plant closure in violation of
Section 8 (a)(1) of the Act. Respondent filed a timely
answer to the complaint , which was amended at hearing.
The answer admitted some of the allegations but denies
the commission of any of the alleged unfair labor prac-
tices . Respondent also asserted as affirmative defenses
that certain alleged strikers are not eligible for employ-
ment and others engaged in picket line misconduct and
other misconduct which disqualifies them from employ-
ment.4
On March 4, pursuant to a stipulated election agree-
ment, a Board-conducted election was held among the
employees in the following bargaining unit:
All production and maintenance employees, ship-
ping and receiving employees and truck drivers em-
ployed by the Employer at its facility located at
20401 Temescal Canyon Road, Corona, California;
excluding all other employees, office clerical em-
ployees, professional employees, guards, and super-
visors as defined in the Act.5
The election results are as follows : there were about 82
eligible voters with 28 voting for the Union and 24 bal-
lots cast against the Union ; there were no void ballots
and 22 challenged ballots.
Specifically, the ballots of Jose Lopez , Rogelio Nieves,
Gregorio Palacios, Rafael Orozco , Jaime Ramirez, Jose
Rodriguez , Adolfo Romo, Cipriano Gonzalez, Teodoro
Garcia, Rogelio Silvestre, Miguel Romo , and Roberto
Valdez were challenged by the Union on the ground that
Respondent was afforded the opportunity to demonstrate prejudice or
denial of due process throughout the proceeding but failed to do more
than merely allege at the commencement of the proceeding that this
amendment of the complaint was improper . Respondent 's failure to but-
tress its objection with specifics at any juncture of the proceeding re-
quires affirming the finding the amendment was proper and Respondent's
objections are without merit.
Craig Hall's full name is Norman Craig Lee Hall and testified under
his full name at his second appearance as a witness in this proceeding.
' Respondent contended in its fourth affirmative defense that Daniel
Pachecho , Manuel Cervantes, Guilleano Salasae, and Ramon Gonzales
engaged in misconduct which disqualified them from employment. There
was no evidence presented supporting this defense. It appears to have
been abandoned by Respondent After considering all the evidence ad-
duced at the trial in this case , I find this defense to be without merit
' It is undisputed , and I find , that the stated unit constitutes an appro-
priate unit for purposes of collective bargaining within the meaning of
Sec. 9(b) of the Act
they are ineligible voters because they are not permanent
replacements for economic strikers . The ballots of Jose
Hernandez , Thomas Hooton,6 Felix Nava Lazarro,
Rafael Campos Leon , Maximiliano Madrigal , Antonio
Granados , Alfredo Cervantes, Pedro Rodriguez, Jose
Cervantes, and Luis Madrigal were challenged by the
Board agent because their names did not appear on the
list of eligible voters submitted by the Employer. Jose
Cervantes and Luis Madrigal were named as discrimina-
tees in an unfair labor practice proceeding . The Union
and the General Counsel also contend that Jose Hernan-
dez was an eligible voter for he was on medical disability
at the time of the election and had a reasonable expecta-
tion to return to work. The Regional Director ordered a
hearing upon the challenged ballots, except Hooton's, in
conjunction with the unfair labor practices alleged in the
complaint.
All parties appeared at the hearing were afforded full
opportunity to participate , to introduce relevant evi-
dence, to examine and cross -examine witnesses , to argue
orally, and to file briefs. Briefs, which have been careful-
ly considered , were timely filed by all parties.
On the entire record , and from my observation of the
witnesses, who were sequestered , and their demeanor,
and upon substantial , reliable evidence considered along
with the consistency and inherent probabilities of the tes-
timony,7 I make the following
FINDINGS OF FACT
1. JURISDICTION
The Respondent is a California corporation engaged in
the processing of scrap aluminum into aluminum ingots.
The pleadings establish and I find that it is an employer
engaged in and affecting commerce within Section 2(2),
(6), and (7) of the Act.
The parties also agree and I find the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
IL THE ALLEGED UNFAIR LABOR PRACTICES AND
THE CHALLENGED BALLOTS
A. Background
The Company is engaged in the business of processing
scrap aluminum into aluminum ingots in Corona, Califor-
nia. As here pertinent, Respondent , at least prior to Janu-
ary 19, employed individuals in the classifications of fur-
nace operator , dryer operator, shredder operator, yard-
man, pouring crew , and general maintenance. On or
about January 17 approximately 35 employees held these
positions.
Respondent is primarily a family run company with
Jack Hall , the president ; his brother Howard Hall, plant
manager responsible for maintenance ; and his son Craig
Hall, the plant superintendent in charge of the work
force. These family members were admitted supervisors
6 The challenge to Hooton 's ballot was sustained as neither party
claimed he was an eligible voter.
7 See generally Universal Camera Corp. Y. NLRB, 240 U.S. 474, 496
(1951)
LISTON ALUMINUM
and agents of the Company. Also working for the Com-
pany is Jack Hall's former daughter -in-law , Cyndi Gates
who is Respondent 's office manager; Deborah Corbet,
Jack Hall's daughter who is assistant to the president re-
sponsible for payroll, employee health insurance and the
"right to know" program , accounts payable as well as
other unspecified duties; and Barbara Escalante, another
daughter of Jack Hall, who runs the shipping and receiv-
ing department . Another admitted manager of the Com-
pany was Jesse Flores. The Company had four foreman
as of January 20; Mike Hall,8 Jesse Garcia , Dale Titus,
and Pete Escalante Jr.9
Prior to January, Respondent had a 24-hour operation
usually 5 days a week, utilizing three employee shifts;
first shift from 8 a.m. to 4 p.m., second shift from 4 p.m.
to midnight , and third shift from midnight to 8 a.m. The
employees worked a lot of overtime . Respondent's pro-
duction employees were not represented prior to the
strike but at one time there was designated an employee
from each shift to be their spokesmen.
Immediately prior to January 19, as here pertinent,
there was only one employee representative for the three
shifts, Luis Reynoso.' 0 Reynoso has been an employee
since 1975. Reynoso was a furnace operator on the 8
a.m. to 4 p.m. shift. As a committeeman , he was also in-
structed to relate to management employee complaints
and concerns. He held this charge for at least the past 9
years.
B. Events Leading to Strike
According to Reynoso 's uncontroverted testimony,
those employees who worked at or near the furnaces
were subjected to extreme heat . The temperature of the
furnaces when they are operating are between 1600 and
1700 degrees Fahrenheit and the dryers about 900 de-
grees Fahrenheit . The demands created by the working
conditions led the employees to relinquish their morning
and afternoon 10-minute breaks and add the time to their
30-minute lunch period so they would have a 50-minute
break in which to regain their strength and cool off. I t
8 Mike Hall is Jack Hall's brother His supervisory status was not
placed in issue.
8 None of the foreman appeared and testified Only Pete Escalante Jr's
absence was explained , he was suffering from cancer at the time of the
strike and subsequently died from the disease prior to the commencement
of this trial
10 Jack Hall represented that there was one committeeman from each
of the three shifts , Reynoso , Pedro Madrigal, and Adan Reyes. Reyes
was ostensibly the committeeman from the third shift , thus leaving Pedro
Madrigal as the representative of the second shift Pedro Madrigal and
Adan Reyes did not appear and testify . Their absences were unexplained.
Based on demeanor , I credit the testimony of Reynoso that he was the
only committeeman at the plant at all times material prior to the strike.
Reynoso appeared much more candid and seemed to be trying to relate
all he knew without regard to any impact his testimony might have on
his interests.
11 Respondent , in the testimony of Jack Hall, admitted how arduous
and debilitating working near the furnaces was when he testified that
after replacing strikers with new employees they tried to use regular em-
ployees at the time the metal had to be poured but this was so difficult
and required so much strength and energy that they had to resort to the
reestablishment of a special pouring crew which was on call for all shifts.
1183
They were privileged with the 50-minute lunch period
for the past 10 to 13 years.
Jack Hall determined to reinstate the shorter lunch
hour12 with two additional breaks to be taken at times
other than during the lunchbreak . This decision , accord-
ing to Jack Hall , was prompted by notices of violation of
a clean air standards statute which he attributed to the
shutting down of the dryers during lunch hours.' 3
On or about January 15, Mike Hall told Reynoso they
had good news and bad news for the employees; the
good news was that they were giving the employees a
raise of 50 cents per hour. 14 Reynoso replied that the
shortened lunch hour was inadequate to permit those em-
ployees working at or near the furnaces and dryers to re-
cover from the effects of the heat and he asked to speak
to Jack Hall . He was denied this request and instructed
to return to work . Respondent proceeded to inform pro-
duction employees , by shift, of these changes . 15 In addi-
tion to Reynoso 's efforts to speak to Jack Hall , the em-
ployees on the first shift asked Jesse Flores if they could
speak to Jack Hall and were told he was not available.' e
12 Jack Hall testified that he proposed a 30-minute lunch hour which
would be unpaid . The employees that testified generally referred to a 20-
minute lunch hour with a t0-minute break before and after work adding
20 minutes to their workday . After the striking employees were replaced,
the Respondent implemented the program as described by the employees
lending credence to their representations . Another factor in addition to
the demeanor of Jack Hall, which I find unconvincing , is inherent prob-
abilities and inconsistencies . For example, 'Jack Hall testified that he
merely proposed the alteration in the lunchbreak for the employees to
consider. In his affidavit , given on January 26, a time much closer to the
events in question , he gave no indication the change in the lunch hour
was a mere proposal which the employees could counter . He admitted he
was not bargaining with the employees and the affidavit states
To correct this problem , the Company announced to its employ-
ees, on January 15, that the Company was going back to the practice
of having a 10-minute break in the initial four hours of shift , another
in the second four hours of shift There would be a 30-minute lunch
period [Emphasis supplied ] We told the employees that the 30
minute lunch break would not be paid time, but that the Company
was going to increase employees wages by 50 cents an hour.
13 Reynoso testified, without contradiction from any supervisor en-
gaged in managing the operations in the plant , that the lunch hours were
staggered and the dryers were not turned off during lunch hours. The
failure of any supervisor demonstrably knowledgeable of the daily oper-
ations on the plant floor during the various shifts, to refute this testimo-
ny, as well as Reynoso 's straight forward and convincing demeanor, lead
me to credit his testimony.
14 Respondent generally gave its employees wages and benefits similar
to those of a competitor located in or near Corona The competitor had
increased its employees' wages by 50 cents per hour and Liston was ad-
hering to the admitted established practice of awarding similar wages.
is As previously noted , Jack Hall testified the changes to the lunch
hour was merely a proposal . Based principally on demeanor, this testimo-
ny is not credited Further, I find it inherently improbable , since lack
Hall failed to so advise the employees when he spoke to them at the
commencement of the strike on or about January 17 Also, the individ-
uals who informed the employees , such as Foreman Mike Hall and Su-
pervisor Jesse Flores , did not appear and testify Their absences were un-
explained.
is According to the uncontroverted testimony of Luis Reynoso, Jesse
Flores met with the day-shift employees at the end of their shift , around
4 p.m. and told them "You're going to get 50 cents increase, but the 30
minutes are going to be taken away " An employee named Hilberto Cer-
vantes (phonetic ) said, "We want to talk to Jack Hall not with you."
Flores inquired why they wanted to see Jack Hall Reynoso told him
"We accept your conditions that you 're saying and after-if we go see
Jack for a problem that we may have and then Jack is going to say 'No,
I didn 't say that."' Flores then left the meeting site "angry ." The compa-
ny implemented the proposed change in breaks including having breaks
before and after the employees ' workdays
1184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Most of the communications between Respondent's
representatives and its employees required the use of in-
terpreters , either Flores, Reynoso, or another agent.
Most of the employees spoke only Spanish . In making
credibility resolutions , the difficulties occasioned by this
method of communication have been considered.
The production employees decided to hold a meeting
at a local park on January 17. At the meeting they decid-
ed to go to the plant at midnight and try to speak with
Jack Hall about the changes to their breaks . Midnight
was chosen since it was the time the first shift of the
workweek was scheduled to commence . Approximately
30 employees gathered outside the plant entrance at mid-
night . These employees requested a foreman, Pete Esca-
lante, to telephone Jack Hall because they wanted to talk
to him . Escalante acceded to their wishes and called
Jack Hall.
Jack Hall initially testified he asked Pete Escalante the
nature of the problem and Escalante replied he did not
know. Jack Hall then telephoned Craig and Howard
Hall and asked the same question . When they replied
they did not know, he asked they meet him at the plant.
On cross-examination , Jack Hall admitted asking Pete
Escalante to return to the employees and try to deter-
mine the nature of the problem . About 5 minutes later,
Pete Escalante telephoned him and reported that the em-
ployees did not want to return to work without speaking
with Jack Hall because they were unhappy about the
change in the lunchbreak . Jack Hall then called a long-
time friend , Roy Boyer , because he had extensive labor
relations experience and sought his advice ; which was
that it sounded like a strike so he warned that the em-
ployees have rights, that he could not fire them.
Craig Hall was the first to arrive at the facility and he
told the employees, according to the uncontroverted tes-
timony of Jose Gerardo, that : "My dad is not going to
change his mind ." This statement confirms the above
finding that Jack Hall 's claim the change in lunch and
other breaks was merely a proposal , is not credible.''
The employees then waited for Jack Hall. When Jack
Hall arrived he inquired if the employees who were to
start work at midnight were present and they answered
yes. He then told them to go to work, to which one of
them replied, they did not want to lose their lunch
period "because 20 minutes is not enough ." Jack Hall
then inquired if the employees were going to work, and
when no one moved Jack Hall said : "Go to work and
we can talk about this tomorrow."
19 Another example of Jack Hall 's disingenuousness is his testimony
that on January 18 when he went to the plant shortly after midnight, he
told the employees that the change in lunch and other breaks was only a
proposal He then claimed that he told them to go back to work and they
would discuss it tomorrow . The reference to a discussion on the morrow
was what he asserted informed the employees the change in lunch and
other breaks was a mere proposal that was not finalized . As found above,
the statements made by Jack Hall in his affidavit of January 26 are more
credible than his testimony , which was replete with volunteered testimo-
ny, despite a warning that such volunteering is a factor considered in
making credibility resolutions In his affidavit , he stated . "At the time I
was speaking to the employees , it, meaning the changes, had not been
really put into effect , but it [sic] would have been implemented soon after
that "
Jack Hall also claims he told the employees at this
time that if they did not clock in and go to work, they
could be replaced . His affidavit did not contain any ref-
erences to this claim the employees were informed they
could be replaced. Jack Hall then testified that he was
not sure if he told the employees they could be replaced
but claims there was an implication they could be re-
placed if they did not return to work that night. The
predicate from which the employees could draw this im-
plication was not provided by Jack Hall. This shifting
testimony is further evidence of his dissimulation. When
there was no reply from the employees , Jack Hall went
into the facility . He then tried , without success, to con-
tact his attorney.
Thirty-five employees joined in the concerted work
stoppage . These employees are listed in appendix C
[omitted from publication ]. For the reasons stated below,
the names of employees who were admittedly working
as members of the pouring crew and Maximiliano Madri-
gal have been included in this list.
The Respondent did not consider Rafael Compos, Al-
fredo Cervantes, Antonio Granados, and Felix Nava eli-
gible for reinstatement , claiming they were illegal aliens.
These employees were members of the pouring crew.
This claim is discussed in detail infra . Respondent also
claims confusion about the status of Maximiliano Madri-
gal. Madrigal testified , without refutation , that he was
last hired by Liston in November 1987 and was working
at the time of the strike sweeping and "pouring things";
and he participated in the strike . He also stated without
dispute that he worked at least 40 hours a week prior to
the strike on the first shift , 8 a.m. to 4 p.m., earning $5
an hour and was supervised by Mike Hall . Based on his
demeanor, which exhibited candor , Madrigal's testimony
is credited.
C. Events ofJanuary 18
Shortly after he arrived at work, Jack Hall called his
attorney. He related the contents of the meetings he had
with the employees about the proposed changes in wages
and working conditions as well as the meeting with them
the preceding evening . He asserts he was advised not to
fire anyone because the employees had rights, but if he
wanted to continue to run the plant he could permanent-
ly replace workers who had not reported to work for
their shifts . Jack Hall informed the attorney he had not
fired anyone . The attorney also mentioned recall rights
but Jack Hall could not remember if it was during this
conversation or at a later date.
Also on Monday morning, January 18, Craig Hall
came to the gate where the employees were gathered
and informed them his father wished to speak to their
representatives . The employees chose Reynoso, Gerardo,
and David Castillo to be their representatives. These em-
ployees went to Jack Hall's office. Present for Respond-
ent were Jack , Craig , and Howard Hall, and Jessie
Flores . Jack Hall presented his reasons for the change in
breaks including the need to increase production and to
keep the furnaces and dryers operating because restarting
them after a shutdown caused too much smoke. Jack
Hall explained that Respondent needed to increase pro-
LISTON ALUMINUM 1185
duction by decreasing the lunch hour because of produc-
tion costs and the increased price of aluminum.18
Reynoso explained that during his shift the supervisor
staggers lunchbreaks to obviate the need to shut down
the dryers and furnaces . According to Reynoso , this in-
formation did not change Jack Hall 's position . Jack Hall
said he did not know the operating practice of the day
shift but he wanted to reduce the lunch hour to 30 min-
utes and have two breaks , one at the start of the work-
day which would require the employees on each shift to
come to work 15 minutes earlier , and the other after the
finish of the workday, thereby requiring the employees
to stay 15 minutes after the end of their workday. Ger-
ardo also candidly testified that Jack Hall told the com-
mittee that if the night shift did not report for work at
midnight , they would be replaced ; and if the day shift
did not report at 8 a .m. tomorrow they would be re-
placed ; and "the same thing for the other shift."19
The committee agreed to present the Company's pro-
posals and replacement message to the employees. The
committee complied with their agreement , but the em-
ployees turned down Respondent 's proposal . The em-
ployees, after talking with Tony Castillo, the son of
David Castillo , 20 a former employee of the Company
and the vice president of Local 192 of the Union , agreed
with Tony Castillo that they draft their own proposals to
present to Respondent . Tony Castillo helped the employ-
ees to formulate their eight proposals and on January 18,
while with Tony Castillo, Gerardo gave them to Craig
Hall for the Company 's consideration . Gerardo asked
Craig Hall to give the proposals to Jack Hall.
Tony Castillo, with the agreement of the employees,
attempted to discuss the employees ' position with Jack
Hall. He tried to telephone Jack Hall , but Jack Hall ad-
mittedly would not talk to him. Tony Castillo then
talked to Craig Hall and offering his assistance to end
the dispute and said he would be by the gate if Jack Hall
wished to talk to him.
Jack Hall testified that when he was given the propos-
als he heard they were from Tony Castillo, so he did not
look at them until some months after January 18. He ad-
mitted the Company never replied to the employees'
18 Jose Gerardo 's testimony that Jack Hall discussed the need for in-
creased production is credited based principally on demeanor . Also con-
sidered are the inherent probabilities For example , the schedule of breaks
implemented by the Company after January 19 increases the amount of
time the employees worked for the Company by adding unpaid breaks
before and after each shift and reducing the time of the lunchbreak. Ger-
ardo corroborated Reynoso 's version of Jack Hall's proposal.
19 Jack Hall gave a somewhat different version of this meeting, which
was not credited for his demeanor was not convincing He did not appear
to be attempting to give a full and fair rendition of the events, on the
contrary , at times he was extremely defensive without cause, and, as pre-
viously noted , volunteered information There were also patent inconsist-
encies in his testimony, particularly after the more than 1-month hiatus in
the trial. Some of these inconsistences are detailed infra in the section
dealing with strike replacements
20 David Castillo requested his son 's help to resolve the Liston em-
ployees' problems with Respondent Tony Castillo had worked for Re-
spondent from April through January 1977 as a furnace operator He cur-
rently works for Manville Sales Corporation in Corona, California, as a
quality control inspector He was informed by his father of the labor dis-
pute concerning the lunchbreak when he went home for lunch. After
work he went to the Liston facility to ascertain the nature of the prob-
lem
proposals. Also on January 18, the employees discussed
the need to acquire the assistance of a union.
About 5 p.m., after discussing with his son his hope
the employees would return to work, Jack Hall instruct-
ed him to dig out the applications they had on file and
make phone calls to see if anyone was looking for work.
D. Termination and Other Threats by Craig Hall
About 6 p.m. on January 18, while Tony Castillo was
waiting outside the facility to see if his offer of assistance
would be accepted by Jack Hall , and immediately prior
to Gerardo handing the proposals to Craig Hall, Craig
and Mike Hall exited the plant in a vehicle and parked
near Tony Castillo . After exchanging greetings, Craig
Hall asked Tony Castillo : "Hey, what are these people
doing here? They don't work here any more." Tony
Castillo replied that the strikers were not on Liston
property and had a right to be there ; and, "[a]s part of
them not working here anymore , I don't think you're
being fair to them."
According to Tony Castillo's undisputed testimony,
the conversation with Craig Hall continued as follows:
Okay, [Craig] said , "Hey, these people refuse to
work under my dad 's conditions and that's it, you
know , they don't want to work here , they don't
work here anymore ." So I [Tony Castillo] said-I
indicated to him that again , "I don't think this is
fair, you know , and I think it's time for us to call in
a Federal mediator ...."
So he [Craig Hall] said , "Oh, we don't need any-
body to come in and do this for us. We have direct
contact with our attorneys . They are telling us what
to do, we don't need anybody else."
Tony Castillo's undisputed testimony is credited based
principally on his convincing demeanor . In support of
this conclusion is the admitted subsequent threats of
Craig Hall which were of the same genre. Gerardo was
standing in close proximity to the vehicle but candidly
testified that he did not overhear the conversation be-
cause he was engaged in a conversation with another
person . Considering the lack of controversion and Tony
Castillo's convincing demeanor as well as inherent prob-
abilities , this lack of corroboration merely enhances Ger-
ardo's credibility ; in these circumstances, it does not call
into question Tony Castillo's believability.
Also noted is the fact that Tony Castillo did not at-
tempt to create an unlawful situation by claiming that
employees participated in this conversation or that he re-
lated Craig Hall's threats to employees . While employees
were gathered in the vicinity of the vehicle, there is no
evidence that any heard Craig Hall's statements. I there-
fore find these statements by Craig Hall were not viola-
tive of the Act. They will, however, be considered in de-
termining whether he made the alleged threats to em-
ployees.
As Respondent admitted , around 7:45 a.m. on January
19, Craig Hall threatened employees . Howard Hall also
admitted to being present. Both Howard and Craig Hall
are admitted supervisors with the authority to hire and
1186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fire. Specifically, Gerardo testified without controver-
sion, that while talking to Craig Hall , Gerardo said "we
were there ready to work but we-we were waiting for
the [C]ompany 's answer about our [proposals]... .
Craig Hall replied "that he [Craig] had heard from some-
body that we got somebody to represent us.21 And he
start telling me that-he told me 'I 'm going to [tell you]
one thing Primo,22 before I give any of you guys your
job back I 'll close this place and just put a lock on the
gate ." Miguel Moreno corroborated Gerardo's testimony
stating that he overheard Craig Hall say "Before you
guys come in, I lock the gate!" Gerardo told all the
other strikers what Craig Hall said.23
Jack Hall testified he learned of the allegations that
Craig Hall told an employee that before he would let
them in the plant he would lock the gate and throw the
key away, around the middle of March . Jack Hall asked
his son about the incident and Craig admitted the allega-
tions were true . On the advice of counsel , Jack Hall sent
letters, one in English and the other in Spanish, to the
striking employees disavowing his son 's statements.24
This letter does not constitute repudiation of Craig Hall's
statements on January 19, and Respondent does not raise
such a claim.25
21 Craig Hall had spoken to Tony Castillo the preceding day, knew
him and perhaps of his position as vice president of a local union. Craig
Hall did not disavow making reference to representation of the employ-
ees by a third party.
22 "Primo" is Gerardo 's nickname
22 According to Craig Hall-
[He] said , to get the hell out of my driveway, that they had no right
of blocking my driveway and I said that to Jose Gerardo directly.
At about the time I said that to Jose Gerardo, Vincente Ponce Ger-
ardo and Luis Madrigal were behind me and I'm not sure which one
said what , but one of the two, in Spanish, called me a "Puto" and
about that time, took off-those two had long jackets on-took those
off and put them on the ground.
The employees , including Jose Gerardo and Miguel Moreno denied
that Craig Hall referred to their blocking the driveway and disclaimed
any allegation that the employees were blocking the driveway . Howard
Hall attempted , unconvincingly , to corroborate Craig Hall 's testimony.
Howard Hall did not appear straightforward.
Jack Hall testified that strikers were blocking the entrance to the plant
the morning of January 19, and he notified the police ; in fact a police
captain came to his office around 10 a.m to take a report No such report
was placed in evidence I find these employees were the more credible
witnesses based on demeanor . They appeared much more convincing
There is no claim that there was any misconduct the morning of January
19 which disqualifies any employee from reinstatement.
24 The letters are dated February 8 The English version provides:
It is my understanding based on an NLRB investigation that there
is an allegation that a member of management has stated to striking
employees that we would padlock our gates before we ever let the
striking employees back.
I am investigating this allegation to determine if it was made. If it
was made , I will make sure that it does not happen again
The Company recognizes your right to engage in a strike We
have absolutely no intention to "padlock the gates " or take any
action to prevent you from coming back to work pursuant to your
rights.
We recognize your right to be on a preferential hire list and we
have in fact offered employment to certain employees on the prefer-
ential hiring list.
25 Even if repudiation were a factor to be considered , there was no ef-
fective disavowal of Craig Hall 's statements and no disavowal of Jack
Hall's comments As set forth in Passavant Memorial Area Hospital, 237
NLRB 138 (1978)
An employer may relieve himself of liability for unlawful
conduct by repudiating the conduct . To be effective , however, such
repudiation must be "timely," "unambiguous," "specific in nature to
Discussion
It is undisputed that the employees were engaged in an
economic strike at the time Craig Hall made these com-
ments to at least several striking employees . It is also un-
disputed that the strike was conduct protected under
Section 7 of the Act which guarantees "Employees shall
have the right . . . to engage in . . . concerted activities
for the purpose of collective bargaining or other mutual
aid or protection."
Section 8(a)(1) of the Act provides that it is an unfair
labor practice for an employer "to interfere with, re-
strain , or coerce employees in the exercise of the rights
guaranteed in Section 7."
Respondent , properly, does not claim that Craig Hall's
comments, here under consideration , were protected by
Section 8(c) of the Act. Craig Hall clearly and unequivo-
cally informed employees engaged in concerted protect-
ed activity that their actions , including seeking union as-
sistance and engaging in an economic strike, would result
in their loss of employment , for he would "lock the
gate" before he would permit any of the strikers to
return to work. It is an unfair labor practice for an em-
ployer to threaten employees for engaging in an econom-
ic strike . Medallion Kitchens, 275 NLRB 58 (1985); Aero
Quality Plating Co., 281 NLRB 138 ( 1986). Craig Hall's
statement was not softened by any contemporaneous as-
sertion that the striking employees had been replaced.
G. W. Galloway Co., 281 NLRB 262 (1986). I find this
conduct interfered with the strikers Section 7 rights to
engage in protected activity in violation of Section
8(a)(1) of the Act.
The Board further found in Aero Quality Plating Co.,
id. at 138, that , as a result of the unlawful threat, "the
economic strike was converted into an unfair labor prac-
tice strike." I conclude that the same result is warranted
herein . This unfair labor practice was not the only one
engaged in by Respondent prior to any alleged perma-
nent replacement of the striking employees, as discussed
below , and these violations prolonged the strike.
E. Alleged Threat by Jack Hall
According to Miguel Moreno , about 7:35 a.m.26 on
January 19, Jack Hall arrived at the gate where Moreno
was positioned , stood next to his son Craig, and said:
"Get out of my way. Everybody's replaced already... .
You guys go look for another job. You guys don't want
the coercive conduct ," and "free from other proscribed illegal con-
duct ." Douglas Division , The Scott & Fetzer Company, 228 NLRB
1016 (1977), and cases cited therein at 1024.
Any claimed disavowal in this case was ineffective to abrogate the
Respondent 's unlawful conduct for it was not timely It was not
made before all the employees were replaced . The letter also failed
to disavow all of the unlawful conduct Respondent unquestionably
failed to meet all the criteria set forth in Passavant, supra . Cf. Inter-
national Union, United Automobile, Aerospace & Agricultural Imple-
ment Workers of America, Local 376, 278 NLRB 285 (1986).
26 Miguel Moreno and Gerardo differ slightly in their recall of the
time of the statements by Jack and Craig Hall, but since they are within
10 minutes of each others recollections of time, I find this disparity does
not impair their credibility
LISTON ALUMINUM
to work." 27-Jack Hall did not deny making these state-
ments . Miguel Moreno related these statements to the
other strikers.
I find Miguel Moreno testified in a straightforward
manner with convincing demeanor . He is currently
working for Respondent , having been recalled on April
17. His position as a current employee testifying counter
to his employer' s interests buttresses the conclusion he
was testifying truthfully.
Discussion
I find that Respondent violated Section 8(a)(1) of the
Act by Jack Hall 's comments that the strikers should
look for another job because they had been replaced at a
time, as found below , they had not been permanently re-
placed . These comments were clearly not a mere attempt
by Respondent to explain to employees that it was exer-
cising its legal right to hire permanent replacements
without also informing them they had the protections as
detailed in Laidlaw Corp., 171 NLRB 1366 ( 1968), enfd.
414 F.2d 99 (7th Cir. 1969), cert . denied 397 U.S. 920
(1969).
In making this finding , I have applied the principals
the Board explicated in Eagle Comtronics , 263 NLRB 515
(1982); which provided an employer does not violate the
Act by informing its employees truthfully that they are
subject to permanent replacement as economic strikers.
This informing of strikers loses the protection of Section
8(c) of the Act if it could be "fairly understood as a
threat of reprisal against employees or is explicitly cou-
pled with such threats ." Id. at 515-516. As found in Gino
Moreno Enterprises , 287 NLRB 1327 ( 1988), the com-
bined references to replacement and definite loss of em-
ployment are inconsistent with Laidlaw Corp., supra,
which guarantees permanently replaced strikers,
who have made unconditional offers to return to
work, the right to full reinstatement when positions
are available and to be placed on a preferential
hiring list if positions are not available . Thus, an
employer's right to permanently replace economic
strikers does not . . . entail an absolute loss of em-
ployment for those striking employees who are re-
placed.
The unfair labor practice in this case is even more trou-
blesome, for the striking employees had not been re-
placed , permanently or otherwise, at the time of this
statement.
In conclusion, I find Jack Hall's comments exceeded
the permissible bounds of protected speech and re-
strained or coerced employees in the exercise of their
rights under Section 7 of the Act. See also Dayton Food
Fair Stores , 165 NLRB 14, 20 (1967), enfd . per curiam in
relevant part 399 F.2d 153, 154 (6th Cir. 968), cert.
denied 393 U.S. 1085 (1982). Accordingly, I find that Re-
spondent violated Section 8(a)(1) of the Act as alleged.
27 While Miguel Moreno testified with the assistance of a duly quali-
fied spanish interpreter, he testified in English when he related Craig and
Jack Hall's statements.
F. Other Events of January 19
1. Union involvement
1187
Shortly after 7 a.m., January 19, Tony Castillo tele-
phoned Joseph Mitchell , a union director with offices in
Dublin , California, to seek help for Respondent's em-
ployees . After talking to Castillo , Mitchell immediately
contacted Jessie Garcia , a service officer for the Union
who had recently moved to Corona, California . Garcia
was given Respondent 's address and instructed to go to
the plant with authorization cards, sign the workers, then
go to the employer to indicate the union represented the
employees who were coming back to work . Garcia also
was given Tony Castillo's phone number . He arranged to
meet Tony Castillo on the way to Liston.
Garcia , who has worked for the Union since June 14,
1978, arrived at Liston between 11 : 15 and 11 :30 a.m.
There were 27 to 30 strikers gathered at or near the
plant entrance when he arrived. He was introduced to
Luis Reynoso, David Castillo , and Jose Gerardo as the
employee committee . Garcia identified himself as an
International representative of the Union . He spoke with
the employees in Spanish and they related some of the
problems which resulted in the strike.
Garcia explained the workings of the Union and in-
formed the strikers that they would have to sign authori-
zation cards to allow him to act as their agent . The cards
were distributed and all employees present, about 27,
signed . While the employees were executing the cards,
Garcia went to a nearby market to telephone Mitchell to
inform him of his actions , including the card signing.
Mitchell instructed him to determine who was the
proper official of the Company to inform that he was
representing the employees and on their behalf to make
an unconditional offer to return to work : "[Mitchell] told
me to tell . . . the Company that we're making uncondi-
tional offer to return to work and that we'd let the prob-
lems, whatever they may be, to be ironed out later be-
tween the-union and whoever, the NLRB."
Garcia returned to the picket line and explained to the
employees that they would have to make an uncondition-
al offer to return to work , which meant that they would
have to work under the Employer 's terms and condi-
tions, including the loss of one-half hour of their lunch-
break and whatever else "Jack indicated ." The Union
would subsequently attempt to resolve the problem with
the Employer . Those employees present at the picket
line agreed to Garcia 's proposal.
2. Garcia's meeting with Jack and Howard Hall
Garcia asked the employee committee to accompany
him and they drove to the office area . The four men
exited the car and went to a window which looked as if
it was for shipping and receiving . Garcia asked the
woman sitting by the window if he could see Jack Hall
and gave her his card . The card identified him as a rep-
resentative of the Union. The woman, who was not iden-
tified, left her seat and when she returned informed
Garcia that "Mr. Hall would only see you, he would not
speak to the workers."
1188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
What occurred during this meeting is the subject of
greatly disparate testimony . Garcia estimated in his testi-
mony that the meeting occurred around 12 :30 p.m.,
sometime after lunch . In his affidavit he stated the meet-
ing occurred at 1:30 p.m. Garcia testified that when he
entered the room Jack Hall was standing and another
gentleman , who was not introduced and later was identi-
fied as Howard Hall, remained seated . Garcia introduced
himself as an agent of the Union and said he represented
a majority of the employees. Jack Hall replied:
"they don't need a union , they have a committee."
And I said-I had the cards in my pocket at the
time, and I said I have obtained authorization cards
to act as their representative , and that-he [Jack] in-
dicated that he didn't have to talk to me .. .
doesn't that have to go through the Labor Board,
and I said Jack , the Labor Board could take some
time . We could bring these people back to work
and allow the Labor Board and the union to iron
out the problems at a later date.
Jack said to me they-I believe he said they're-
they-I said "you 've terminated all the employees
and we're making an unconditional offer to return
to work at this point." And he says-he smiled at
me and he says "I don 't like to use the word termi-
nated , I like to use the word permanently replaced."
And then . . . he said they're big boys and they
know what they're doing . So then I-I said to him
again, Jack,-I believe I told him we could still
save your operation if "you bring all the people
back to work and allow the problems to be ironed
out with the Labor Board." He said "I don't have
to talk to you," that they're big boys-or something
to that effect, and they knew what they were doing.
Jack Hall said his secretary buzzed him and said a
union representative named Jessie Garcia was there to
see him . He asked his brother if he knew the man and
Howard replied no. Jack Hall , after unsuccessfully at-
tempting to reach his attorney for advice, decided to see
him. The meeting was around noon or after . According
to Jack Hall:
The next thing I know , Mr. Garcia is at my
office door, and he came in, and when he came in,
he handed me a card that had his name on it. . . . I
looked at it, and read . . . I don 't really know what
it said . And I looked at the card , and I said, "So?"
and he said-oh, and then , I said, "Well, so, who
are you?" And he said, "Well, look at the card."
And I said, "Well, I've looked at the card. So, who
are you?" And he said , "Well, I understand that
you've got a problem." And I said, "Well, every-
body has problems." And he said, "Well, you know,
you've got a labor problem out there." And I said,
"So." And he said , "Well, I think that-I think I
can help get those guys back in here for you,
maybe." And I says, "Who are you? What do you
want? Just who in the heck are you?" And he said,
"Well, you've got my-you've got my card there.
I can help you with your problem. I can help
you get those guys back in here." I said, "I don't
know how you're going to help me." And he said,
"Well, we can go through that later." I said, "What
the heck do you mean, 'go through it later.' Just
what are you talking about here?" And he said,
"Well, I'm saying that I can help you get those
guys back in here for you." And I said, "Well, I
don't know how you're going to do that. . . . Be-
sides, I particularly don't know how you're going
to get the 3rd and 1st shift[s] in here, because those
guys have been replaced. . . . Now, if you can get
the 2nd shift in here, there's the door. Go ahead. If
you want to do something, get the 2nd shift in here.
... Other than that, I have nothing else to say to
you.28
Respondent urges that their witnesses ' vastly different
versions of this meeting be credited contending that in-
consistencies between Garcia 's testimony and his affida-
vit discredit him as a witness . Jack Hall also had state-
ments in his affidavit which significantly differed from
his testimony and his testimony also contained pertinent
facts not included in his testimony . For example, there
was no mention in his affidavit that he offered to have
the second shift return to work before or at 4 p.m. or
that Garcia indicated that the proposition was for all of
the employees to return or none would; thereby abrogat-
ing any possible unconditional aspects of any offer. A
similar absence of this claim is noted in the letter Re-
spondent 's attorney sent to Mitchell on or about January
21.
Howard Hall 's testimony shifted and, based on his de-
meanor, which I find did not appear to be forthright and
candid , I do not credit the Halls' version of this meeting.
Although demeanor alone would result in this conclu-
sion , I also considered inherent probabilities . For exam-
ple, it is highly unlikely that Garcia was told by his su-
pervisor to get signed authorization cards yet not allude
to them in this meeting.
Also unlikely is the claim that he ignored the instruc-
tion by his supervisor , Mitchell, to make an uncondition-
al offer to return to work on behalf of the employees,
which he would have to ignore despite the fact that he
told the employees he would make such an offer and all
employees present assented to this course of action.
Garcia has at least 10 years' experience as a union repre-
sentative , and I find improbable that he would not know
the import and significance of his charge to present the
unconditional offer on behalf of the employees, particu-
larly after he gathered 27 signed union authorization
cards . I also find Garcia's demeanor , standing alone, was
sufficient to require the crediting of his testimony. He
28 Howard Hall testified the meeting occurred between 2 and 2 30 p.m
and lasted 2 minutes Howard Hall testified that Garcia offered to "put
them back to work for you" but claims he never said how he would ac-
complish this feat Like his brother , Howard Hall claims Jack told Garcia
that the first and third shifts had been "permanently replaced" but to see
if he could get the second shift to report before 4 p in. Garcia reputedly
replied; "I don't know if I can get one shift to come back if they don't all
come back." The reported reply of Jack Hall was that he did not have
anything further to talk about with Garcia and thus ended the meeting
LISTON ALUMINUM 1189
appeared to be trying to recall events accurately and tes-
tify fully.
In corroborated testimony , Garcia then went to the
car and related to the committee members that Jack Hall
failed to accept the employee 's unconditional offer to
return to work; and, he opined that the nature of the
strike may have thus been changed to an unfair labor
practice strike.
Garcia also told the committee members of Jack Hall's
claim that all the strikers had been permanently replaced.
According to Reynoso , who I find a credible witness
based on demeanor , Garcia said:
Jack had told him that we had no more chance be-
cause he had already talked to us and that we did
not need a representative because we had our own
representatives and that, therefore , we were already
... replaced . All of us. And that we no longer had
anything else to do. We had no more work there.
Gerardo testified similarly; he said Garcia told us he
had talked to Mr . Hall about for us to go back to
work. Mr. Garcia told us he asked Mr . Hall to give
us another chance, roll back the clock and put us
back to work. And then the union can take care of
the other problems later . And Mr . Hall . . . told
Mr. Garcia no, we were replaced already . That we
were big boys and we knew what we were doing
and that 's it. Replaced.
They then returned to the picket line and Garcia re-
peated to the approximate 20 employees present what he
told Tony Castillo and the employee committee mem-
bers . Garcia then went to a telephone to check with
Mitchell because he thought the strike had been convert-
ed from an economic strike to an unfair labor practice
strike.
G. Respondent's January 19 Letters to Employees
I find credible, based on their forthright demeanor, the
employees ' testimony that Respondent , by Craig Hall,
distributed letters to about 20 employees between 5:30
and 6 p .m. The letters were dated January 19, signed by
Jack Hall and individually addressed to each striking em-
ployee. The letters read substantially the same, as fol-
lows:
Since it is now [different times were specified
based on the striking employees assigned shift]29 I-
19-88 and you have not reported for work as dis-
cussed , you will be permanently replaced . [Emphasis
supplied.]
Two letters were sent to each employee, one in Eng-
lish and the other, a Spanish version of the missive.
Discussion
Jack Hall 's letters clearly informed unfair labor prac-
tice strikers that they will be permanently replaced. This
missive, at the very least, is a threat to fire unfair labor
practice strikers . Trumbull Memorial Hospital, 288 NLRB
1429 (1988). I further find , considering the circumstances
surrounding the issuance of the letters, that it reasonably
led the strikers to believe that their unconditional offers
to return to work were not and would not be accepted
and thus, they were discharged . Chromalloy American
Corp., 286 NLRB 868 (1987). As was the case with the
other threats discussed above, I find these unfair labor
practices tended to prolong the strike , thereby convert-
ing it to an unfair labor practice strike . See further the
discussion concerning replacement of the strikers below.
Assuming that the letters did not discharge the strik-
ers, I conclude they were misinformed the recipients, for
the unfair labor practice strikers' rights to immediate re-
instatement upon their unconditional applications were
significantly misstated . Jack Hall's letter "tended to inter-
fere with and impinge upon employee protected activi-
ties, in violation of Section 8(a)(1) of the Act." Id. citing
Leonardo Trucking Lines, 237 NLRB 1221, 1232 (1976);
Fire Alert Co., 207 NLRB 885 (1973).
H. Other Asserted Unconditional Offers to
Return to Work
After Garcia informed Mitchell that Jack Hall would
not accept is representation that the Union represented a
majority of the employees and he was making an uncon-
ditional offer to return to work on their behalf, Mitch-
ell" instructed Garcia, as a means of insuring that the
Employer understood the Union 's position, to have all
the employees go to the plant and have them announce
that they were returning or attempting to return to work
without conditions.
In compliance with his instructions , Garcia had all the
employees meet at the picket site at 7:30 a .m. the follow-
ATTENTION: [Shift]
EMPLOYEE: [Name of employee]
This will confirm that Monday morning I spoke
with your representatives Luis Reynoso, Jose Ger-
ardo and David Castillo, regarding the employee's
[sic] intention to strike our plant over a dispute in
pay. I indicated that all employees were to return to
work to their respective shifts, beginning 12:00
A.M. 1-19-88 . I indicated if they did not report to
work as requested that they would be permanently
replaced.
29 The time specified in the letters for employees assigned to work the
first and third shifts was I p m and for the second shift 4 30 p m Jack
and Craig Hall claimed they distributed the letters to strikers on the
picket line at or about the times stated in the letter For the reasons
stated elsewhere in this decision , I do not credit their testimony. I find
the testimony of Gerardo and Moreno that the first time letters were dis-
tributed was after 5 30 p.m. more believable based on their demeanor. I
note, as found elsewhere , that almost all of the replacement employees
were hired after 1 p .m on January 19, and at least two were hired on
January 20.
30 1 find Mitchell 's testimony credible . His demeanor was direct and
convincing . I note that there were inconsistencies in his statements re-
garding the times described events occurred , however this did not appear
to be the result of lack of candor or an attempt to obfuscate facts Ac-
cordingly , I conclude that his testimony convincingly corroborates the
testimony of Garcia and Tony Castillo
1190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing day, Wednesday, January 20. He also called the au-
thorities to inform them their actions would be peaceful
and suggested police presence . Garcia explained to the
employees , whom Reynoso represented were all present,
that they were going to make another unconditional
offer to return to work. When an officer arrived, the em-
ployees, Garcia, Tony Castillo, and the president of
Tony Castillo's local marched up the driveway to the
office area of the plant . Again, there is disagreement
about what occurred at this time.
As the employees approached the office area, Jack and
Craig Hall were viewing the procession from a position
outside their offices, near the parking area . Garcia in-
formed Jack Hall that the employees came to make an
unconditional offer to return to work. Jack Hall said he
did not want to speak with Garcia, but would talk to the
committee . Jose Gerardo, David Castillo, and Luis
Reynoso then walked over to Jack Hall. According to
Gerardo, the committee told Jack Hall they were ready
to return to work. In response , Jack Hall told them, ac-
cording to Reynoso, "Yesterday I told you that if you-
that if each one would not return at their own time to go
to work, you were going to be [re]placed. And, there-
fore, right now, you are replaced and you no longer
have any work here with me ." Garcia testified that Ger-
ardo twice informed Jack Hall the employees are "ready
to work under your conditions."
Again, Jack Hall gave a different version of the event.
He denied Garcia, on behalf of the employees, made an
unconditional offer for their return to work. Instead, he
claims Garcia repeatedly shouted "Put us to work." He
corroborated the testimony that he informed the commit-
tee that all the employees had been permanently replaced
and that he had nothing further to say to them. In his
affidavit, dated January 26, Jack Hall stated:
On Wednesday, January 20, at about 8 :10 or 8:15
a.m., Howard and Craig Hall and myself were
standing outside the office. I noticed a group of em-
ployees, along with other[s] I did not know, walk-
ing up the driveway . . . . Jessie Garcia was with
them. Garcia spoke to me saying that the employees
were ready to return to work. . . . Garcia kept
saying over and over that the employees were
ready to return to work.
After being questioned about the difference between
his affidavit and his testimony , Jack Hall had to be di-
rected to respond to the question . Jack Hall then claimed
he was confused under what conditions they were
coming back to work since they were not satisfied with
the changes in conditions which led to the strike. I note
that these conditions were the same he claimed were just
mere proposals . He admitted the employees did not put
any conditions on their offer to return to work, did not
require the Company meet some condition precedent
before they returned. This failure to clearly explicate the
source of his confusion is indicative of dissimulation and
buttresses my prior finding, based on demeanor, that
Jack Hall is not a credible witness.
After the employees left Respondent 's facility, Mitch-
ell spoke with Garcia and was assured that his instruc-
tions were followed , that the employees went to Jack
Hall "en masse" and made an unconditional offer to
return to work ; that Jack Hall informed them they had
all been replaced and there was no need for any of them
to come back to work. To document the offers to return
to work, Mitchell sent Jack Hall a mailgram which was
delivered to him at 2 p.m., January 20. It read:
This is to serve as confirmation that the workers
at your plant agreed to return to work uncondition-
ally on January 19 and 20 and were denied employ-
ment.
Again , allow this telegram to serve as reoffering
of same.
In response to Mitchell 's mailgram , Respondent's at-
torney, Stephen G . Saleson, wrote a letter dated January
21, informing Mitchell that Respondent repeatedly di-
rected the employees to return to work or they would be
permanently replaced . They had been permanently re-
placed on January 19. Jack Hall met with Garcia as a
courtesy , there was no union representing the Company's
employees and Garcia did not make an unconditional
offer for the employees to return work , nor was such an
offer made on January 20, all that was indicated was
they were ready to go to work . There was no mention
of the employees' right to strike and their placement on a
preferential hiring list until Respondent sent the letter
dated February 10,311 which disavowed Craig Hall's
plant closing and locking the gate statements of January
19.
Discussion
The rights of the striking employees to reinstatement
depends upon whether their activities were concerted
protected activities . It is undisputed Liston's employees
decided to walk out after Respondent determined to
change their terms and conditions of employment. Ac-
cordingly, I find the strike is a bona fide protest over a
change in working conditions, and was for their mutual
aid and protection as guaranteed by Section 7 of the Act.
Hagopian & Sony Inc. v. NLRB, 395 F.2d 947 (6th Cir.
1968). The employees unquestionably communicated
their shared demands to Respondent at the commence-
ment of the first working shift of the week. NLRB v.
City Disposal Systems, 465 U.S. 822, 835 (1984).
As the Court found in NLRB v. Fleetwood Trailer Co.,
389 U.S. 375, 378-379 (1967):
Section 2(3) of the Act . . . provides that an indi-
vidual whose work has ceased as a consequence of
a labor dispute continues to be an employee if he
has not obtained regular and substantially equivalent
employment . If, after conclusion of the strike, the
employer refuses to reinstate striking employees, the
effect is to discourage employees from exercising
their rights to organize and to strike guaranteed by
[Sections] 7 and 13 of the Act. . . . Under [Section]
8(a)(1) and (3) . . . it is an unfair labor practice to
" As counsel for the General Counsel notes in her brief , the charge
had been filed prior to February 10
LISTON ALUMINUM 1191
interfere with the exercise of these rights. Accord-
ingly, unless the employer who refuses to reinstate
strikers can show that his action was due to "legiti-
mate and substantial business justifications," he is
guilty of an unfair labor practice. NLRB v. Great
Dane Trailers, 388 U.S. 26, 34 (1967). The burden of
proving justification is on the employer. Ibid.
In some situations, "legitimate and substantial
business justifications" for refusing to reinstate em-
ployees who engaged in an economic strike have
been recognized. One is when the jobs claimed by
the strikers are occupied by workers hired as per-
manent replacements during the strike in order to
continue operations. NLRB v. Mackay Radio &
Telegraph Co., 304 U.S. 333, 345-346 (1938).... 32
[P]roof of antiunion motivation is unnecessary when
the employer's conduct "could have adversely af-
fected the employee rights to some extent" and
when the employer does not meet his burden of es-
tablishing "that he was motivated by legitimate ob-
jectives." . .. NLRB v. Great Dane Trailers .. .
[supra at 34]. A refusal to reinstate striking employ-
ees, which is involved in this case, is clearly no less
destructive of important employee rights than a re-
fusal to make vacation payments. And because the
employer here has not shown "legitimate and sub-
stantial business justifications," the conduct consti-
tutes an unfair labor practice without reference to
intent. 33
In this proceeding , I also find antiunion motivation
based on Craig Hall's reference to the Union when he
made the threats found violative of Section 8(a)(1) of the
Act as well as the demonstrated false claims at least two
shifts of the striking employees had been replaced in the
morning and early afternoon of January 19. I further find
that the failure to reinstate the striking employees, except
for the one that had been replaced the morning of Janu-
ary 19, after the first unconditional offer to return to
work, had an "adverse effect upon employee rights" for
which the employer here has not shown "legitimate and
substantial business justifications ." There is no convinc-
ing demonstration that the employees failed to make
themselves available and did not desire reinstatement at
all times after Garcia made the unconditional offer to
return to work on their behalf.
Initially, Respondent argues that the Employer has a
right to demand a Board election before it recognizes
and bargains with a union , citing Linden Lumber Div.,
Summer & Co. v. NLRB, 419 U.S. 301 (1974). This argu-
ment is without contradiction , however it has no perti-
nence to the question of whether a union representative
could make an unconditional offer to return to work on
32 There is no claim by Respondent that the strikers ' jobs have been
eliminated The pouring crews ' positions were offered to other striking
employees . Thus, I find that there was no showing of changes in methods
of production or operation eliminating any jobs previously held by the
striking employees
88 Unfair labor practice strikers are usually entitled to reinstatement
even if the employer has hired permanent replacements Mastro Plastics
Corp. v NLRB, 350 U.S. 270, 278 (1956)
behalf of striking employees . As noted in a 'case cited by
Respondent , F. M. Homes, Inc., 235 NLRB 648 (1978):
Contrary to the arguments advanced by Respond-
ent's counsel , there is nothing in the Act that pre-
cludes a minority union representative from acting
as the employees ' agent for the purpose of request-
ing reinstatement . Citing NLRB v. I Posner Inc.,
Posner Distributing Corp., et al., 304 F.2d 773 (C.A.
2, 1962), affirming in relevant part 133 NLRB 1567
(1961).
Respondent admits that there are Board cases where a
"minority" union was permitted to make offers to return
to work on behalf of striking employees , citing Marlene
Industries Corp., 255 NLRB 1446 (1981), enf. denied 712
F.2d 1011 (6th Cir. 1983); F. M. Homes, Inc., supra; and
Hendon & Co., 197 NLRB 813 (1972). However, it
argues, these cases all specifically note that the employer
had previous knowledge the union was acting as the
agent for certain employees . I find that Garcia, based on
his credited testimony , informed Respondent that he was
acting on behalf of the striking employees and he had
signed cards granting this status . Craig Hall's reference
to representation by third party 's at the time of his viola-
tive threat and knowledge of Tony Castillo's interest, as
previously noted , also provide grounds for finding that
Respondent knew that the Union was in fact present and
active.
I further find that Respondent has failed to establish
that such prior knowledge is a condition precedent to
the efficacy of the union representatives actions on
behalf of the striking employees. As held in NLRB v.
Fleetwood Trailer Co., supra at 381: "The right to rein-
statement does not depend upon technicalities relating to
application ." Garcia was not bargaining with Respond-
ent, he was acting on the employees behalf by making
the unconditional offer for the striking employees to
return to work. To hold otherwise would be antithetical
to the requirement that "the right to reinstatement does
not depend upon technicalities." Respondent did not bear
its burden of proving that it had credible reservations
concerning Garcia's ability to speak for the striking em-
ployees . Respondent also failed to convincingly prove
that Garcia did not represent all the striking employees.
As noted in Tile, Terrazzo & Marble Contractors Assn.,
287 NLRB 769, 776 (1987), some judicial approval was
given to a Board conclusion verbal requests to return to
work , including some made by telephone, constituted
valid requests for reinstatement . Albritton Engineering
Corp., 138 NLRB 940 (1962), enfd. as modified 340 F.2d
281 (5th Cir. 1965); Hartmann Luggage Co., 183 NLRB
1246 (1970), enfd. as modified 458 F.2d 178 (6th Cir.
1971). As noted elsewhere , the appearance of the strikers
at the plant constituted an offer to return to work. Sun-
beam Lighting Co., 33 NLRB 1248 (1962). In one deci-
sion , an ambiguous conversation between a striker and a
supervisor was deemed under the circumstances to be an
expression the striker intended to unconditionally return
to work. Colonial Manor Convalescent & Nursing Home,
184 NLRB 693, 696 (1970); recently, the Board held that
a return -to-work offer was unconditional even though it
1192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was coupled with a demand for discharge of the strike
replacements . Hansen Bros. Enterprises , 279 NLRB 741
(1986).
Respondent also claims that Garcia 's offer on behalf of
the striking employees was conditioned upon all of the
strikers being recalled . I find Jack and Howard Hall's
testimony on this point unbelievable based on their de-
meanor. Also, as found herein, the first and third shifts
had not been replaced at the time Garcia made the offer.
Only one employee had been hired at this time.34 Ac-
cordingly , I find that this argument is a post hoc ration-
alization rather than a convincing legal basis for the
Company's refusal to reinstate the strikers . I further find
that resort to this false device of claiming replacement of
the first and third shifts at a time when only one replace-
ment employee had been hired indicative of proscribe
intent, rather than probative of a legitimate and substan-
tial business justification for refusing the offer.
The testimony of the striking employees was un-
equivocal . They testified , without exception , that Garcia
informed them "they were going to offer to go back to
work under Jack Hall 's conditions." See for example the
testimony of Luis Reynoso, whom I have found to be a
careful and truthful witness . That the Garcia offer was
unconditional was evident from his testimony. At the
time of the conversation there was no claim by Jack
and/or Howard Hall that Garcia represented only some
of the strikers and could or did not speak for all of them.
I find that , in view of the clear and unequivocal nature
of Garcia's offer on behalf of all the strikers, they were
not required to make separate and individual requests for
unconditional reinstatement . This conclusion is buttressed
by the conduct of the employees prior to the commence-
ment of the workday on January 20.
The employees reported for work en masse at the
usual time of the morning shift and I find they clearly
manifested their intent to abandon the strike and return
to work "under Jack Hall's conditions." As found above,
they also clearly informed Jack Hall this was their intent.
These actions, like those of Garcia , constituted an uncon-
ditional application for reinstatement . Olin Industries Y.
NLRB, 191 F.2d 613, 616-617 (5th Cir. 1951), enfg. 86
NLRB 203 (1949), rehearing denied 192 F.2d 799, 800,
cert. denied 343 U.S. 919; Sunbeam Lighting Co., 136
NLRB 1248 (1962), enf. denied on other grounds 318
F.2d 661 (7th Cir. 1963). The en masse offer to return to
work obviates any need for the strikers to make individ-
ual requests for unconditional reinstatement . Olin Indus-
tries Y. NLRB, supra.
Similarly, I find Mitchell 's mailgram, which was re-
ceived about 2 p.m. on January 20 clearly and uncondi-
tionally reiterated the offer of the strikers to return to
34 Respondent also averred that Garcia 's testimony was not supported
by Jose Gerardo who testified that , since Jack Hall claimed the day and
night shifts had been replaced , Garcia said he asked Jack Hall to "roll
back the clock " Respondent argues this testimony is probative that Gar-
cia's offer was conditioned upon all the employees returning to work. I
find this argument unpersuasive Gerardo testified that Garcia asked that
the first and third shifts be given another chance since they were the
ones ostensibly replaced This request clearly did not exclude the second
shift which Jack Hall admitted had not yet been replaced at the time of
Garcia 's offer Thus, I find that Gerardo's testimony , when considered in
context , fails to warrant a finding that the offer was conditional
work unconditionally . This mailgram also serves to sup-
port the findings that the offers of January 19 and 20
were made unconditionally. In sum, I conclude that Re-
spondent failed to meet its burden of showing the failure
to accept these offers was due to "legitimate and substan-
tial business justifications," 35 for Respondent failed to
demonstrate by clear and convincing evidence that the
offers were conditional , were not made on behalf of all
the strikers, were justified by changed business oper-
ations, or made by an individual who could not act as
the striking employees ' agent . Soule Glass & Glazing Co.
v. NLRB, 652 F.2d 1055, 1107 (1st Cir. 1981); Garrett
Railroad Car, 275 NLRB 1032, 1035 (1985).
The credited evidence, viewed in context of the events
and inherent probabilities combine to provide abundant
proof that the offers to return to work were uncondition-
al. "There is no persuasive evidence that the strikers of-
fered to come back only as a group ." Containair Systems
Corp., 218 NLRB 956 (1975).
1. Replacement Employees
One of the key issues in this proceeding is when the
replacement employees were hired , Respondent claims,
with two exceptions , that they were all hired on January
19, with more than enough to fill the vacancies on the
first and third shifts by the time Jack and Howard Hall
met with Garcia, and the rest prior to the start of the
third shift at 4 p.m.
Extensive testimony and documentary evidence was
adduced concerning the hiring time and dates of replace-
ment employees . The evidence is at times contradictory.
The evidence is clear that on the morning of January 19,
Respondent was actively engaged in seeking applicants
to replace the striking employees . To determine the time
and date most of these applicants were hired , their testi-
mony will be analyzed, as well as that of Jack , Howard,
and Craig Hall, and their agents.
Jack Hall claims that around 5 p.m. on January 18 he
determined to replace all the striking employees , begin-
ning with the first and third shifts. The following morn-
ing, shortly after 9 a . m., he met with Craig, Howard, and
Debbie Hall and Cyndi Gates and informed them they
were going to run the plant with replacements and that
all applications for the past 6 months had already been
pulled as the start of this hiring process . They were told
to initially replace the first and third shifts . Jack Hall
also advised them they were to adhere strictly to the im-
migration laws.ss
Jack Hall initially testified that a list37 of striking em-
ployees was prepared as an aid in determining if they
had been replaced . Not all the new hires were named on
this list. The new hires who replaced the striking em-
ployees were then named on this list to the left of the
as NLRB v. Great Dane Trailers, 388 U S. at 34
36 Adherence to the immigration laws has particular significance in this
proceeding since Respondent claims it properly refused to offer reinstate-
ment to those striking employees who were on the pouring crew because
they were illegal immigrants , which abrogates its responsibility to offer
them reinstatement . This position will be discussed in greater detail
below
31 This list is 0 C Exh. 3
LISTON ALUMINUM
individuals they replaced. Craig Hall also initially testi-
fied that the list indicated which new hire replaced a
specific employee.38 Craig Hall later disavowed this tes-
timony and claimed the list was merely used as a device
to determine if a sufficient number of new employees
had been hired to replace all the striking employees who
failed to report for their assigned shifts on January 19.
This shifting testimony is indicative of dissimilation. 39
I cannot credit Craig Hall who testified precisely on
June 15 that each replacement was hired to take the
place of a specific striking employee, and had already
forgotten or for other reasons testified differently on July
20. Also, it disputes the testimony of Jack Hall that the
applications of the new hires were counted to determine
if all the strikers had been replaced. On the other hand,
supporting Craig Hall's initial testimony that the new
hires were replacing specific strikers are the notations
placed at the top of most of their applications naming a
specific striker and the particular position the new hire
was assigned.
Another area of conflicting testimony bespeaking dissi-
mulation is Craig Hall's statement that "I was involved
in hiring every person that was hired on the 19th." He
also asserted that he interviewed most of the applicants
prior to hiring them, and all applicants were interviewed
prior to being hired. Howard Hall , on the other hand,
claimed that he hired almost one-third of the replace-
ment employees . Many of the applicants testified they
were hired without an interview . These witnesses, most
of whom were current employees, were more credible
than Respondent's supervisors , based on demeanor and
their status of current employees testifying adversely to
their employer . No explanation was offered which would
lessen the adverse impact occasioned by these dispari-
ties.40
It is undisputed that the first replacement hired was
Roy Wayne Turner, who was working prior to 9 a.m. on
January 19; as reflected by his timecard .4 t All the other
timecards of replacement employees indicate they com-
menced their employment on January 20 or later. Re-
spondent tries to explain this apparent inconsistency by
claiming the timecards are not accurate , that there was
38 Specifically , Craig Hall testified as follows-
Q. By Ms Parke When employees were hired after January 17, a
decision was made or designation was made that each new hire was
to replace a specific striker Is that so?
A. That's correct.
Q Can you tell me .. if that list indicates which new employee
replaced which striker9
A That it does
Q So that Adolpho Romo was hired to replace Arnuifo Aguilar9
A. Arnuifo Aguilar, yes.
Q. And that 's true on down the list9
A. To the best of my knowledge
39 I note that Craig Hall was surly and hostile when he first testified,
which was as an adverse witness . His demeanor did not indicate candor
or a willingness to present the truth.
40 Another unexplained inconsistency is Craig Hall's testimony no one
was hired on January 20 Jack Hall subsequently admitted that he learned
that two employees , Juan Rogero and Roberto Valdez, were hired on
January 20 and instructed that these individuals be immediately dis-
charged . Javier Luevano credibly admitted that he was hired after Janu-
ary 19 as did Miguel Reyes Romo , who appears to have been hired on or
about January 23 Also , in March, a furnace operator was hired, as a
"temporary replacement ," and he later was promoted to foreman.
41 Turner left Respondent's employ on February 2.
1193
great confusion in initiating their operations with the
new hires and a metal spill on January 20 added to the
difficulty of making a smooth initiation of procedures.
Respondent has no other payroll records which clearly
reflect most if not all the employees it claims were hired
on January 19 were paid from that date forward. This
lack of clear payroll records is indicative of Respond-
ent's unsupported claims and adds to their lack of believ-
ability . Further clouding Respondent 's position is the
stipulation it entered that, with minor deviation not de-
tailed:
[T]he payroll records of Respondent reflect that
those employees whose time cards have been re-
ceived in evidence as GC Exhibit 4, were paid by
Respondent only for the hours indicated on those
time cards for the week ending January 24, 1988.
Respondent hired 40 replacement employees. The
Company used acquaintances and new hires to assist in
recruiting applicants as strike replacements . Two of these
recruiters were friends of Jack and Howard Hall, Ismael
and his son Oscar Colomo. They acted as interpreters for
Respondent at various times on January 19 and 20. The
evidence concerning these strike replacements is summa-
rized in appendix B.
The Colomos testified that about 8 or 9 a.m. on Janu-
ary 19 they took eight applicants to Respondent; Juan
Rico, Gregorio Palacio, Victor Vega, Victor Manuel
Lopez, Isidro Alverez Nora, Ramon Moyass, Felix
Ibanez, and Jose Manuel Rodriguez . These applicants are
referred to as the "Colomo group ." I find, based princi-
pally on demeanor, that the statements of the Colomos
are not credible. This conclusion is supported by the
many inconsistencies in their testimony.
The testimony of the Colomos exuded dissimulation.
For example , Oscar Colomo testified that he and his
father went to Liston and his father got blank applica-
tions for the employees to fill out. Oscar assisted each of
the eight applicants in Craig Hall 's office, and Craig Hall
was present next to the desk all this time. Ismael Colomo
said Oscar started filling out the applications outside but
Craig Hall told him to use his office and then stood out-
side the office with him some of this time.
There were no interviews of the applicants either indi-
vidually or as a group according to the Colomos. These
statements against their friends' interests buttress my con-
clusion to not credit Craig Hall's testimony that he inter-
viewed most of the applicants . Both Colomos claimed
that when all eight applications were completed, Craig
Hall asked Ismael Colomo to inform all of them they
were hired. Oscar Colomo then testified that they did
not leave until 1 or 2 p.m. and perhaps as late as 3 p.m.
When again asked when Craig Hall asked his father to
tell the applicants they were hired, he said "[p]robably
an hour after we got there, after I finished-filling out
the applications."42 There was no explanation , if the ap-
42 The "hour" referred to cannot be the amount of time it took Oscar
Colomo to help in filling out the applications, for he estimated it took 10
to 15 minutes to complete each application , and for eight applicants that
Continued
1194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
plicants were hired as soon as they completed filling out
the applications , why they remained at the plant until be-
tween 1 and 3 p.m.
I also note that Oscar Colomo engaged in surmise with
sufficient frequency that he had to be warned to not
guess or assume . For example , he stated his father got
the applications from one of the secretaries , then he ad-
mitted on closer examination that he did not know how
his father got the applications . Another example of the
confused nature of Oscar Colomo 's testimony regards
Ramon Moyass . He testified initially that all the appli-
cants were hired , then said that he did not think Moyass
worked for Liston , he did not know if he was hired, he
thought only seven of the men they brought to the plant
were hired , then said he was not sure if Craig Hall hired
seven or all eight.
Ismael Colomo repeatedly admitted that he did not
clearly recall the events of January 19 and 20 . Ismael
claimed that when he arrived at Liston at 9 or 10 a.m.
there were 8 or 10 other applicants present including Ro-
berto Valdez . Valdez testified he did not get to Respond-
ent's until about noon . This appears to be more accurate
testimony since the Colomo 's admittedly did not leave
until 1 or 2 p .m. or perhaps 3 p.m. This also indicates
that , if the Colomos' testimony that Craig Hall told them
their applicants were hired right after they all finished
filling out the applications was credited , they were not
hired until 1 or 2 p .m.; after Jessie Garcia made the un-
conditional offer to return to work on behalf of the em-
ployees.
Further confusing the time and date of hire of the
Colomo applicants is Ismael Colomo 's testimony that on
January 20, after he brought the "Colomo group" to the
plant a second time , Craig Hall asked them if they
wanted to work at Liston . If they had already been
hired , there appeared to be no reason for this inquiry.
Another basis to discredit Ismael Colomo 's testimony is
its variance with his affidavit given in March wherein he
said: "I took the above employees in one group , just the
one time ." He disavowed his affidavit but did not even
attempt to explain the inconsistency with his testimony
that he and his son took the group in two cars to the
plant on January 19 and again on January 20.
In contradiction to the Colomos' testimony is that of
the "Colomo group" applicants, as detailed in appendix
B. For ease of understanding , some of these contradic-
tions are detailed here . Gregorio Palacio testified that he
filled out his application at about 3 p.m. He initially testi-
fied he was told he was hired the day he applied for
work but after being shown his affidavit admitted his af-
fidavit was true . The affidavit stated that someone called
his residence and told them as a group they were
hired . 43 He learned he was hired 1 or 2 days after he ap-
plied for a job.
would take well over 1 hour Then Oscar Colomo said that Craig Hall
reviewed the applications for 10 to 15 minutes Thus the hour referenced
by Oscar Colomo could not refer the time it took before Craig Hall as-
sertedly asked the Colomos to tell the applicants they were hired.
4J Palacio's affidavit, dated March 15, states:
I first became aware of a job opening on about 4 or 5 days before
January 19, 1988 A friend of mine, Ismael Colomo told about the
job. I put my application in to Liston Aluminum on January 19, 1988
Jose Rodriguez testified that after they finished filling
out the applications they went home . He also testified
that Ismael Colomo did not tell him he was hired on Jan-
uary 19, rather claiming , like Palacio , that they were
called . Victor Vega, on the other hand testified he was
told he could work at Liston before January 19. He also
admitted that Craig Hall asked the whole group on Janu-
ary 20 if they wanted to work for the Company. This
later testimony makes more sense since Jack Hall admit-
ted that it was not until about 5 p. m. on January 18 that
he informed Craig Hall to start preparing to replace the
striking employees . About 8 :30 a.m. on January 19, Jack
Hall met with his managers and told them they were to
proceed to hire strike replacements.
Also, the testimony the applicants were called at their
residences and informed to report on January 20, with-
out being told why, is more consistent and credible.
Thus, I conclude that, at the earliest , the Colomo group
of applicants were informed they were hired well after
Jessie Garcia informed Jack and Howard Hall that the
striking employees were unconditionally offering to
return to work. In fact , inasmuch as many testified they
were asked by Craig Hall after 2 p.m. on January 20 if
they wanted to work for Respondent , it could well be
found that Respondent did not offer employment to the
replacements until after the second and third uncondi-
tional offers to return to work.
This conclusion is buttressed by the testimony of Joe
Guerrero Lopez. Lopez, as indicated in more detail in
appendix B, after handing in his application on January
19 at about noon, with his brother-in-law Leonardo Ro-
driguez,44 they were told by Craig Hall: "[a]s of right
now, I don 't have enough men to start a crew but as
soon as we assemble enough men we'll call you." He
was not told on January 19 that he was hired, a secretary
called him on January 20 at 2 p.m. to inform him to
come to work at 3:30 p.m. the same day.45
Lopez also convincingly testified that on or about Jan-
uary 20, at about 3:30 or 4 p .m., as some replacements
were being given a tour of the plant , he saw Jack Hall
distributing blank application forms to individuals he sub-
sequently noted were coworkers. Also, on January 20 or
21, after he was hired , he was given a W-4 form and told
.. I was interviewed by a man who works for the Company
Nothing was said about the strike or why the company was
looking for workers The person who interviewed me did not tell us
when we would start working but that he would call us Nothing
was said about how much we would be paid I began working on
Wednesday or Thursday, I do not recall the exact date Someone at
the company called my home and several of my companions told us
to report for work. . I was told I was hired on Wednesday or
Thursday , I do not recall the exact date but it was one or two days
after I filled out the application.
44 Leonardo Rodriguez did not appear; his employment with Respond-
ent was terminated on May 10.
4s Lopez was fired by Respondent for fighting He was open and
honest about the reason for his discharge and testified that Respondent
treated him fairly He testified in an open manner, with a convincing de-
meanor There was no hint of dissimilation I find that his demeanor war-
rants crediting his testimony Craig Hall testified he saw Lopez late in
the morning of January 19 and commented Lopez resembled his sister.
Craig Hall did not directly refute Lopez' testimony that he was not told
he was hired until January 20 Craig Hall 's failure to specifically refute
Lopez further adds credibility to Lopez' testimony.
LISTON ALUMINUM
to date it January 19, which he did because he wanted to
keep his job. Further, shortly before a Board agent was
to interview him as part of the investigation of the
charge filed herein , he was called to a meeting with the
rest of his shift prior to commencing work. He observed
Jessie Flores, in Jack Hall's presence , passing out appli-
cations to one or two of the employees and saw them
only sign the forms . He received a photocopy of his ap-
plication as did others attending the meeting.
Flores then said "that the Labor Relations Board
would be coming in and speaking with us and he wanted
to make sure that the date on [sic] Application is the day
that we said we were hired here."46
This testimony is supported by the evidence given by
Miguel Nunez who said he did not fill out his application
until payday . On payday, he and three or four others
filled out their applications after they started working
and they were told to put January 19 as the date the ap-
plication was signed . Nunez quit working after 3 or 4
days because it did not pay enough . He like the others
received $6.50 per hour . Also corroborating this evi-
dence is the testimony of Adolfo Cuevas Romo, which is
detailed in appendix B, wherein he asserts convincingly,
and without contradiction , that Jessie Flores told him he
should tell the Board agent that he applied for work on
January 19 and was hired that day. Based on this cred-
ited evidence , I find Respondent knew employees were
hired after unconditional offers to return to work were
made on behalf of its striking employees and tried to
hide that it continued to hire replacements for these em-
ployees.
This conclusion is supported by the tacit admission
contained in Respondent 's letters distributed to the strik-
ers about 5:30 p.m. on January 19. The letter stated,
"You will be permanently replaced ." Inasmuch as Jack
Hall admitted the letter was prepared in the afternoon of
January 19, the letter clearly evinces the striking em-
ployees had not been replaced at the time of the first un-
conditional offer to return to work; rather, Respondent
merely reiterated its intention of replacing the strikers in
the future.
In sum , I find , based on the credited evidence as sum-
marized in appendix B, that the only replacement em-
ployee hired by Respondent before 1 p.m. on January 19
was Roy Wayne Turner. Therefore , only one replace-
ment employee had been hired before Jessie Garcia made
an unconditional offer to return to work on behalf of the
striking employees . In fact , the credited evidence of the
replacement employees indicates many were informed by
telephonic messages to report to Liston on January 20
without clear indications they were hired. Many of these
replacement employees testified they were first told or
given the impression47 they were hired by Craig Hall
46 As noted earlier , Flores, an admitted supervisor , did not appear and
testify His absence was unexplained Jack Hall admittedly did not speak
Spanish , he relied on Flores, and others , to act as his interpreter Thus,
there is no convincing refutation of this testimony and an adverse infer-
ence is warranted
44 See for example the precis of the testimony of Rafael Cabrera in ap-
pendix B This testimony was convincingly corroborated by Javier Lue-
vano, Miguel Nunez , and Gregono Palacto Ramirez , among others See
also the summary of the testimony of Jose Rodriguez and Victor Vega in
appendix B.
1195
the afternoon of January 20 or later, which was clearly
subsequent to the striking employees' unconditional offer
to return to work about 8 a.m. and Mitchell 's telegram
delivered about 2 p. m. that day.48
Those replacement employees whose testimony I find
indicates they were hired after the striking employees
unconditionally requested reinstatement en masse on Jan-
uary 20 were: the Colomo group, including Isidora Nora
Alvares, Felix Espinosa Ibanez, Victor Lopez, Juan Rico
Martinez , Gregorio Palacio Rameriz , Jose Manuel Rodri-
guez, and Victor Vega; Rafael Andrade Cabrera, Esta-
ban Hernandez , Joe Guerrero Lopez, Manuel Magana,
Miguel Nunez, Leonardo Rodriguez , Juan Rogero,
Adolpho Cuevas Romo, and Roberto Valdez. Respond-
ent failed to demonstrate with credible evidence that
these replacement employees were hired before the strik-
ers requested reinstatement at about 8 a.m. on January
20.
Similarly, Respondent failed to convincingly demon-
strate that some of these replacement employees were
hired prior to receipt of the Mitchell mailgram on Janu-
ary 20, including : Rafael Andrade Cabrera, Joe Guerrero
Lopez, Manuel Magana , Ramon Moyass, Miguel Nunez,
Leonardo Rodriguez, and Adolpho Cuevas Romo. I also
include in this group those replacement employees for
whom there was no credible evidence adduced, as noted
above, which are: Alfredo Blancas, Gary Mabery,
Marcus Kim Marshall , Cesar Meza, Don Murray, Cosine
Para, Jaime Ramirez, Pedro Rodriguez, Albert Sandoval,
Damon Tanaka, Gerald Woodard, and Wes Woodard.
1. Assignment of replacement employees
There was no testimony that the replacement employ-
ees were told that they were permanent replacements for
the strikers. While they were initially designated as hired
for certain positions , Craig Hall readily admitted that
they were hired on a trial basis ; for that reason they
were all given the same wage rate of $6.60 an hour.
Craig Hall testified that he assigned the replacement
employees to one of two 6-hour shifts . The assignments
were primarily based on the individual 's home address,
to facilitate carpooling . Even though there was a metal
spill on the afternoon of January 20, which required ex-
tensive cleanup , he claims these replacement employees
worked only 6-hour shifts the first 2 or 3 weeks of their
employment to facilitate training them to perform poten-
tially dangerous jobs.49
When Craig Hall testified the second time, he initially
said he made job assignments in a "fill mode ." He de-
fined the term as making an assignment based principally
48 As noted in detail in appendix B, there are also a number of employ-
ees for whom there is no persuasive testimony , if any, concerning the
date these replacements were hired. Included in this group are Alfredo
Blancas , Gary Mabery , Marcus Kim Marshall , Cesar Meza , Don Murray,
Cosme Para , Jaime Ramirez , Pedro Rodriguez , Albert Sandoval, Damon
Tanaka , Gerald Woodward , and Wes Woodward
49 Craig Hall also testified that supervisors and skilled employees
worked 12 to 13 hours on January 20 to clean up the metal spill There
were new employees that worked more than a 6-hour shift during the
first 2 or 3 weeks of their employment as replacements for strikers. For
example , the timecard for Estaban Hernandez indicates he clocked in on
January 20 at 8 a. m and worked until 8 p.m
1196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on age and physique and then determined if the employ-
ee could fill the position. For example, he would chose
an elderly man for the dryer position since that job re-
quired patience and a young healthy man that could tol-
erate heat was given the position of furnace operator. If
they could not do the job, they would be moved to an-
other position . He continued operating in this manner
even after they instituted three 8-hour shifts . He could
not recall when he considered the replacement employ-
ees' assignments permanent , but he believes it was before
June.
As found above, the notations on the top of the re-
placements employment applications clearly demon-
strates that they were hired to fill the job of a particular
striking employee . Respondent , through the shifting testi-
mony of Craig Hall , tried during his second stint as a
witness to claim that the notations were merely a means
of keeping count if all the strikers had been replaced. He
did not explain why a simple numbering system would
not suffice , no less why the notations also made refer-
ence to specific jobs, such as furnace operator , dryer op-
erator, yard man, etc . Further, more replacements were
hired than striking employees, therefore, there did not
appear to be a need to keep such an accurate account.so
He then stated that some of the employees were as-
signed to clean up the metal spill on January 21. Subse-
quently, he claimed that most of the assignments were
made by foremen and other supervisors . He also de-
clared in subsequent testimony that he made only a few
assignments ; that it was a series of joint judgments made
with the supervisors under him. This shifting testimony
further impairs his credibility.
In sum , I credit the testimony of the replacement em-
ployees, as discussed in appendix B attached hereto, that
most were hired after Jessie Garcia made an uncondi-
tional offer to return to work on behalf of the striking
employees early in the afternoon of January 19. I also
find that their assignments to particular positions were
not permanent , if an employee failed to meet the require-
ments of a particular position, they were shifted to an-
other.
I conclude , based on the credited evidence, although
replacement employees were initially hired for particular
positions , permanent assignments of replacement employ-
ees were not finalized until at least several weeks after
they were hired . There was no credible testimony setting
when such permanent assignments were made for the in-
dividual replacement employees . Craig Hall estimated
that it was a 90-day trial period when he moved employ-
ees from one classification to another . Jack Hall testified
he also trained employees and moved them from one job
to another. Respondent admitted that in the past they
kept records of when an employee moved from one job
classification to another , but Liston did not maintain
50 The testimony of Debbie Corbet that the notations were random
matchings of replacement employees as substitutes for striking employees
suffers from the same inadequacies as the testimony of Craig Hall There
appeared no basis to denote the position no less the name of the striking
employee on the application if the applicant was not hired to fill a par-
ticular position . This testimony is inherently incredible . Additionally.
Corbet's demeanor was not credible , she did not appear to be candid and
forthright when testifying
such records for the replacement employees , ostensibly
because they were all hired at the same rate of pay.
The parties stipulated that the following replacement
employees are no longer working for Respondent:
Marcus Ken Marshall , Ramon Moyass , Cosme Para, Al-
fredo Blancas, Isidora Alvares Nora, Rafael Cabrera, Es-
taban Hernandez , Jose Lopez, Jaime Ramirez, Albert
Sandoval , Juan Silvestre , Damon Tanaka , Roy Wayne
Turner, and Gerald Woodward. There are other replace-
ment employees , based on company records, who were
also denominated as terminated employees , as detailed in
appendix B. For example , these records indicate that
Wes Woodard terminated his employment during the
week ending March 27.
The parties also stated that the status of replacement
employees Roberto Valdez, Felix Ibanez, Rafael Orozco,
Adolfo Romo, and Victor Vega was questionable. Based
on the credited testimony of employees , as applicable, I
find Roberto Valdez was an employee at the time of the
instant trial, Ibanez terminated his employment with the
Company on April 19, Orozco terminated his employ-
ment with the Company on April 28, Adolpho Romo
terminated his employment on May 23, and Victor Vega
was still employed by Respondent at the time of this
trial.
2. The pouring crew
Prior to the strike, Respondent had employees perma-
nently assigned to positions on the pouring crew. These
employees were Rafael Compos, Alfredo Cervantes, An-
tonio Granados , and Felix Nava . These employees went
on strike on January 17. Maximiliano Madrigal also testi-
fied without refutation that one of his duties was to
"pour things."
The parties stipulated that they were not put on a
preferential hiring list nor were they named on the Ex-
celsior list which was utilized in the election conducted
in Case 21-RC-18115.
Maximiliano Madrigal was hired November 4, 1986, at
a rate of pay which Craig Hall admitted indicated he
was on the pouring crew . 51 This admission against inter-
est cojoined with Madrigal 's testimony lead me to con-
clude that Madrigal was on the pouring crew . According
to Jack Hall 's undisputed testimony , prior to the strike,
the pouring crew was paid in cash . He first learned of
this practice around January 1 from Cyndi Gates who
told him it had something to do with immigration laws.
Jack Hall described the practice as follows:
She [Gates] said "Hey." She says , "Craig has been
paying this pouring crew cash ." And it was also
said , that at one point in time, that this pouring
crew had the names , the way I understand it, of
some of the old employees , or something. And I
asked , "Why in the world that we got into a situa-
tion-how can we do things like this?" And she
51 Jack Hall testified Maximiliano Madrigal was not a permanent em-
ployee and was not a member of the pouring crew , he merely worked a
couple of days doing occasional cleanup work . Respondent's records
refute this claim and clearly demonstrate the lack of reliability of Jack
Hall's testimony.
LISTON ALUMINUM
said, Well, it s all to do with the immigration laws
You know that we had a meeting and you said that
after a certain date that we could not have
anyone here that did not comply with the new im
migration laws and you know that we have been
months here, trying to get every one legal to
comply with those laws This pouring crew
people the way I understand it either didn t want
to comply or they couldn t comply [S]he said
back some time ago, I told Craig that it was
dust too confusing for these people using other
names we re going to have to use their names
I guess Craig said Okay but we still got to
continue to pay them cash because I don t want the
Immigration coming in here and finding that we
have people working here that don t comply We re
going to get ourselves into a lot of trouble
[Jack Hall said] we can t have anybody working
here that doesn t comply and we can t be paying
these people cash and I want it stopped I want it
stopped right away
It is unquestioned the same pouring crew was still
working at the commencement of the strike they were
not replaced before the strike There was no evidence
adduced supporting the claim that these employees were
not legal residents of the United States or to otherwise
support Jack Hall s claim that they should not have been
recalled or offered reinstatement
It is uncontroverted that the members of the pouring
crew were never recalled or offered reinstatement that
other striking employees were offered positions on the
pouring crew after January 19 Respondent claims that
right after the strike there were no replacements hired
for the pouring crew They tried to have other employ
ees perform the functions of the pouring crew as needed
but this system did not work, so Respondent determined
in May to hire five individuals to perform this work as
the new pouring crew
There was no evidence presented concerning the
status of the employees on the pouring crew under the
pertinent immigration laws Counsel for the General
Counsel argues this question is best left to the compli
ance stage of these proceedings There was no evidence
adduced in this proceeding concerning the lawful entitle
ment of the members of the pouring crew to be present
and employed in the United States Sure Tan Inc v
NLRB, 467 U S 883 902-903 (1984) See Caamano
Bros Inc 275 NLRB 205 fn' 1 (1986) Felbro Inc 274
NLRB 1268 1269 (1985) 52 Inasmuch as the reinstate
52 In Fclbro Inc 291 NLRB 393 (1988) the Board held as the law of
the case consistent with the court opinion in Ladies Garment Workers
Local 512 v NLRB 795 F 2d 705 709 (9th Cir 1986) since all the discs
minatees were presently in the United States working for Felbro there
was no need to condition payment of backpay upon proof of each dis
cnmmated workers legal status in the United States is inconsistent with
both the NLRA and the immigration laws Since I am constrained to
follow Board law I have deferred ruling on the entitlement of the pour
mg crew to backpay and reinstatement until the compliance stage of this
proceeding This conclusion meets the parties stipulation seeking such re
ferral See also NLRB v Ashkenazy Property Management 817 F 2d 74
(9th Cir 1987)
1197
ment and backpay remedies are conditional upon a deter
mination of the employees status as lawful residents of
the United States and may even be available even if the
employee has been adjudicated to be an undocumented
alien I will defer ruling upon the propriety of these rem
edies to the compliance stage of these proceedings See
Patel v Quality Inn South 846 F 2d 700 (11th Cir 1988)
3 Discussion
The Charging Party and the General Counsel correct
ly argue it is an unfair labor practice for an employer to
refuse to reinstate strikers following an unconditional
offer for them to return to work prior to their jobs being
filled by permanent replacements NLRB v Fleetwood
Trailer Corp 389 U S 375 (1967) NLRB v Great Dane
Trailers supra 388 US 26 (1967) Since I have found
that Respondent has not met its burden of proving that
more than one replacement had been hired at the time of
the strikers first unconditional offer to return to work
the strikers were entitled to immediate reinstatement Re
spondent s suspicions the members of the pouring crew
were illegal aliens does not provide a basis for abrogat
mg their Latdlaw rights
The General Counsel and Charging Party also argue
that the strike replacements were not permanent employ
ees until at least several weeks after January 19 I find
this argument unpersuasive The striker replacement ap
plicants obtain the status of striker replacement
upon their acceptance of offers of permanent employ
ment Home Insulation Service 255 NLRB 311, 312 fn 9
(1981) As otherwise explained
[I]f the employer makes a commitment to the apple
cant for the strikers job [the Board] will normally
regard that commitment as a legitimate replacement
even though the striker requests reinstatement
before the replacement actually begins work
H & F Binch Co 188 NLRB 720 723 (1971)
What constitutes a real commitment will vary with
the circumstances of each situation Ibid When
the employees were telephoned and told to report to the
plant and informed at the plant they were hired, there
were no conditions precedent they had to fulfill before
they were deemed employees The probationary nature
of their employment does not render their positions not
permanent As the Court held in Belknap Inc v Hale
463 U S 491 504 fn 8 (1983)
That the offer and promise of permanent employ
r ment are conditional does not render the hiring any
less permanent if conditions do not come to pass
All hirings are to some extent conditional
The replacement employees were employed on the
basis that they had to demonstrate their ability to per
form the job akin to probationary employment periods
Imposition of probationary periods does not render their
employment temporary rather they become permanent
employees, ab initio upon completion of their proba
tionary period Kansas Milling Co 97 NLRB 219, 226
(1951)
1198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
If the replacements had been hired before the uncondi
tional offers to return to work, they would have been
permanent replacements for there was no demonstration
that the Company s offers were less than a real commit
ment of the nature required by the Board However in
this case I have found that only Roy Wayne Turner had
been hired before the strikers first unconditional offer to
return to work Thus, the hiring of replacement employ
ees antedated the unconditional offers to return to work
and is not a substantial and legitimate business justifica
tion which is a defense to a charge of unfair labor
practices under Section 8(a)(3) NLRB v Fleetwood Trail
er Co supra at 378-379
The Respondent failed to convincingly demonstrate
that the strikers positions were occupied by permanent
replacements at the time of the first unconditional offer
to return to work Turner, the only replacement hired at
the time terminated his employment 11 days later and
was not shown to have taken a particular strikers posi
tion at the time of the unconditional offers to return to
work Hansen Bros Enterprises supra 279 NLRB 741
Denver Hilton Hotel 272 NLRB 488 491 (1984)
Having found the strikers had not been permanently
replaced at the time of the first unconditional offer to
return to work I reject Respondents claim that it did
not have an obligation to reinstate all the strikers upon
Garcia s unconditional offer on their behalf about 1 p in ,
January 19 Its failure to immediately reinstate the strik
ers on January 19 violated Section 8(a)(3) and (1) of the
Act 53 Hansen Bros Enterprises ibid
I have previously found the strike had been converted
to an unfair labor practice strike by the violative threats
made by Respondent Craig and Jack Hall on January 18
and 19 If the strike had not been converted at the time
of the threats 54 the strike would have been converted to
an unfair labor practice strike upon Respondents unlaw
ful refusal to immediately reinstate the strikers upon their
unconditional request for reinstatement when only one
strike replacement had been hired Limpert Bros Inc
276 NLRB 364 (1985)
As argued by the General Counsel Respondents re
fusal to reinstate the lawfully striking employees on Jan
uary 19, after the first unconditional offer to return to
work and before all but perhaps one had been replaced,
was unlawful If Respondent accepted the unconditional
offer to return to work the strike would have ended on
53 As noted above although it is unnecessary under the holdings in
Great Dane Trailers supra and Radio Officers Union v NLRB supra to
find antiunion animus in this case such proof of animus is here present
Wright Tool Co 282 NLRB 1398 (1987)
54 As the Charging Party notes an economic strike at inception may
be converted to an unfair labor practice strike by the employers commis
Sion of an unfair labor practice during the strike NLRB v Charles D
Bonanno Linen Service 782 F 2d 7 (1st Cir 1987) Wilder Construction
276 NLRB 977 (1985) Unfair labor practices which are mere statements
made to the strikers by their employer that they are replaced have been
found sufficient to convert an economic strike into an unfair labor prat
tice strike NLRB v International Van Lines 409 U S 48 (1972) NLRB v
Laredo Coca Cola Bottling Co 613 F 2d 1338 (5th Cir 1980)
1 have found above these threats may be considered contributing
causes to the prolongation of the strike Assuming arguendo that they
were not then Respondents failure to accept the first unconditional offer
to return to work made on the strikers behalf on January 19 about I
p in when only one replacement was hired clearly prolonged the strike
and converted it into an unfair labor strike
January 19 thus Respondents unlawful action prolonged
the strike thereby converting the strike from an econom
is to an unfair labor practice strike NLRB v Great Dane
Trailers, supra, 388 U S 26 34 (1966) Whisper Soft Mills
267 NLRB 813 816 (1983) See also Pittsburgh & New
England Trucking Co 238 NLRB 1706 (1978) W C
McQuaide Inc, 237 NLRB 177 (1977) and Robbins Co
233 NLRB 549 (1977)
Thus when the strikers made their second and third
unconditional offers to return to work on January 20, it
was as unfair labor practice strikers holding all the
rights attendant to that status As unfair labor practice
strikers they were entitled to immediate reinstatement
when these offers to return to work were made As a
general rule the Employer has a duty to reinstate all
unfair labor practice strikers discharging if necessary,
replacements hired during the strike after it was convert
ed to an unfair labor practice strike NLRB v Reming
ton Rand, 130 F 2d 919 (2d Cir 1942) NLRB v Mackay
Radio & Telegraph Co, supra 304 US 333 and NLRB
v Fleetwood Trailer Co supra, 389 U S 373 As the Gen
era] Counsel notes, the replacements hired by Liston
after the January 19 unconditional offer to return to
work were either temporary replacements or replace
ments for unfair labor practice strikers
The refusal to accept the unconditional offer of unfair
labor practice strikers to return to work is tantamount to
an unlawful discharge in violation of Section 8(a)(3) and
(1) of the Act As found above, these discharges were
merely the implementation of Respondents prior threats
the employees were informed they did not work here
anymore on January 18 and plant gates would be
closed before they would be permitted to return to
work Further, Jack Hall told Jesse Garcia on January
19, when he made the unconditional offer to return to
work on behalf of the strikers he did not like to use the
word terminated I like to use the word permanently
replaced
This statement was made at a time when only one re
placement employee had been hired and evince an intent
to not rehire the strikers These statements, combined
with Respondent s patent disingenuousness detailed
above 55 clearly demonstrate proscribed motive and sup
port my finding that Respondent discharged the strikers
in violation of Section 8(a)(3) and (1) of the Act NLRB
v Washington Aluminum Co 370 U S 9 (1962) Thus as
of 2 p in, January 19 the strike against Respondent was
converted into an unfair labor practice strike Windham
Community Memorial Hospital 230 NLRB 1070 1074
(1977) Pennco Inc, 242 NLRB 467, 469 (1979) The
unfair labor practice strikers are entitled to reinstatement
upon their unconditional offer to return to work Mastro
Plastics Corp v NLRB 350 U S 270, 278 (1956) NLRB
v Windham Community Memorial Hospital 577 F 2d 805
814 (2d Cir t 1978) NLRB v Fitzgerald Mills Corp 313
ss As found above Respondent had strike replacements fill out appli
cations after January 19 soliciting to state they applied for work on Janu
ary 19 regardless of whether they did or not hide the fact that it em
ployed suspected illegal immigrants paying them cash to prevent dtscov
ery and Jack Hall admitted contrary to Craig Hall s claims that at least
two employees were hired on January 20 and one in February
_LISTON ALUMINUM
F.2d 260, 269 (2d Cir. 1962), cert. denied 375 U.S. 834
(1963). The employees were entitled to reinstatement
upon their unconditional offer to return to work made
about 8 a . m., January 20. A.P. A. Warehouses , 291 NLRB
627 (1988); Facet Enterprises, 290 NLRB 152 ( 1988).
J. Recall of Employees
Respondent did not establish a preferential hiring list
until after January 28, which was subsequent to Jack
Hall's first meeting with a Board agent on January 26.
As noted above, the pouring crew was never placed on
the preferential hiring list and never offered recall. Let-
ters offering reinstatement had been sent to striking em-
ployees as follows:
Gilberto Cervantes February 1
Alfredo Macias February 4
Adan Reyes March 10
Pedro Madrigal March 10
Miguel Madrigal March 24
Rigo Reyes March 31
Ygnacio Hernandez March 31
Miguel Moreno April 14
Arnuifo Aguilar May 16
Teofilio Placencia May 27
All these employees have accepted employment and
were working for Respondent at the time of trial. It is
also undisputed that all the striking employees except for
the pouring crew received recall offers from Respond-
ent.
On February 1, Respondent hired Manuel Magana as a
"temporary replacement." Magana was an experienced
furnace operator , which Respondent required at the time
and did not want to wait until a striking employee deter-
mined if he wanted to accept an offer of reinstatement.
Respondent gave Magana a letter , which provided:
You are being hired as a temporary replacement
during our process of offering replacements to strik-
ing employees . If the striking employees do not
accept offers of reinstatement , you may be consid-
ered for regular employment.
Craig Hall admitted Magana worked as a furnace opera-
tor for 40 to 60 days and then he was promoted to fore-
man. Since only one reinstatement letter had been sent at
the time Magana was hired, I conclude that Respondent
has failed to clearly explain why other furnace operators
who struck, in addition to Cervantes, had not been of-
fered reinstatement prior to or on February 1. There was
an admitted need for their services.
Respondent failed to present any details demonstrating
an emergency existed requiring action with alacrity and
justifying hiring a temporary replacement when there
were unfair labor practice strikers who unconditionally
offered to return to work in January . Respondent's
action in this instance further demonstrates its disingen-
uousness and intent to violate Section 8(a)(3) and (1) of
the Act. This hiring constituted an independent violation
of Section 8(a)(3) and (1) of the Act, and further demon-
strates Respondent 's animus . Trading Port, Inc., 219
NLRB 298 (1975).
1199
K. Suspension and Discharge of Jose Cervantes
and Luis Madrigal
The parties stipulated that Respondent never filed a
charge with the Board alleging strike misconduct or
picket line misconduct . They also stipulated that no in-
junction was sought concerning picket line misconduct.
Two employees were discharged for misconduct, Jose
Cervantes and Luis Madrigal . Their discharges were the
result of an allegation by Jose Manzo, a pre-January 19
employee who did not join the strike , that Cervantes and
Madrigal obstructed his vehicle when he was coming to
work on February 11 and engaged in a vehicle chase
when he left work on February 12. The circumstances
surrounding these alleged incidents were the subject of
widely disparate testimony.
According to Jack Hall , he first heard of the incident
when Manzo asked to speak to him . Jack Hall's daugh-
ter, Barbara Escalante translated . 56 Jack Hall understood
that as Manzo neared the plant about 11 to 11:30 p.m. on
February 11, a blue van blocked his progress at a stop
sign . He waited several minutes and then attempted to
go around the van. When he attempted to pass the van,
it maneuvered to continue blocking his progress. These
blocking maneuvers continued until Pete Escalante Jr.
was seen to approach the area, and then the van moved,
proceeding to the area where the strikers parked their
vehicles across the road from the entrance to the plant.
Manzo then went into the plant and told Pete Escalante
Jr., his supervisor , of the incident. Pete Escalante pur-
portedly told him, "Well, don't worry about it because
they're probably joking around with you, or whatever."
Manzo then asserted that when he left the plant the
following morning the same blue van, occupied by Jose
Cervantes and Luis Madrigal , followed him and started
blowing its horn at him and turning its lights on and off,
trying to get him to stop. The blue van , he claimed, tail-
gated at speeds up to 70 or 75 miles an hour and then
would pull up next to his vehicle and Madrigal and Cer-
vantes would yell and point at him trying to get him to
stop . At one point in this pursuit , Manzo almost hit an-
other vehicle trying to avoid the van.
The high speed chase, Jack Hall claimed , continued
from one freeway to another until Manzo exited at
"McKinley," and then "whipped into the Shell Station"
where Mango ran to a phone and the van pulled past.
Manzo claimed that he did not have problems with these
employees in the past , but also told Jack Hall "... that
they, and others, had made bodily harm threats to him."
After further discussion , Jack Hall decided to call the
sheriff's department . An officer allegedly arrived and
took a statement . No such statement was placed in evi-
dence. Jack Hall said he requested a copy, but never re-
ceived one. There was no evidence that a copy was un-
obtainable . Respondent then suspended Madrigal and
Cervantes. Respondent also sent them an undated
letter.57
56 Barbara Escalante testified , but was not questioned about the Manzo
incidents . I find this failure a significant deficiency in Respondent 's posi-
tion that these discharges were based on a good -faith belief that they
committed serious misconduct
57 The letter stated-
Continued
1200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Jack Hall then interviewed Cervantes and Madrigal
who claimed that they were at a nearby bar playing pool
at the time of the alleged chase incident . They asserted
they frequently went to the bar in the mornings to play
pool after their night shifts on the picket line.
Jack Hall claims he telephoned the bar owner the
same day he met with Cervantes and Madrigal . The bar
owner said he did not recall if he was open at 8:30 a.m.
around February 10, he may have been doing some
maintenance work at the bar at that time but he did
recall there were hardly any patrons at that time of the
morning and he did not recall anyone there that morn-
ing.
In response to the letter, a meeting was held on or
about February 26 with Luis Madrigal , Jose Cervantes,
Jose Gerardo, Luis Reynoso, Jesse Garcia, and possibly
David Castillo. Barbara Escalante was also present to act
as interpreter for Jack Hall and his attorney , who were
also present . According to Jack Hall, Cervantes and
Madrigal admitted they may have been in the area and
were in a van driven by Jose Cervantes . Cervantes said
he was there in the morning and Madrigal claimed he
was at a bar.
Cervantes admitted seeing Manzo leave the plant but
denied following him onto any freeway . After the meet-
ing, Jack Hall said he continued his investigation. He
interviewed Pete Escalante Jr. who recalled his conver-
sation with Manzo and seeing a van "kind of in the
center of the road" in front of Manzo.
The testimony of the bar manager, Leo Herrera, was
somewhat confused. He admitted , as Jack Hall testified,
that he called someone at Liston to offer his assistance in
helping the striking employees return to work . Herrera
was a longtime friend of Ismael Colom . He also testified
that no one from Liston called him afterward to inquire
if any strikers or other patrons were in the bar around
February 10. He admitted on occasion some of the strik-
ers come to the bar in the morning to play pool but he
could not recall if it was 7 : 30, 8, or as late as 10:30 a.m.
It was Herrera's practice to open the bar around 6:30
or 7 p.m. then go have coffee across the street for an
hour . He had an elderly gentleman as his assistant but he
had a heart attack. Also around February 10, there was
some remodeling work at the bar but he could not recall
the exact dates . He also could not recall when the assist-
ant had a heart attack but thought it occurred around
February 5 or 12.
I find Herrera's testimony does not corroborate that of
Jack Hall , who I have previously found was not a credi-
ble witness . Jack Hall 's testimony differed from the letter
he sent suspending Cervantes and Madrigal, which ac-
I have received evidence that you engaged in picket line miscon-
duct against one of our employees . This misconduct includes block-
ing entrance to the plant and engaging in a dangerous vehicle chase
after the employee left work . Such conduct included the possibility
of bodily injury and potential damage to personal property
Accordingly , you are put on suspension until February 24 If you
wish to present any evidence that such misconduct did not occur,
please contact me before February 24
If I have not heard from you in that period of time, you will be
discharged at that time If we do hear from you, we will make a de-
cision as to your further employment and ability to be on the prefer-
ential hiring list at that time
cused them of blocking the plant entrance , an allegation
not mentioned in his testimony or that of Manzo. Fur-
ther, Manzo's testimony does not corroborate Jack Hall's
testimony in significant respects.
Manzo appeared to be intentionally a difficult witness
while being examined by counsel for the General Coun-
sel. He would not fully explicate the facts and circum-
stances as requested in the questioning and appeared to
lack candor. On occasion he had to be cautioned to
listen to the question and restrict his testimony to reply-
ing only to that question . Subsequently, he still volun-
teered information. He also refused to answer some ques-
tions and had to be directed several times to reply. He
appeared resentful toward counsel for the General Coun-
sel. In sum , I find that he was not a credible witness. I
also note that his testimony did not corroborate Jack
Hall in significant respects.58
Manzo testified that on or about February 9, at 11:30
p.m., he noted he was being followed by a van at speeds
of 75 miles an hour while he was driving to work. The
van passed him and then remained stationary at a stop
sign. He recognized the occupants, Jose Cervantes was
the driver and the passenger was Luis Madrigal. The
blue van remained at the stop sign for about 2 minutes.
When Manzo attempted to pass, it moved to block his
path. Pete Escalante Jr. then stopped at the sign and the
van moved so he could pass.
The next day, at 11: 30 a.m . when he got off work, as
he was exiting the plant he saw Cervantes and Madrigal
get into the blue van . They followed him onto the free-
way. The van would get in front of him and then slow
down to 35 miles an hour or less. Jack Hall did not make
this claim . When he tried to pass them they would try to
block him . On one occasion , he made an unsafe lane
change and almost had an accident . When he did pass
them they would tailgate him even when he went 75
miles an hour . As they neared the McKinley exit of the
freeway, Manzo was in front and observed the van exit
while he continued home.
Contrary to Jack Hall's testimony , Manzo denied exit-
ing the freeway at McKinley and going into a Shell gas
station . Manzo also denied that Cervantes honked his
horn at him when they passed , he claims instead that
they yelled at him in Spanish to stop. The following day
on his way to work Manzo feared a repeat of the inci-
dents and stopped at the previously mentioned bar to
speak with a policeman . The policeman did not speak
Spanish so he asked the people in the bar if someone
would help him. One young man volunteered. Manzo
told the policeman he had been followed that morning
and named the individuals in the van. The policeman
told him he needed the license plate of the van before he
could do anything . Manzo does not recall if he told the
policeman he would get the license plate number for
him.
sa Manzo was a yardman at the time of the strike who, on occasion,
would substitute for an absent furnace operator A yard man earned $6 60
or $7 an hour and a furnace operator between $9 and $10 an hour On
February 7 he received a large wage increase which he did not want to
discuss or explain He finally stated he did not recall why he received a
large raise This appears improbable.
LISTON ALUMINUM
He then left and went to work. When he arrived at
work he told his foreman , Pete Escalante Jr., that he was
followed on the freeway.
Miguel Moreno , a current employee and one of the
strikers of Liston, testified he overheard Manzo's conver-
sation with the police officer. According to Moreno, he
often went to the bar in the mornings during February to
play pool . The earliest he was at the bar was 9 or 10
p.m. One evening in February, while at the bar, he saw
Manzo and heard him ask for someone to translate his
comments into English because he had a sheriff he
wanted to talk to. Pete Rios59 offered to assist Manzo
and went outside the screen door to the bar. Moreno
went to the screen door and overheard the conversation.
According to Moreno , Manzo told them that a van
was following him and he did not know why. Manzo
was asked if he knew the license plate number, color of
the van , and how many people were in the van and he
did not reply . The sheriff then told him if he had any
more problems to get back to him . Moreno said he had
not been drinking , he had arrived at the bar about 20
minutes before Manzo and went there only to shoot
pool. I credit Moreno's testimony based on his forthright
demeanor . In support of this conclusion is Manzo's ad-
mission that he spoke to a sheriff; however, there was no
copy of a report indicating that he had not identified the
occupants of the van or the van with sufficient particu-
larity to permit any action.
On March 3, Jack Hall sent a letter terminating Jose
Cervantes and Luis Madrigal . The letter stated:
Based on our investigation, we have decided that
your employment with the company be terminated.
As of this date , you are no longer an employee of
the company . Your name will be removed from the
preferential hiring list.
Cervantes and Luis Madrigal deny they blocked
Manzo and/or engaged in a high speed chase of his vehi-
cle. Luis Madrigal testified that in February he had
picket line duty along with his uncle, Cervantes, from
midnight to 8 a .m. Afterward they daily went to the bar,
which opened at 6 or 7 a .m., to play billiards . He lived
with his uncle and they went to and from the picket line
together in his uncles' blue and white van.
Jose Cervantes testified similarly to his nephew Luis
Madrigal . Cervantes said they went to the picket line in
his van and did not block the entrance to the plant or
prevent anyone from passing them at a stop sign. The
following morning , when a car departed , he followed it
maintaining a distance of about 100 feet as far as the bar,
where he went to play pool. He specifically denied fol-
lowing Manzo or any other car on the freeway. They
went to the bar daily . They did not drink any alcoholic
beverages at the bar, they just went to play pool. Cer-
vantes disclaims drinking any alcohol for more than a
year . The practice of playing pool at the bar was credi-
bly corroborated by Miguel Moreno.
I credit the testimony of Jose Cervantes and Luis
Madrigal . They testified in a straightforward manner
66 General Counsel had tried to subpoena Rios without success
1201
giving the appearance of candor . They testified in an ap-
parent open and honest manner . I therefore find that
they did not engage in any of the misconduct which Re-
spondent claims led to their terminations.
Discussion
Respondent contends that these employees reported
misconduct, which it reasonably believed occurred, pro-
vided a legitimate and substantial business reason justify-
ing its failure to reinstate or recall Cervantes and Madri-
gal, and justified its decision to discharge them. NLRB v.
Mackay Radio & Telegraph Co., supra, 389 U.S. at 381
(1976); Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414
F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970).
The burden then falls upon the General Counsel to dem-
onstrate the strikers' innocence and thus establish the Re-
spondent 's conduct was illegal . Rubin Bros. Footwear, 99
NLRB 610 (1952); General Telephone Co., 251 NLRB 737
(1980); NLRB v. Burnup & Sims, 379 U.S. 21 (1984):
[The employer's] burden of [demonstrating ] "honest
belief"; of misconduct requires more than the em-
ployer's mere assertion that an "honest belief" of
such misconduct was the motivating force behind
the meting out of discipline . Meeting the burden
also requires more than a general statement about
the guidelines used in establishing the alleged
"honest belief." Rather, it requires some specificity
in the record, linking particular employees to par-
ticular allegations of misconduct ." [General Tele-
phone Co., supra at 739.]
Applying this test and the analysis set forth in Clear
Pine Moldings, 268 NLRB 1044 (1984), enfd . mem. 765
F.2d 148 (9th Cir. 1985), cert. denied 474 U.S. 1105
( 1986),60 I find , based on the credited evidence, that the
suspension and subsequent termination of the reinstate-
ment rights of unlawfully discharged strikers Cervantes
and Madrigal is in violation of Section 8(a)(3) and (1) of
the Act. A.P.A. Warehouses, supra, 291 NLRB 627
(1988).
Respondent did present sufficient evidence to demon-
strate it held an "honest belief" that Cervantes and Mad-
rigal engaged in strike misconduct; they were specifically
identified by Manzo.6 t However, I find that the General
60 As the Board found in Clear Pine Moldings, an employer may legiti-
mately deny reinstatement to strikers whose misconduct under the cir-
cumstances reasonably tends to coerce or intimidate employees in the ex-
ercise of their rights protected under the Act Blocking an employee's in-
gress to work and then engaging in a high speed and dangerous vehicle
chase clearly meets this test.
61 Charging Party contends Respondent failed to establish a good-faith
belief the discharges committed serious misconduct for Jack Hall's claim
of an investigation was denied by the bar owner ; Manzo was not ques-
tioned intensely , and no law enforcement agency was contacted by the
Employer immediately after the incidents were reported by Manzo The
Charging Party hypothesizes that Respondent used Manzo 's story as a
contrivance to limit backpay liability . I find these arguments unpersua-
sive An employee who refused to participate in the strike alleged two
strikers engaged in conduct serious enough to warrant discharge and
Jack Hall unquestionably talked to Manzo who made this assertion
Manzo 's claims were sufficient to establish an "honest belier ' the miscon-
duct occurred
1202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Counsel has amply demonstrated that Manzo was not a
credible witness . The credited evidence establishes that
he was unable to identify Cervantes and Madrigal as the
individuals who allegedly engaged in the high-speed
chase to the officer . As I found above, Manzo was pa-
tently not a credible witness and his identification of
Cervantes and Madrigal was more than dubious . Franzia
Bros. Winery, 290 NLRB 927 (1988).
I also find that Cervantes and Madrigal convincingly
refuted Manzo 's allegations and the General Counsel
bore her responsibility of proving that Cervantes and
Madrigal did not in fact engage in the alleged miscon-
duct . Coca-Cola Co. of Memphis, 269 NLRB 1101 ( 1984).
See generally Roto Rooter, 288 NLRB 1025 ( 1988). Nello
L. Teer Co., 291 NLRB 484 ( 1988). Having made this
conclusion , I have not considered the possibility of ap-
plying the balancing test contained in NLRB v. Thayer
Co., 213 F.2d 748 , 753 (1st Cir . 1954).
L. Challenged Ballots
1. Jose Hernandez
On February 3, 1987, Hernandez was burned on the
foot while working at Liston. His testimony was unrefut-
ed. After several surgeries, he was released by a doctor
to return to work. He reported for work the first time
about July 1987 and told Craig Hall he could not work
because his wound was still seeping and he could not
wear boots, which were a necessary safety precaution.
Craig Hall, after viewing the injury, agreed and told him
to continue seeing the company doctor. Later in July
1987, the doctor gave him a second release to return to
work. The wound still would not permit his wearing the
necessary boots so he was told by Craig Hall he could
not work and to continue seeing the doctor. Again in
August, they had a similar conversation after the doctor
gave him another release to return to work. Craig Hall
told him to continue to visit the doctor and wait 6
months to determine if the foot would heal. Craig Hall
also instructed Hernandez to see if he could get special
socks and boots made.
As instructed, Hernandez returned to Respondent in
February and talked with Craig Hall. Craig Hall told
him to take 1 or 2 months more off from work since the
wound was still oozing, and continue reporting to him.
Hernandez tried to telephone Craig Hall on March 10,
12, and 13, but was informed Craig Hall was not at the
plant. Hernandez claims he was never informed by
anyone at Liston that he was no longer employed.
Cyndi Gates testified that since the Company was still
paying his medical and life insurance 6 months after the
accident she telephoned Workman's Compensation and
was informed Hernandez had been released for light
duty. Without any claim of further investigation, she tes-
tified that since he did not report for work she terminat-
ed him by preparing an internal document to remove
him from the payroll. She admitted she never sent any
documentation to Hernandez indicating he was terminat-
ed. She did not know if any supervisor or manager of
Respondent knew of his termination.
As held in NLRB v. Newly Weds Foods, 758 F.2d 4, 7
(1st Cir. 1985):
The rule governing eligibility [to vote] under the
National Labor Relations Act is that one employed
on the election date and on the last day of the pre-
ceding payroll period can vote in a certification
election. See Computed Time Corp., 228 NLRB
1243, 1250-51 & fn. 31 (1977). The eligibility of an
employee on sick leave, however, is determined ac-
cording to a different standard. According to the
Board,
The general rule regarding employees on sick
leave is that they are presumed to remain in that
status until recovery, and a party seeking to over-
come that presumption must make an affirmative
showing that the employee has resigned or been
discharged.
Office of the General Counsel , Outline of Law and
Procedure in Representation Cases 284 (1974).
I find that Respondent has failed to show a discharge.
Liston failed to show Cyndi Gates had authority to fire.
The only document proffered to demonstrate discharge
was an internal bookkeeping record removing Hernandez
from the payroll . This action was not demonstrated to
constitute discharge . No notice or other document was
sent to Hernandez or any supervisor at Liston.
As noted in Newly Weds Foods, id:
Restatement (Second) of Agency ch. 8 at 581 (1958)
(introductory note) ("A notification is intended to
affect the relations between the parties , and it has
that effect only if given to or by an agent who has
power to bind the principal under the rules relating
to consensual transactions between the principal and
third persons."); compare Keeshin Charter Service,
Inc., 250 NLRB 780, 792-94 ( 1980) (employer's ac-
ceptance of resignation after election does not affect
eligibility).
The court in Newly Weds Foods, gave its imprimatur to
the Board's decision in Whiting Corp., 99 NLRB 117,
revd . 200 F.2d 43 (7th Cir. 1952), which holds:
Under the Board 's practice , an employee on sick
leave . . . is eligible to vote in an election . Despite
their not working , such individuals retain their em-
ployment status and are therefore considered to
have sufficient interest in the outcome of the elec-
tion to be permitted to vote . Sometimes it is diffi-
cult to ascertain whether an employee . . . has lost
or retained his status as an employee . In such cases,
the Board applies the "reasonable expectation of
further employment" standard as an aid in resolving
the question. When the retention of [the] employee's
status is clear, as we have found it to be in this case,
the Board does not have to make further inquiry as
to the expectation of future employment . Employee
status having been established , the right to vote is
similarly established. . . .
I find that Hernandez was eligible to vote. He was
told by Craig Hall that he was to remain on sick leave
LISTON ALUMINUM
until his injury permits his return to work wearing neces-
sary protective work boots. Accordingly, I find he re-
tained his status as an employee . Cyndi Gates' uncom-
municated ministerial act or removing Hernandez from
the payroll was not demonstrated to have been author-
ized or to have warranted a change in Hernandez ' expec-
tations . On the contrary, Hernandez was told by Craig
Hall that he was to remain on sick leave until his injury
healed sufficiently to permit his safe return to work. The
condition of his injury at the time he testified was still of
a nature that prevented his return to work wearing
boots.
Assuming Cyndi Gates' uncommunicated actions
clouded Hernandez ' status, I find he had a unabated rea-
sonable expectation of returning to work . Her solitary
ministerial action is insufficient to terminate his employ-
ment . Hernandez continued to try to report to Craig
Hall in compliance with Craig Hall's instructions. The
record is devoid of any evidence that was sufficient to
base a finding that Hernandez knew or should have
reason to know of a change in his status . In fact , there is
no evidence that any supervisor knew of any such
change. In sum I conclude Hernandez was eligible to
vote in the certification election.
2. The challenged ballots
The Union challenged the ballots of Jose Lopez, Ro-
gelio Nieves, Gregorio Palacios Ramirez, Rafael Orozco,
Jaime Ramirez, Jose Rodriguez , Adolfo Romo Cuevas,
Cipriano Gonzalez, Teodoro Garcia, Rogelio Silvestre,
Miguel Romo , and Roberto Valdez asserting they were
not permanent replacements for economic strikers. I find
this objection is meritorious for these individuals were
hired after the strikers made an unconditional offer to
return to work and after the strike was converted to an
unfair labor practice strike . These replacement employ-
ees for unfair labor practice strikers are found to have
been ineligible to vote in the election. I recommend that
the Union 's challenges to their ballots be sustained.
The Board agent challenged the ballots of Jose Her-
nandez, Felix Nava Lazarro, Rafael Campos Leon, Maxi-
miliano Madrigal, Antonio Granados, Alfredo Cervantes,
Pedro Rodriguez , Jose Cervantes , and Luis Madrigal be-
cause their names did not appear on the list of eligible
voters . As found above, Jose Hernandez was an employ-
ee on sick leave who was not discharged and who had a
reasonable expectation of returning to work. According-
ly, he was eligible to vote in the election. The pouring
crew, Rafael Campos, Alfredo Cervantes, Antonio Gran-
ados, and Maximiliano Madrigal , were admittedly em-
ployees at the time of the strike and participated in the
strike . The other challenged ballots were not shown to
have been cast by eligible voters.
I find, since it was not shown the pouring crew em-
ployees are undocumented workers who were unavail-
able for work at the time of the election and whose
status otherwise disqualified them from voting, they
were entitled to vote in the election and have their bal-
lots opened and counted . There is no claim that even if
these employees were later determined to be illegal im-
migrants, such a finding affected their employee status
and rendered them ineligible to vote . As unfair labor
1203
practice strikers they are deemed to be employees in an
appropriate unit at the time of the election.
Since I have found that Jose Cervantes and Luis Mad-
rigal were discriminates , I recommend that their ballots
be opened and counted.
CONCLUSIONS OF LAW
1. Respondent , Liston Brick of Corona, Inc., is an em-
ployer engaged in commerce or in industry affecting
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Glass, Molders, Pottery, Plastics & Allied
Workers International Union, AFL-CIO-CLC (the
Union) is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By threatening striking employees with discharge
and/or plant closure, Respondent committed unfair labor
practices in violation of Section 8(a)(1) of the Act.
4. By failing and refusing to accept the unconditional
offer to return to work on behalf of the striking employ-
ees listed in appendix C [omitted from publication], when
they had not been permanently replaced, and thereafter
discharging these strikers, hiring replacements , and again
refusing the then unfair labor practice strikers uncondi-
tional offers to return to work, Respondent engaged in
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
5. By discriminatorily suspending , on or about Febru-
ary 12, and then discriminatorily discharging Jose Cer-
vantes and Luis Madrigal on or about March 3, 1988,
Respondent violated Section 8(a)(3) and (1) of the Act.
6. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the
Act, I recommend they be ordered to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent , having discriminatorily discharged
the employees listed in appendix C [omitted from publi-
cation] by refusing to allow them to return to work
when they offered on January 19 and 20 unconditionally
to return to work, and by suspending on or about Febru-
ary 12 and terminating on or about March 3 the recall
rights of Jose Cervantes and Luis Madrigal , Respondent
must offer them reinstatement and make them whole for
any loss of earning and other benefits, computed on a
quarterly basis from the date of their discharge to the
date of reinstatement or offer of reinstatement, less earn-
ings, in the manner established in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest computed as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987). See generally Isis Plumbing Co., 138 NLRB
716 (1962).
Consonant with the decisions in Sure-Tan, Inc. Y.
NLRB, 467 U.S. 883, 902-903 (1984). See Caamano
Bros., Inc., 275 NLRB 205 fn. 1 (1986); Felbro, Inc., 274
NLRB 1268, 1269 (1985), and considering the decision in
Felbro, Inc., 291 NLRB 373 (1988); 1 recommend deferral
1204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the ruling on the entitlement of Maximiliano Madrigal,
Rafael Campos, Alfredo Cervantes, Antonio Granodos,
and Felix Nava to reinstatement and backpay until the
compliance stage of this proceeding because their status
as legal residents and entitlement to these remedies are
still in issue . See Patel v. Quality Inn South, 846 F.2d 700
(11th Cir. 1988).
Remove from its files any references to its unlawful
discharges and suspensions and notify each discriminate
in writing in both English and Spanish that this has been
done and that evidence of such discrimination will not be
used as a basis for further personnel action.
The General Counsel 's request for a broad cease-and-
desist order is found not to be warranted under the cir-
cumstances of this case , and it is hereby denied.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed62
ORDER
The Respondent, Liston Brick of Corona, Inc., d/b/a
Liston Aluminum , its officers, agents, successors , and as-
signs, shall
1. Cease and desist from
(a) Threatening striking employees with plant closure
and/or discharge because they engaged in concerted pro-
tected activity.
(b) Failing and refusing to accept the unconditional
offer to return to work made on behalf of the striking
employees listed in appendix C [omitted from publica-
tion] , when they had not been permanently replaced, and
thereafter discharging these strikers , hiring permanent re-
placements for their positions and again twice refusing
these then unfair labor practice strikers unconditional
offers to return to work.
(c) Discriminatorily suspending Jose Cervantes and
Luis Madrigal on or about February 12, 1988 , and then
discriminatorily discharging these employees on or about
March 3, 1988.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Jose Cervantes and Luis Madrigal and each
of the employees named in appendix C [omitted from
publication] who have not heretofore been duly reinstat-
ed immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to
their seniority or other rights and privileges, and make
each of them (including those heretofore reinstated)
whole, in the manner set forth in the remedy , for any
losses they may have suffered as a result of the Respond-
ent's conduct found above to have been violative of Sec-
tion 8(a)(3) and (1) of the Act.
ea If no exceptions are filed as provided by Sec 102 .46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall , as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records , social security payment records , timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at all facilities and places of business, in
Corona, California, copies of the attached notice in both
English and Spanish marked "Appendix A."63 Copies of
the notice, on forms provided by the Regional Director
for Region 21, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that Case 21-RC-18115 be
remanded to the Regional Director for Region 21 with a
direction to open and count the ballots of Jose Hernan-
dez, Rafael Campos, Alfredo Cervantes, Antonio Grana-
dos, Maximilian Madrigal, Felix Nava, Jose Cervantes,
and Luis Madrigal ; and thereafter to prepare and caused
to be served on the parties a revised tally of ballots, in-
cluding therein the count of the ballots upon the basis of
which an appropriate certification shall be issued.
69 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join , or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT threaten our employees with plant clo-
sure and/or discharge because they engaged in a lawful
strike or other concerted protected activity.
LISTON ALUMINUM
WE WILL NOT fail and refuse to accept unconditional
offers to return to work made on behalf of our striking
employees when they had not been permanently re-
placed as economic strikers and thereafter discharging
these strikers , hiring replacement employees for striking
employees who had made unconditional offers to return
to work , thereby converting the strike into an unfair
labor practice strike , and subsequently refusing two other
unconditional offers of theses unfair labor practice strik-
ers to return to work because they engaged in concerted
protected activity.
WE WILL NOT suspend and then discharge Jose Cer-
vantes and Luis Madrigal because they engaged in con-
certed protected activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce any of you in the exercise of
rights guaranteed you by Section 7 of the Act.
WE WILL offer each of the employees named below,
who have not heretofore been duly reinstated by us, full
reinstatement to their former jobs and pay each of them
(including those heretofore reinstated ) the money he lost,
as a result of his not having been reinstated by us Janu-
ary 19 , 1988, as the Board found that we violated the
law by not giving them their jobs back when they of-
fered to return to work on January 19, 1988.
Aguilar, Arnuifo
Campos, Rafael
Castillo, David
Cervantes, Gildardo
Cervantes, Alfredo
Cervantes, Jose
Cervantes , Manuel
Chavez, Gildaro
Gerardo, Jose
Gerardo, Victor
Godoy, Valentin
Gonzales, Ramon
Grandos, Antonio
Hernandez , Ygnacio
Lua, Javier
Lua, Mario
Macias, Alfredo
Madrigal, Luis
Madrigal , Maximiliano
Madrigal , Miguel
Madrigal, Pedro
Mendez, Luis
Morena, Miguel
Nava, Felix
Navarro, Martin
Pacheco, Daniel
Pacheco, Jose
Pacheco, Pedro
Plascencia , Teofilo
Ponce, Ricardo
Reyes, Adan
Reyes, Rigo
Reynoso, Luis
Salasar, Guillermo
Tamayo, Mateo
WE WILL offer Jose Cervantes and Luis Madrigal im-
mediate and full reinstatement to their former positions
or, if those jobs no longer exist , to substantially equiva-
lent positions , without prejudice to their seniority or any
other rights or privileges previously enjoyed ; WE WILL
make them whole for any loss of earnings and other ben-
efits resulting from their suspensions and discharges, less
any net interim earnings , plus interest ; and, WE WILL
notify each of them that we have removed from our files
any reference to their suspensions and discharge and that
the suspensions and discharges will not be used against
them in any way.
LISTON BRICK OF CORONA , INC., D/B/A
LISTON ALUMINUM
APPENDIX B
1205
Employees Testimony About Hiring
1. Aguirre, Filemon. This individual, who was a current
employee at the time of hearing, did not appear and testi-
fy. His absence was unexplained . None of Respondent's
witnesses testified about the hiring of this employee. His
timecard indicates he commenced working for Respond-
ent on January 20.
Rogelio Nieves went with Aguirre to Liston. Nieves
testified that they went to Liston at 2 or 3 p.m. and after
completing their applications he talked to Craig or some-
one who told him to go to work. Aguirre translated for
them , for Nieves does not speak any English and did not
understand what was said . I find Nieves' testimony does
not support a finding that he and Aguirre were hired
before any of the unconditional offers to return to work.
See also the discussion of Nieves' testimony.
2. Alvares, Isidora Nora. Respondent's timecards indi-
cate that the first day this employee worked was January
21. If he was hired on January 19, as Respondent asserts,
it is not explained why he did not start working on Janu-
ary 20. Respondent failed to adduce any evidence that
indicated that this employee commenced work prior to
January 21. His employment terminated on March 27.
He did not appear and testify; it was not claimed he was
unavailable . Alvares was one of a group of individuals
the Colomos brought to Respondent 's facility the morn-
ing of January 19. The other applicants the Colomos
drove to the plant included Victor Vega, Juan Rico,
Victor Lopez, Felix Ibanez, Jose Rodriguez , Gregorio
[Palacio] and Ramon [Moyess].1
According to Ismael Colomo , he handed this group
applications and assisted them in filling them out. He
then gave the completed applications to Craig Hall
whom he claims reviewed them for 10-15 minutes and
then told them , using Ismael Colomo as interpreter, they
were hired. I note that , contrary to Craig Hall's testimo-
ny, there is no claim by Ismael Colomo or others in this
group that they were interviewed by Craig Hall prior to
their being hired.
The time these individuals were hired is also unclear
on the record. Ismael Colomo first testified that Craig
Hall told this group of applicants they were hired after
all the applications had been filed and reviewed, which
could have been late afternoon or 8 or 9 p.m., and then
testified that they were told they were hired at the be-
ginning of their "trip." Inasmuch as the Colomo group
did not depart the plant until after 1 p.m., it appears that
the first statement is the most probable. This conclusion
is supported by Ismael Colomo's inability to explain why
they stayed at the plant until after 1 p.m. and what oc-
curred that occasioned their remaining there instead of
returning to their homes .2 Ismael Colomo's testimony
' The testimony of some of the witnesses about the applicants con-
tained only first names , and by the process of elimination and combining
the testimony of several witnesses , the full names of these applicants was
determined
2 The Colomo group of applicants lived on a farm managed by Ismael
Colomo.
1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was also confused about when he was instructed by
Craig Hall to inform these applicants they were hired.
He could have received this information on January 20,
in the afternoon , when they had been instructed to
return to the facility . Ismael Colomo repeatedly admitted
he did not "recall very well" and, based principally on
demeanor , his testimony is credited only where convinc-
ingly corroborated or contrary to his friends , the Halls',
interests.
3. Blancas, Alfredo. Blancas did not testify. There was
no timecard or other business record stating the first day
this employee worked or the date his employment was
terminated . It is undisputed he no longer is employed by
Respondent. The lack of information for this employee
was not clearly explained on the record . It cannot be
concluded from the record that this employee was hired
on January 19 or any other time prior to the uncondi-
tional offers to return to work.
4. Cabrera, Rafael Andrade .3 Cabrera testified that he
applied for work at Liston on January 19 at about 3 or 4
p.m. He went with a friend , Leon Rodriguez, whose
wife assisted him in filling out the application. He was
not told he was hired that day . During the afternoon of
January 20, Leon Rodriguez telephoned him and said
Respondent was trying to contact him but he gave the
wrong telephone number ; that they were waiting for
him. When he arrived at the facility he was issued equip-
ment and thus concluded he was hired . Cabrera received
his equipment around 4 to 6 p .m. The time of this event
was fixed by his testimony that at this time Craig Hall
was called away because of the metal spill. This finding
is based on Craig Hall's testimony that the metal spill oc-
curred around this time on January 20.
When Cabrera received his equipment , he joined a
group where Ismael Colomo was acting as interpreter
for Craig Hall. Colomo translated descriptions of the
working conditions and the equipment they would re-
ceive . They were told their wages would be $6.65 an
hour, they were to report to work the next day , January
21, and they would work 6 hours a day for 3 days. A
schedule would be prepared later so that they could start
working full workdays the next week . Shifts were as-
signed based on the employees ' hometown to facilitate
commuting to work.
Respondent did not present any testimony concerning
Cabrera, and his testimony is credited based on his
straightforward appearance. His uncontradicted testimo-
ny is that he was not informed he was hired on January
19 and it was not until late afternoon January 20, after
all the unconditional offers to return to work were made
to Respondent on behalf of all the striking employees,
that he was hired.
5. Garcia, Theodora Hernandez. He is a current em-
ployee of the Company . He filled out his application
after 3 p.m. on January 194 but was not interviewed.
"This witness testified under the name Rafael Cabrera Andrade, in
accord with the Hispanic custom The custom has been followed in this
Appendix
4 Garcia was not sure when he filled out the application, initially be-
lieving it was January 18 . Since he was assisted by Roberto Valdez, who
represented he assisted applicants only on January 19. and the application
Both Roberto Valdez and an individual called Cosme
helped him fill out the application . Others that were en-
gaging in the application process at the same time were;
Cipriano Gonzales, Adolpho Romo Cuevas, and Francis-
co Gutierrez . After his application was completed, it was
taken from him and he was told he was hired , to report
to the plant the following day. He never testified he saw
any of Respondent 's supervisors.
The testimony concerning the day he commenced
working is confused . His timecard indicates he started
working at 2:05 p.m. on January 21. He also testified that
when he was told he was hired he was also informed
that he was to report to the Company the next day, Jan-
uary 20, but he does not know if he punched the time-
clock the first day he worked, although at one point in
his testimony he said he did.
I conclude that the earliest it could be argued that
Garcia was hired was after 3 p.m. on January 19.
6. Gonzalez, Cipriano . Gonzalez had his application
filled out by Roberto Valdez about 7 p.m. on January 19.
He went to Liston to apply for work with Cosme Para,
Theodoro Garcia5 and Rogelio Silvestre . Initially, he
testified that he gave the completed application to Ro-
berto Valdez who, he thinks, gave it to Howard Hall.
No manager or foreman talked to him after his applica-
tion was turned in, he was not interviewed for a job.
Gonzalez also testified that he was told to report to
work the next day by Roberto Valdez. He further stated
that he worked only 3 days that week. Then he said he
was not sure if he started work on Wednesday or Thurs-
day. His timecard, which was first punched on Thurs-
day, January 21, indicates that he worked Saturday that
week . The timecard, he claims, was not given to him the
first few days, they gave it to him the third day, which
would have been January 22 or 23.
This witness showed poor recollection of dates. I find
that the earliest he could be determined to have been
hired by Respondent is after 7 p.m. on January 19, and
he started working on January 21. There is no evidence
that he was paid for working on January 20 and he did
clearly claim he worked only 3 days that week, making
the first day of work Thursday, since his timecard shows
he worked Saturday.
7. Gutierrez, Francisco . Gutierrez , a current employee,
is related to Howard Hall's wife, who is his sister. Her
half brother, Gale Pyle, who lives with the Howard
Halls, called him the evening of January 18 to tell him
that he might get work at Liston . The following morning
he drove to the plant with Juan Silvestre , who was also
interested in applying for work . They arrived at the
plant about 8 a.m. but were reticent to enter because of
the picketers at the plant entrance .6 Howard Hall told
is dated January 19, 1 find that the earliest the application could have
been submitted was January 19.
5 Gonzalez also testified that he believed Theodoro Garcia Hernandez
completed his application earlier that day, in the morning Garcia testi-
fied he completed his application about 3 p m. This gratuitous surmise
impairs the credibility of Gonzalez
6 There was no evidence of picket line misconduct by particular strik-
ers at this time, and there is no claim by Respondent that picket line mis-
conduct on January 19 abrogated any strikers right to reinstatement,
either as an economic or unfair labor practice striker
L:ISTON ALUMINUM 1201
them to go to his home, which was very close to the
plant and he would call them when they could enter the
facility . They followed his instructions and 1-1/2 to 2
hours later they were called by Howard Hall to return
to the plant to pick up applications.
They went to the plant , without incident , got their ap-
plications and returned to Howard Hall's house where
Gale Pyles assisted them in filling out their applications.
They then returned to the plant for a third time and
gave the documents to some women he could not identi-
fy. He then talked with Howard Hall, he speaks little
English and Howard Hall speaks a little Spanish.
Howard Hall testified he does speak "some" Spanish.
They had a short conversation about times they shared
in Mexico . When asked if he was told he was hired he
replied : "From there, we left."
Gutierrez , who lived in Beaumont which is located
about 45 miles from Liston, returned to his apartment
complex about 1 p.m. to see if anyone else wanted to
apply for work at the Company. He found about three
others , including Juan Silvestre 's son , Rogelio Silvestre.
Later, Gutierrez again returned to Beaumont and sought
additional applicants . He found about six more men inter-
ested in jobs at Liston, so he again returned to the plant.
Included in this group were Cipriano Gonzalez, Roberto
Valdez, and Cosine Para . Gutierrez was not told if any
of the applicants he brought to the plant were hired.
Howard Hall testified that he told Gutierrez he was
hired shortly after he turned in his application . The fail-
ure of Gutierrez to corroborate this testimony is indica-
tive of the failure in Respondent 's case to convincingly
corroborate its witnesses' patently self-serving testimony.
Howard Hall also gave much shorter time estimates than
Gutierrez . For example, he said they waited at his house
only 20 minutes to half an hour before he telephoned and
told them to come to the plant to get their applications.
He also claimed the six applicants Gutierrez brought the
third time came around 2 p.m. Since Gutierrez testified
he left the plant at 1 p.m. after turning in his own appli-
cation and returned another time with only three appli-
cants, this estimate is clearly contradictory , and I find
Gutierrez , who is a current employee, more credible. He
appeared to be testifying candidly, and readily admitted
when he could not recall events or did not know the
answer to a question.
I therefore conclude that the six employees who came
with Gutierrez the third time could not have been hired
prior to late afternoon or early evening on January 19, if
they were in fact told they were hired that day. This
conclusion is supported by the testimony of Juan Sil-
vestre, who was with the second Gutierrez group. Juan
Silvestre testified that Roberto Valdez filled out his ap-
plication for him about 3 p.m. on January 19. He later
said he arrived at the plant to apply for work after 4
p.m. Accordingly , Gutierrez could not have returned to
Beaumont and recruited additional applicants until the
evening of January 19, and I so find.
Howard Hall claims Roberto Valdez was assigned the
task of helping the other applicants complete their appli-
cations and when they were completed told Valdez and
Gutierrez to tell the men from Beaumont that they were
all hired . He does not claim to have heard the message
relayed . Howard Hall did not aver that he interviewed
any of these or other applicants . As detailed below,
Adolfo Cuevas Romo testified that after turning in, his
application , which he completed with the assistance of
Roberto Valdez, Gutierrez told him he would be called
if he was hired . Later, he believes the same day he ap-
plied , Gutierrez telephoned him and told him he was
hired. This testimony by an employee is more credible
based on Romo's forthright demeanor and his position as
currently economically dependent upon Respondent.
The date Gutierrez started working is not clear from
his testimony . The first day indicated on his timecard is
January 21 , when he clocked in at 7 : 51 a.m. and worked
12 hours.' He testified he began working on January 19
but there are no documents indicating he was paid for
any work on January 19. He also testified he did not get
any equipment until a day or two after he started work-
ing, and Craig Hall never gave him any equipment, that
he got a hard hat 3 or 4 days after he began working.
Then he said that he did get eyeglasses , gloves, a hard
hat and work equipment, but he did not recall exactly
when but believed it was 2 or 3 days after he began
working for Respondent . This variance with Craig and
Howard Hall 's testimony , as well as the statements of
many of the replacement employees is unexplained, and
impairs the Hall's credibility.
The lack of any clear claim by this witness that he was
hired the morning of January 19 leads me to find that
there is no credible evidence that he was hired by Re-
spondent before any unconditional offer to return to
work was made on behalf of the striking employees.
8. Hernandez, Estaban . Hernandez did not testify, he
terminated his employment with Liston on or about
April 19 . His application is dated January 18 and his
timecard was first punched on January 20. Hernandez, at
least, was issued a timecard to record the hours he
worked for Liston on the day when others testified that
they worked but were not issued timecards . That some
timecards were issued to alleged replacement employees
on January 20 raises the inference that timecards were
issued as these employees commenced working for Re-
spondent. This conclusion is bolstered by the stipulation
entered into by Respondent , noted earlier, that most of if
not all of the replacement employees were paid in ac-
cordance with their timecards.
Craig Hall testified that Hernandez was one of the first
applicants he saw on January 19. One of the others was
Cesar Meza, he could not recall the name of the third.
Why his application is dated January 18 is unexplained.
Craig Hall testified he saw these three applicants early in
the morning and personally helped them fill out their ap-
plications . Craig Hall did not indicate what, if anything,
he said to any of these three applicants . There is no evi-
dence they were hired on January 19; they could have
been informed they were hired as either temporary or
permanent replacements the morning or afternoon of
' The 12-hour workday , as reflected on the timecard, is at variance
with Craig Hall 's claim the employees were at work only 6 hours the
first 3 days of their employment . This contradiction is another basis to
conclude Respondent's agents lacked credibility.
1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
January 20, as was the case with Roberto Valdez and
others.
This testimony further brings into question Craig
Hall's credibility for the date on the application indicates
there was an attempt to indicate the applicants sought
employment earlier than they did in fact . This aberration
between the date of the application and the testimony, as
discussed in greater detail elsewhere , supports the testi-
mony of two replacement employees that they were
asked to complete new applications shortly before they
were interviewed by a Board investigator to reflect they
applied on January 19 rather than on the dates they actu-
ally sought employment , which was after January 19.
9. Ibanez, Felix Esuinosa . Ibanez did not testify . His ap-
plication was dated January 19 , his timecard was first
punched January 21 and he terminated his employment
on April 19 . Oscar and Ismael Colomo testified that he
was one of the eight applicants they brought to Liston
about 9 or 10 a.m. on January 19. I conclude that he, like
the rest of the Colomo group , was hired after Garcia
made the first unconditional offer to return to work on
behalf of the striking employees.
10. Lopez, Joe Guerrero. The Lopez application was
dated January 19 and his timecard was first punched on
January 20 . Lopez credibly testified that he applied with
his brother-in-law, Leonardo Rodriguez, was told by
Craig Hall on January 19 shortly after noon that there
were not enough men to start a crew and he would be
called when enough men were assembled . He was called
about 2 p.m. on January 20 and told to report for work
at 3:30 p.m. that same day. This evidence does not sup-
port a finding he was hired before the first unconditional
offer to return to work.
11. Lopez, Victor. This replacement employee did not
testify . His application was dated January 19 and his
timecard was first punched on January 21. Lopez was
identified as one of the Colomo group and I find he was
hired the same time as the rest of the group , after the
first unconditional offer to return to work. He is still em-
ployed by Respondent.
12. Luevano, Javier. Luevano's application is dated Jan-
uary 19 and his timecard was first punched on January
22. He testified that he was driven to Respondent's by
Juan Silvestre along with Cipriano Gonzales, Miguel
Nunez and Pedro Rodriguez . When they got there they
were assisted by Roberto Valdez, who was an employee
of Respondent at the time . This testimony was clearly in
error, for Valdez was another applicant for employment
when he assisted him in filling out the application. After
completing their applications , Roberto Valdez told them
to return later when someone from the Company would
talk to them . They were not told at this time they were
hired . Luevano is one of a group of employees who re-
sided in Beaumont , California.
Luevano's testimony admits that he was not hired until
after 4 p.m. on the day he applied , which was after
Garcia made the unconditional offer to return to work
on behalf of the employees . The time he was actually in-
formed he was hired appears more likely to be after 4
p.m. on January 20 since that was the time other appli-
cants were told to report to Liston to speak with Craig
Hall and receive their equipment . Also, in contradiction
of Luevano, Cipriano Gonzalez testified that Roberto
Valdez filled out his application at 7 p.m. on January 19.
Pedro Rodriguez , after having his recollection refreshed
by his affidavit corroborated Gonzalez' testimony that
they applied for work the evening of January 19. I credit
the Gonzalez and Rodriguez estimates of when they ap-
plied for work at Liston based on their forthright and
convincing demeanor.
13. Mabery, Gary. There was no application or time-
card for this asserted replacement employee whom Re-
spondent indicated worked only 3 or 4 days after he was
ostensibly hired on January 19. The lack of any corrobo-
rating documentation was not specifically explained.
Since I have not found Respondent' s witnesses credible,
I conclude the record fails to support the bare claim that
Mabery was hired before any of the unconditional offers
to return to work had been made on behalf of the strik-
ing employees.
14. Magana, Manuel . The parties stipulated that
Magana was hired on February 1 as a furnace operator,
because they had an immediate need for a skilled em-
ployee in that position and could not wait for the reply
of a striker on the preferential hiring list. About 30 to 60
days later Magana was promoted to the position of fore-
man. There was no evidence concerning his duties as
foreman compared to his duties as furnace operator.
There is no question he was hired after the unconditional
offers to return to work had been made on behalf of the
striking employees.
15. Marshall, Marcus Kim. There was no application
filed by this replacement employee who terminated his
employment on January 22. His W-4 form was dated
January 19. There was no explanation offered for the ab-
sence of an application . Craig Hall believed that Mar-
shall was hired as a furnace operator on January 19 but 5
hours later was moved to the position of shredder. There
was no testimony indicating at what time he was hired.
There was no timecard for this replacement employee.
There was no explanation why this replacement employ-
ee assertedly commenced working on January 19 when
most of the other replacement employees did not begin
working until January 21. There was no assertion he was
an experienced furnace operator. In fact , the claims of
Craig Hall would suggest otherwise . Accordingly, based
on credibility resolutions which rest primarily upon de-
meanor, I find that this employee was hired after the first
unconditional offer to return to work was made by
Garcia.
16. Martinez, Juan Rico. This current employee has an
application dated January 19 and a timecard which was
first used on January 21. He did not testify but was
named as one of the applicants brought by the Colomos.
I find he was hired at the same time as the rest of this
group , after the first unconditional offer to return to
work.
17. Meza, Cesar. This current employee did not testify.
His application is dated January 18 and the first entry on
his timecard is January 20. Craig Hall testified that Meza
applied for work with two other applicants, including
Hernandez and they were the first three replacement em-
ployees he saw on January 19. There was no explanation
LISTON ALUMINUM
why his application was dated January 18, which is an-
other basis for calling into question the dates contained
on the applications as probative of the actual dates indi-
viduals applied ; no less the date they were hired.
Craig Hall's testimony did not address what he said to
these three applicants, one of whom's name he could not
recall . I find this evidence does not support a conclusion
that Meza and Hernandez were hired before the first un-
conditional offer to return to work was transmitted to
Respondent.
18. Moyess, Ramon . The status of this individual is not
clear on the record, and I find that there is no evidence
that he was ever hired . He was one of the individuals the
Colomos drove to Liston on January 19. There is an ap-
plication dated January 19, but no timecard or other evi-
dence that he ever was hired and worked for the Com-
pany.
19. Murray, Don. This current employee did not testi-
fy. There is no application or timecard for him. Craig
Hall said Murray was fired prior to January 17 and was
rehired on January 19. Craig Hall failed to state the time
he was rehired and the lack of a timecard was also unex-
plained . The evidence was clear that this employee was
not on a leave of absence or otherwise had employee
status on January 19. This failure to present evidence as
to time of hire, at the very least, leads me to conclude
that if he was hired, it was after Garcia made the uncon-
ditional offer to return to work on behalf of the striking
employees.
20. Nieves, Rogelio Gudino. Nieves, a current employ-
ee, testified that he initially applied for work at Liston
on December 14, 1987, but was not hired. He received a
telephone message which he understood indicated he
was or would be hired by Liston. The same day, January
19, at about 2-3 p.m., he returned to Liston with File-
mon Aguirre and Rafael Orozco. Craig Hall told them
they were hired. They started working the next day, Jan-
uary 20. His timecard was first punched on January 21.
This uncontradicted testimony clearly establishes all
three were hired after Garcia made the first uncondition-
al offer to return to work on behalf of the striking em-
ployees.
21. Nunez, Miguel. This replacement employee was
terminated 3 or 4 days after he was hired. There was no
application or timecard provided by Respondent for this
replacement employee. Their absence was unexplained.
As previously indicated , Nunez testified the first day he
went to Liston was Wednesday, January 20, around 3
p.m., with a large group of men , including Cosine Parra,
Pedro Rodriguez, Roberto Valdez, and Francisco Gu-
tierrez, referred to as the Beaumont group . When Valdez
informed Craig Hall that Nunez came for work, Craig
Hall said it was all right and added his name to a list.
Craig Hall told the Beaumont group they would start
work at 4 p.m. the next day.
On payday after being hired, Nunez went to the office
to get his money and fill out an application . He believes
there were another 3 or 4 other employees who were to
fill out applications on payday. He was told to put Janu-
ary 19 as the date of the application by a woman em-
ployee of Liston who was directing the application proc-
1209
ess that day. He quit on payday because of the low pay,
$6.50 per hour.
There was no testimony from any supervisor or other
agent of Respondent directly disputing the testimony of
Nunez . The parties stipulated there was no application,
timecard, or personnel file for this replacement employ-
ee. The lack of these documents was not explained.
Craig Hall testified , generally, that there was confusion
due to their attempts to replace the striking employees in
1 day. Since three records are missing concerning
Nunez, this testimony does not clearly explain why only
the payroll record reflects he was employed by Re-
spondent . I conclude this evidence is insufficient to sup-
port a finding that he was hired prior to the first uncon-
ditional offer to return to work made by Garcia.
22. Orozco, Rafael. Orozco was terminated on April
28. His application was dated December 14, 1987, and
his timecard was first stamped on January 20. Orozco
did not testify , and there was no evidence adduced about
him from any of Respondent 's supervisors or agents.
Thus any findings made about this replacement employee
are derived from the undisputed testimony of Rogelio
Nieves, who was found to have been hired after the first
unconditional offer to return to work.
23. Para, Cosme. Para's application is dated January 19
and the first entry on his timecard is January 21. Para
did not testify and there was no mention of him in the
evidence adduced from the Respondent 's supervisors.
Therefore, any conclusions about his employment will be
based on the testimony of Gonzalez , who I found was
hired after 7 p.m. on January 19.
24. Ramirez, Gregorio Palacio . Ramirez was one of the
group of applicants brought to the Company by the Co-
lomos . His application is dated January 19 and his time-
card was first used on January 21. He is a current em-
ployee who testified that he applied about 3 p.m. on Jan-
uary 19, and after being interviewed by Craig Hall was
told that he would be called . Initially his testimony on
when he was hired was confused but Ramirez admitted
his affidavit was correct . His affidavit states that the
interviewer did not tell him he was hired or when he
would start working . He was told he would be called.
His affidavit also stated that he was first told he was
hired on Wednesday or Thursday , he could not recall
which. The Colomos testified that they informed Rami-
rez and others they were hired on January 19. Based on
demeanor, I do not credit these assertions of the Colo-
mos.
I find Ramirez' testimony credible based on the con-
vincing demeanor of this witness who appeared to be re-
lating the facts he could recall, and candidly admitted he
recalled the events clearer at the time he gave his affida-
vit. He visibly understood this testimony was antithetical
to the interests of his employer.
25. Ramirez, Jaime . This replacement employee's appli-
cation was dated December 14, 1987, and his timecard
was first punched on January 21. Ramirez did not testify
and no supervisor and/or agent of Respondent indicated
when he was hired. His employment was terminated on
April 9. I conclude there is no credible evidence to base
a finding he was hired prior to any unconditional offer to
1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
return to work was made on behalf of the striking em-
ployees.
26. Rodriquez, Jose Manuel . This current employee was
a member of the Colomo group who applied for employ-
ment on January 19. His timecard was first punched on
January 21. He credibly8 testified that he was not told he
was hired until January 20 about 3 p.m. when he came
with others in the Colomo group and they were given
their hard hats . They were told to start work the follow-
ing day, January 21. He specifically and convincingly
denied being told by either Colomo that he was hired on
January 19, and disclaims statement in his affidavit that
he was interviewed by Jack Hall. 9 Similar to other re-
placement employees, Rodriguez said there was a tele-
phone call telling them to come to Liston on January 20.
27. Rodriguez, Leonardo. Rodriguez' application was
dated January 19 and his timecard was first punched Jan-
uary 20. His employment with Liston terminated May
10. He did not testify. Craig Hall claimed he interviewed
Rodriguez in the presence of the applicant 's wife who
translated for him on the morning of January 19. Craig
Hall said he told the wife to inform Rodriguez he was
hired.
I have credited the testimony of Joe Lopez that he ap-
plied with Leonardo Rodriguez in the afternoon of Janu-
ary 19 and was not told until January 20 that he was
hired. I note that Craig Hall did not exhibit a convincing
countenance when he testified and admitted to poor
recall of the events of January 19, 20, and 21. He also
admitted to being under the influence of drugs at this
time. I find this candor admirable, but must note that its
affect on his recall of the events in January was obvious.
In addition to admitting he could not recall many of the
names of replacement employees, including those who
were current employees , he was surly and hostile when
examined by opposing counsel . In conclusion, I find that
his testimony , unless an admission against interest or con-
vincingly corroborated, is not credible.
28. Rodriquez, Pedro. This replacement employee's ap-
plication is dated January 19, but he was not sure what
day he applied for work. His testimony was confused.
He admitted that on his first payday he was told his ap-
plication was lost and he filled out another ; dating it Jan-
uary 19. He claims he applied for work in the morning
but his affidavit asserts he filed his application about 6
p.m. on January 19 along with about five other appli-
8 This witness' visage bespoke his attempts to give honest answers
without regard to their impact upon his employer 's interests.
8 His affidavit provides in part-
[ made an application to work at Liston Aluminum on the 19th of
January 1988 . I filled out the application and I turned it in to the
secretary in the afternoon at the office.
I was interviewed by Jack Hall in a group on the afternoon of the
19th January . He told us there was work and to start working the
next day at 8 a in He did not tell us anything about the pay but he
told us there was work-because there was a union.
There is no convincing evidence Jack Hall ever interviewed , no less
hired , any applicants , in fact he disclaims any direct role in the hiring
process The reason for the disparity between the affidavit and his testi-
mony was not explored Based on demeanor, discussed above, and inher-
ent probabilities , including the testimony of other replacement employees,
the testimony of Jose Rodriguez is credited However , I note, even if his
affidavit is credited , it indicates he was hired after Garcia made the first
unconditional offer to return to work on behalf of the striking employees.
cants from Beaumont , including Cosme Parra, Roberto
Valdez, and Theodoro Garcia . Considering this witness'
lack of convincing demeanor and demonstrated poor
recall, I find his affidavit, which was given March 8,
when the events were closer at hand , more credible.
There was no timecard for this employee ; its absence
was unexplained . He was on disability since February 11
until the time he testified . He appeared to be coloring his
testimony in a shade most favorable to his employer's
position , and therefore , I credit his statements only
where convincingly corroborated or if it is clearly ad-
verse to Respondent 's interests.
I note Howard Hall testified he saw this and several
other applicants after 6:30 p . m. and arranged for them to
fill out applications . After they were finished he said he
told Gutierrez and Valdez to inform these applicants
they were hired . Howard Hall admitted he was not
fluent in Spanish and does not claim he heard no less un-
derstood these instructions were followed . Thus, there is
no evidence by Respondent this employee and his com-
panions were knowledgeable hired the evening of Janu-
ary 19.
I also note that Theodoro Garcia testified that he ap-
plied for work after 3 p.m. Roberto Valdez testified that
he applied for work after noon on January 19, went
home and later received a telephone call stating he was
hired . Accordingly, I conclude if Pedro Rodriguez, Ro-
berto Valdez, and Theodoro Garcia had been hired on
January 19, it had to be after 3 p.m.; after the first un-
conditional offer to return to work was made by Jessie
Garcia.
29. Rogero, Juan . This employee did not testify. His
application was dated January 19 and there was no time-
card indicating approximately when he commenced em-
ployment.
Contrary to Howard Hall, Craig Hall testified that he
was involved in the hiring of every replacement al-
though he did not know their names, and he interviewed
most of them , asserting some were interviewed by
others . These others were not named, and Howard Hall
never detailed any interviews he conducted ; he only as-
serted that he told some applicants they were hired.
These evidentiary conflicts were never resolved and, in
addition to their demeanor , support the decision not to
credit their testimony.
Craig Hall recognized that he filled out portions of
Rogero's application and that the application stated he
interviewed him on January 20. He never explained the
inconsistency in his testimony that no applicants were
hired on January 20 and the date of Rogero 's application
indicating Craig Hall interviewed him on January 20.
This current employee was not called to corroborate
Craig Hall or otherwise clarify matters. The absence of a
timecard for this employee was also unexplained. I con-
clude that there is convincing evidence this replacement
employee was hired before Jessie Garcia made the un-
conditional offer to return to work on behalf of the strik-
ing employees.
30. Romo, Adolpho Cuevas. This replacement employee
was one of the Beaumont group . He recalled applying
for a position the afternoon of January 19. The first day
LISTON ALUMINUM
his timecard was punched was January 22, which he be-
lieved was his first day of work, although he admitted
his recollection of the day he started work was vague.
He was assisted in completing the application process by
Roberto Valdez and then was told by Francisco Gutier-
rez that he would be called ; he was not told he was
hired at the time he filed his application.
Gutierrez called him that same week , but not on Janu-
ary 19, to tell him he was hired and when to report for
work. He executed his W-4 form on January 22, which
lends credence to his testimony that was the day he
started working and Gutierrez called him that morning
to come to work. His affidavit, Respondent claimed, was
contrary to some of his testimony , but Respondent failed
to qualify the document ; the witness could not read it
and no other witness was called that could establish the
authenticity of the document ; no less the accuracy of its
contents.
In support of other testimony discussed in the body of
this decision ; Adolpho Romo also testified that:
Q. Do you remember if you spoke to Jessie
Flores or Howard Hall about the Affidavit before
you went into the Labor Board Man?
A. They just gave us an Application and Jessie
Flores said that's an Application of what we were
going to say there.
Q. Okay. Jessie Flores gave you that Application
the day you spoke to the Labor Board man?
A. No, gave it to us the day before.
Q. Okay. And did he talk to you about the dates
that you were supposed to have given the Applica-
tion to the company?
A. Yes.
Q. And did he tell you that when you spoke to
the labor board you should tell the Labor Board
that you'made the Application on January 19th and
were also hired that day?
A. Yes.
This testimony was not refuted by any supervisor or
agent of Respondent . This undisputed , corroborated tes-
timony is credited , based primarily on demeanor . Thus, I
find that Romo was hired after all the unconditional
offers to return to work were made on behalf of the
striking employees.
31. Romo, Miquel Reyes. This current employee testi-
fied that he filed an application on January 19, and he
was told to report for work by either Howard or Craig
Hall the next day. He was uncertain who hired him but
there were other applicants for work at the time includ-
ing Roberto Valdez and Pedro Rodriguez . This witness
also testified that he worked for 6 hours the day he ap-
plied and was hired . He further claims he worked 8
hours the following day. His timecard was first punched
on January 23. He claims he was never given a timecard
and the handwriting thereon was not his.
Further confusing the testimony and status of this re-
placement employee is the fact that he was not listed by
Respondent as a new hire in the document it prepared
for the General Counsel during the investigation of the
charge here under consideration , General Counsel's Ex-
hibit 3. I conclude that this confused testimony fails to
1211
warrant a finding that he was hired prior to the first un-
conditional offer to return to work.
32. Sandoval, Albert. Sandoval did not testify , in fact,
there was no testimony concerning this replacement em-
ployee . The documents indicate his application was
signed on January 19, his timecard was first punched on
January 20 and his employment with Liston terminated
on February 3. I conclude this evidence is insufficient to
support a finding that he was hired prior to the first un-
conditional offer to return to work.
33. Silvestre, Juan . This witness testified that he arrived
at Liston around 3 p.m. on January 19 when Roberto
Valdez filled out his application for him. There is no
question , based on this evidence , that he was hired after
Jessie Garcia made an unconditional offer to return to
work on behalf of the striking employees.
I note Francisco Gutierrez ' confusing testimony con-
cerning the time he and Silvestre applied for employ-
ment and were hired by Howard Hall is not credited.
Silvestre was one of the Beaumont group and appar-
ently went to Liston on January 20 with others from
Beaumont , and they chose to work the afternoon shift.
His timecard was first punched on January 21. Juan Sil-
vestre terminated his employment with Respondent on
February 19.
In sum , I find Silvestre 's testimony does not convinc-
ingly prove he was hired prior to Garcia's unconditional
offer to return to work was made to Respondent on
behalf of the striking employees.
34. Silvestre, Rojelio . This current employee testified
that he filled out his employment application at 4 p.m. on
January 19, handed it to a female employee of Liston left
and then returned at 2 p . m. that same day to work. The
impossibility of this testimony suggests that he filed the
application in the late afternoon of January 19 and re-
turned on January 20, after being told to report with the
others who met with Craig Hall during the afternoon of
January 20 to be told they were hired , issued safety
equipment and assigned a workshift. This comports with
the physical evidence , his timecard, which was first
punched on January 22 and testimony of other appli-
cants . Accordingly, I conclude that this replacement em-
ployee was hired after Jessie Garcia made an uncondi-
tional offer to return to work on behalf of the striking
employees.
35. Tanaka, Damon . Tanaka was terminated January
29. He did not testify nor did any of Respondent's wit-
nesses mention him other than referring to his applica-
tion which was dated January 19, and his timecard,
which was first punched on January 20. This lack of evi-
dence does not support a finding that he was hired
before an unconditional offer to return to work was
made on behalf of the striking employees.
36. Turner, Roy Wayne . Turner's employment with Re-
spondent was terminated on February 2. He did not testi-
fy. His application form is dated January 19 and his time-
card first punched on the same date.
Craig Hall testified that he hired Turner in the morn-
ing of January 18 and put him to work at that time.
Since his father claimed it was not until the late after-
noon or evening of January 18 that he decided to hire
1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
replacement employees and had given the striking em-
ployees until the commencement of their respective shifts
to return to work before they were replaced , this testi-
mony is not credited or credible . This disparate testimo-
ny is one of many unresolved conflicts in Respondent's
case that leads me to conclude that the testimony of the
Halls and their agents is not reliable or convincing.
Turner is the only individual hired prior to the first un-
conditional offer to return to work and there was no
convincing evidence he replaced a particular striker.
37. Valdez, Roberto . Valdez, a current employee , testi-
fied he applied for employment at Liston by noon on
January 19. He said he went into the office and got an
application form from a woman employee of the Compa-
ny. After completing the application , he gave it to a
female employee and left . On January 20, about 10 a.m.,
he received a telephone call from his brother informing
him that Liston called his brother telling him Valdez was
hired and to report to Liston. When he went to the
Company, Craig Hall told him he was hired . He began
work on January 20. His timecard was first punched on
January 21 . He believes Javier Luevano began work the
same day as he, January 20.
He applied for employment alone on January 19, and
as he was leaving , took the time to assist three other ap-
plicants to complete the forms . He could recall the
names of only two of those he assisted ; Cipriano Gonza-
lez and Rogelio Silvestre . The third applicant he helped
may have been Cosine Para.
Howard Hall testified that he asked Valdez to help
Francisco Gutierrez , and a man named Rodriguez, as
well as three or four others , in the application process.
He further testified that after the applications were fin-
ished he told Valdez to inform these applicants they
were hired. As noted above, Howard Hall is not a credi-
ble witness . I also note that this current employee did
not corroborate Howard Hall 's testimony.
Further, even if he told Valdez to tell the seven or
eight applicants he referred to they were hired , there is
no evidence he did, or that Valdez himself was informed
on January 1910 that he was hired . I conclude that
Valdez was not told he was hired by Respondent until
after the employees made their unconditional offer to
return to work about 8 a . m. on January 19.
10 Valdez initially testified he was not informed he was hired until he
talked with Craig Hall on January 20 He subsequently changed his testi-
mony and testified Craig Hall told them they were hired on January 19
His demeanor at the commencement of his testimony leads me to credit
his initial statement . I also note that it was given in greater detail with
apparent intent to relate all the facts to the best of his ability . His appear-
ance later altered to indicate an apparent concern for his interest as a cur-
rent employee rather than a interest in presenting truthful and accurate
te'.timony.
38. Vega, Victor. This current employee testified he
was one of the Colomo group that applied for employ-
ment on January 19. His timecard was first punched on
January 21 . The witness confirmed he commenced work
no earlier than January 21 , for he said the first day he
worked was "after the third day . . . three days later."
He got his equipment during the afternoon of January 20
and Craig Hall told them at the time he distributed it
that they would begin work the next day. Vega indicated
on direct examination that it was when he was given his
equipment that he was told his application had been re-
viewed and he was hired . Vega testified that Craig Hall
asked the entire Colomo group the afternoon of January
20 if they wanted to work and they all replied in the af-
firmative. I t
Initially on cross-examination , he testified that no one
told him he was hired after his application was turned in
to Craig Hall on January 19; that no one from Liston
spoke to him later that day. Later , on cross-examination
by Respondent's attorney , Vega , in response to a leading
question referencing his affidavit, said Ismael Colomo
told him Craig Hall would call and tell him when to
report to work . After having read his affidavit , he failed
to answer counsel for the Charging Party's questions
about his affidavit concerning the first day of work,
which was claimed as January 25 in the affidavit. His
patent change in demeanor after his initial testimony
leads me to discredit all his claims after his employer's
counsel commenced his examination . I therefore find that
he was not told he was hired until January 20.
39. Woodard, Gerald. This replacement employee did
not testify . His application was dated January 19. His
employment was terminated March 4 . There was no
timecard for him and there was no testimony about when
he was hired . I find the record will not support a conclu-
sion that he was hired prior to Garcia making the first
unconditional offer to return to work on behalf of the
striking employees.
40. Woodard, Wes. This replacement employee did not
testify. His application was dated January 19 and he had
no timecard . His employment was terminated during the
week ending March 27. Craig Hall could not recall
which job he was hired to perform . The lack of any evi-
dence concerning what time of day this individual ap-
plied, no less was hired , requires me to conclude that
there is no basis to find he was hired before any uncondi-
tional offer to return to work was made on behalf of the
striking employees.
i i The testimony of this witness was confused He exhibited great diffi-
culty in understanding the questions . For example, on cross-examination
he testified that one of the Colomos told him he had a job at Liston prior
to leaving his residence to apply for a position