Multimatic Products, Inc.

National Labor Relations Board - Board Decisions

May 31, 1988

288 N.L.R.B. 1279 (N.L.R.B. 1988)

MULTIMATIC PRODUCTS 1279
Multimatic Products, Inc. and Industrial Trade
Union Local 231, International Union of Dolls,
Toys, Playthings, Novelties and Allied Products
of the United States and Canada, AFL-CIO.
Case 29-CA-6253
May 31, 1988
DECISION AND ORDER
BY MEMBERS BABSON, JOHANSEN, AND
CRACRAFT
On January 30, 1981, Administrative Law Judge
Jesse Kleiman issued the attached decision. Multi-
matic Products, Inc. (the Respondent) filed excep-
tions and a supporting brief alleging, inter alia, that
Industrial Trade Union Local 231 (the Union) had
engaged in fraudulent conduct and that Regional
Office personnel had engaged in improper conduct
with respect to this proceeding. On August 13,
1982, the Board remanded this proceeding to the
judge for the purpose of adducing further evidence
and making appropriate findings concerning the
Respondent's allegations of fraud by the Union and
improper conduct by Regional Office personnel,
and how that conduct, to the extent engaged in, af-
fected the validity of the judge's rulings, fmdings,
conclusions, and recommended Order. 263 NLRB
373. The Board instructed the judge to make credi-
bility resolutions, findings of fact, and conclusions
of law, and to reevaluate, if necessary, earlier
credibility resolutions, findings of fact, and conclu-
sions of law in light of evidence already received
and any new evidence adduced at the second re-
opened hearing.
On August 30, 1985, the judge issued the at-
tached supplemental decision. All parties filed ex-
ceptions and supporting briefs, and the Respondent
filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision, the sup-
plemental decision, and the record in light of the
exceptions and briefs and has decided to affirm the
judge's rulings, findings,' and conclusions 2 as
I All parties have excepted to some of the judge's credibility findings.
The Board's established policy is 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), add. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings
2 We shall refer the allegations of fraud on the Union's part to the
proper authorities.
We agree that a bargaining order is not warranted here bioause the
Union failed to achieve majority status. In doing so, we find it unneces-
sary to pass on the Judge's remaining discussion of the appropriateness of
a bargaining order.
modified 'below and to adopt the supplemental de-
cision's recommended Order as modified.3
1. We agree with the judge that the Respondent
engaged in numerous violations of Section 8(a)(1)
including interrogations, threats, promises of bene-
fit, urging employees to allow the Respondent to
sponsor a union of its own choosing, and creating
the impression of surveillance of employee union
activity. However, we do not agree with his find-
ing that the Respondent unlawfully created the im-
pression of surveillance on February 20, 1978,
when the Respondent's principals, Jack and Irving
Kipnes, while standing outside the plant and in a
position visible to the employees, briefly watched
the Union's representatives distributing authoriza-
tion cards to the employees. The Board has held
that brief observation by an employer of open
union activity in front of its property does not con-
stitute surveillance. 4 Similarly, we find here, based
on evidence indicating nothing more than brief in-
spection of open union activity, that the Respond-
ent has not engaged in unlawful conduct.
2. We agree with the judge that the Respondent
unlawfully discharged Dominick Lauriano and
failed to timely reinstate Eileen Darcy. We also
adopt the judge's finding that the Respondent's dis-
charge of employee Jorge Arias violated Section
8(a)(3). In agreeing with the judge that the infer-
ence was warranted that the Respondent learned
that Arias had signed a union authorization card,
we conclude that the judge properly relied—as
part of the basis for his fmding—on the Respond-
ent's interrogation of various employees, including
employee Dominick Lauriano, about card signing
and its statements to several other employees indi-
cating that it knew of their having signed cards.
We further rely on the fact that Arias was dis-
charged at the same time and for the same reason
as employee Lauriano—a reason that the judge and
we have found does not withstand scrutiny as it ap-
plies to Lauriano. Given the close parallel between
the treatment of Lauriano and the treatment of
Arias and the absence of any evidence that the
reason given for Arias' discharge was any more
supportable as it applied to him, we find that there
In accordance With our decision in New Horizons for the Retarded, 283
NLRB 1173 (1987); Interest on and after January 1, 1987, shall be com-
puted at the "short-term Federal rate" for the underpayment of taxes as
set out in the 1986 amendment to 26 U S.C. § 6621. Interest on amounts
accrued prior to January 1, 1987 (the effective date of the 1986 amend-
ment to 26 U.S.C. § 6621), shall be computed in accordance with Florida
Steel Corp., 231 NLRB 651 (1977).
3 We shall require the Respondent to remove from its files any refer-
ence to the unlawful discharges of Dominick Lauriano and Jorge Arias
and to notify the employees that it has done so. Sterling Sugars, 261
NLRB 472 (1982).
4 Palby Lingerie, 252 NLRB 176 (1980); ITT Automotive Electrical Prod-
ucts Division, 231 NLRB 878 (1977)
288 NLRB No. 146
1280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
is no basis for resolving the two discharge allega-
tions differently.5
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge set forth in his supplemental decision as
modified below, and orders that the Respondent,
Multimatic Products, Inc,, Plainview, New York,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Insert the following as paragraph 2(d) and re-
letter the subsequent paragraphs.
"(d) Remove from its files any reference to the
unlawful discharges of Dominick Lauriano and
Jorge Arias and notify the employees in writing
that this has been done and that the discharges will
not be used against them in any way."
2. Substitute the attached notice for that of the
administrative law judge.
MEMBER CRACRAFT, concurring in part and dis-
senting in part.
While I agree with the judge that the Respond-
ent unlawfully discharged Dominick Lauriano and
failed timely to reinstate Eileen Darcy, I would not
adopt his finding that the Respondent unlawfully
discharged Jorge Arias.'
Arias and Lauriano both started work on Febru-
ary 20, 1978. That day they both signed union au-
thorization cards at lunch. After lunch one of the
Respondent's principals, Jack Kipnes, unlawfully
interrogated Lauriano and learned that he had
signed a union authorization card. Immediately
thereafter Kipnes had a conversation with Arias.
At the end of the day on February 20, 1978, both
Arias and Lauriano were discharged by the Re-
spondent.
An s never testified, and there is no other evi-
dence in the record as to what was said or whether
Kipnes knew that Arias signed a card.
Nevertheless, the judge inferred that (1) Kipnes
interrogated Arias about the Union and (2) Kipnes
learned that Arias signed a card. Based on those in-
ferences, the Respondent's union animus, and the
timing of the discharge, the judge found that the
5 We, however, do not adopt fn. 113 of the judge's supplemental deci-
sion to the extent that it intimates that the Board should take into consid-
eration for remedial purposes the purported refusal to cooperate by Arias
in the General Counsel's preparation for trial.
In addition, I find it unnecessary to pass on the judge's finding that
Regional Office personnel should have informed the Respondent of alle-
gations that the Union engaged in misconduct in the solicitation of union
authorization cards because the Respondent has not demonstrated that it
was prejudiced and because there was technical compliance with the Ca-
sehandling Manual and the Board's Rules and Regulations.
I also join my colleagues in relying solely on the Union's failure to
achieve majority status as the reason for not granting a bargaining order.
I agree with my colleagues m all other respects.
General Counsel made a prima facie showing suffi-
cient to support the further inference that Arias'
union activity was a motivating factor in the Re-
spondent's decision to discharge him The judge
also found that the Respondent did not meet its
burden of showing that it would have discharged
Arias even in the absence of his union activity.
I do not agree with the judge's piling of infer-
ence upon inference to support a finding that the
General Counsel established a prima facie case. Be-
cause Arias did not testify, and no one overheard
Kipnes' conversation with him, I find the evidence
insufficient to show that the Respondent knew of
Arias' union activity when it discharged him. Al-
though the circumstances surrounding Arias' dis-
charge are suspicious, it is well established that
"mere suspicion cannot substitute for proof of an
unfair labor practice." Kings Terrace Nursing Home,
229 NLRB 1180 (1977). Accordingly, I find that
the General Counsel had not met her burden of es-
tablishing that Arias' union activity was a motivat-
ing factor in the Respondent's decision to discharge
him and would dismiss that allegation of the com-
plaint.
APPENDIX
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 ordered 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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT do anything that interferes with,
restrains, or coerces you with respect to these
rights. More specifically,
WE WILL NOT coercively interrogate you con-
cerning your union activities and sympathies.
WE WILL NOT threaten and warn you with dis-
charge and with plant closure if you engage in
union activities or become members of a union.
WE WILL NOT create among you the impression
that your union activities are under surveillance.
MULTIMATIC PRODUCTS 1281
WE WILL NOT expressly and impliedly promise
more wage increases if you refrain from joining or
supporting a union,
WE WILL NOT urge and direct you to allow us to
sponsor a labor organization of our own choosing.
WE WILL NOT discourage membership or activi-
ties on behalf of Industrial Trade Union Local 231,
International Union of Dolls, Toys, Playthings,
Novelties and Allied Products of the United States
and Canada, AFL--CIO, or any other labor organi-
zation, by discharging or failing to reinstate you in
a timely fashion or otherwise discriminating against
you in your hire or tenure.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Dominick Lauriano and Jorge
Arias immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make them and
Eileen Darcy whole for any loss of earnings and
other benefits resulting from their discharges, or
failure to be timely reinstated, less any net interim
earnings, plus interest.
WE WILL notify Dominick Lauriano and Jorge
Arias that we have removed from our files any ref-
erence to their discharges and that the discharges
will not be used against them in any way.
MULTIMATIC PRODUCTS, INC.
Stanley L. Goodman, Esq. and Max Schwartz, Esq., for
the General Counsel.
Michael I. Bernstein, Esq. (Benetar, Isaacs, Bernstein &
Schair), of New York, New York, for the Respondent.
Stuart N Altman, Esq. (Stuart N. Altman & Assoc., P.C.),
of Elmhurst, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN, Administrative Law Judge. On a
charge filed on March 1, 1978, by Industrial Trade
Union Local 231, International Union of Dolls, Toys,
Playthings, Novelties and Allied Products of the United
States and Canada, AFL-CIO (the Union or the Charg-
ing Party),' the General Counsel of the National Labor
During the course of the hearing the Charging Party was represented
by various other legal counsel: From August 28, 1978, the first day of
these proceedings, until February 5, 1979, by Sanford E. Pollack, Esq.,
Lloyd Somer, Esq., Moshael J. Straus, Esq., and Stewart N. Altman,
EN, of Gutterman & Pollack, Esq., of Valley Stream, New York; and
commencing on February 5, 1979, until the last day of the hearing on
February 26, 1979, by Robert Jay Dinerstein, Esq., and Stewart N.
Altman, Esq., of Robert Jay Dinerstem Associates, P. C., of Carle Place,
New York.
Relations Board, by the Regional Director for Region
29, Brooklyn, New York, duly issued a complaint and
notice of hearing on March 31, 1978, against Multimatic
Products, Inc. (the Respondent), alleging that the Re-
spondent engaged in certain unfair labor practices within
the meaning of Section 8(a)(1), (3), and (5) of the Nation-
al Labor Relations Act (the Act). On April 12, 1978, the
Respondent, by counsel, filed an answer denying the ma-
terial allegations in the complaint.
A hearing was held before me in Brooklyn and Plain-
view, New York, 2 beginning on August 28, 1978, and
concluding on February 26, 1979. 3 At the commence-
ment of the hearing the General Counsel moved to
amend the complaint to withdraw the allegations therein
"concerning the discriminatory discharge and failure to
[reinstate] employees Robert Andrew Papandrew and
Eric Holmgren." There being no objections thereto, I
granted the motion to amend the complaint accordingly.
The complaint was also amended during the hearing on
motion by the General Counsel to withdraw the allega-
tion of unlawful discharge concerning Eileen Darcy, but
continuing the assertion therein that her failure to be
timely reinstated to her former job after she had volun-
tarily left the Respondent's employ was violative of Sec-
tion 8(a)(3) of the Act. Also during the hearing the Re-
spondent moved to dismiss the complaint for failure of
proof or in the alternative,
. . . to declare a mistrial on the ground that the Re-
spondent has been severely prejudiced by the failure
of the government to disclose evidence of this
nature at a trial when the government at the time
was aware of it, evidence which had a direct bear-
ing on many of the events and allegations here in
question, evidence which ties in directly with the
credibility of the essential witnesses, evidence
which, had it been made public at the time it was
discovered, may well have changed the course of
this proceeding.
I denied the motion.
All parties were afforded full opportunity to appear, to
introduce evidence, to examine and cross-examine wit-
nesses, to argue orally on the record, and to file briefs.
Thereafter, the General Counsel and the Respondent
filed briefs. In its brief the Respondent renewed its
motion to dismiss the complaint or in the alternative for
a mistrial,
2 The hearing was initially commenced in Brooklyn, New York, on
August 28, 1978, but at the request of the parties was transferred to
Plamview, New York, on August 29, 1978, where it was held thereafter
to cOnclusion.
3 The hearing was originally concluded on September 28, 1978. How-
ever, by order dated November 17, 1978, granting the Respondent's
motion to reopen the record on the basis of newly discovered evidence,
dated November 2, 1978, the hearing was reopened and continued from
December 11, 1978, until February 26, 1979, when it was finally closed.
The motion to reopen the record was granted over the objection of the
Charging Party, and the General Counsel not opposing this motion. This
hearing comprised some 15 days of trial with a transcript of 2475 pages
and numerous exhibits,
1282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
• . . based upon the fraudulent misconduct of the
Union officials and the government's failure to dis-
close such fraud. As evidenced by the repeated at-
tempts of the Union officials to evade cross-exami-
nation, once the hearing was reopened, by conven-
ient—albeit unconvincing—lapses in memory on the
ground that a year had passed since the incidents in
question, respondent was indeed substantially preju-
diced by such suppression and fraud.
For the following reasons, I deny the Respondent's mo-
tions to dismiss the complaint in its entirety or, in the al-
ternative, for a mistrial.
On the entire record and the briefs of the parties, and
on my observation of the witnesses, I make the following
FINDINGS OF FACr
I. THE BUSINESS OF THE RESPONDENT
The Respondent, at all times material, has been a cor-
poration organized under and existing by virtue of the
laws of the State of New York, maintaining its principal
office and place of business at 115 Newtown Road and
39 Sheer Plaza, Plainview, New York, where it is, and
has been continuously, engaged in the manufacture, sale,
and distribution of precision machine parts, plastic mold-
ings, and related products.4
In the course and conduct of the Respondent's busi-
ness operations during the preceding 12 months, these
operations being representative of the operations at all
times material, the Respondent caused to be manufac-
tured, sold, shipped, and transported from its Plainview,
New York plant products valued in excess of $50,000
from its place of business in interstate commerce directly
to States of the United States other than the State of
New York in which it is located. The complaint alleges,
the Respondent admits, and I find that the Respondent is
now, and has been at all times material, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
Further, at all times material, Jack Kipnes was and is
the Respondent's president, Irving Kipnes is its secre-
tary-treasurer, and Arthur Zabiela and Frank Savana are
the Respondent's plant supervisors.5
The complaint alleges, the Respondent's answer
admits, and I find that the above-named persons are su-
pervisors within the meaning of Section 2(11) of the Act,
and have been and are now agents of the Respondent
acting on its behalf.
IL THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I
find that Industrial Trade Union Local 231, International
Union of Dolls, Toys, Playthings, Novelties and Allied
Products of the United States and Canada, AFL-CIO, is,
4 The Respondent corporation is owned as follows. Jack Kipnes (presi-
dent) owns 50 percent, Irving Kipnes (secretary-treasurer) owns 25 per-
cent, and Sidney Kipnes owns 25 percent. The evidence shows that Jack,
Irving, and Sidney Kipnes are brothers.
5 The parties here stipulated that Henry Carl and Paul Rosenhcht are
also supervisors as defined in the Act.
and has been at all times material, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges, in substance, that the Respond-
ent violated Section 8(a)(1), (3), and (5) of the Act by in-
terrogating its employees concerning their membership
in, activities on behalf of, and sympathy in and for the
Union; by warning and directing its employees to refrain
from becoming or remaining members of the Union and
from giving any assistance or support to it; by threaten-
ing its employees with discharge and other reprisals if
they signed cards designating the Union as their collec-
tive-bargaining representative, or if they became or re-
mained members of the Union or gave any assistance or
support to it; by creating the impression of surveillance
of the meeting places, meetings, and activities of the
Union, and the concerted activities of its employees con-
ducted for the purpose of collective bargaining and other
mutual aid and protection; by discharging its employees,
Hector Lopez, Dominick Lauriano, Jorge Arias, Luz
Fuentes, and Maria Vazquez, 6 and failing and refusing to
reinstate them and by failing and refusing to reinstate its
employee Eileen Darcy until about March 3, 1978, be-
cause they joined and assisted the Union and engaged in
other concerted activities; and by refusing and continu-
ing to refuse to recognize and bargain collectively with
the Union as the exclusive collective-bargaining repre-
sentative of its employees in an appropriate unit. The Re-
spondent denies these allegations.
A. The Evidence
The Union commenced its campaign to organize the
Respondent's employees in late January 1978. 7 Accord-
ing to the testimony of Alex Musachio, 5 the Union's
president; Hector Lopez, its secretary-treasurer; and Ar-
mando Ponce, a union organizer, 5 authorization cards
were distributed to the Respondent's employees and their
signatures solicited and secured thereon beginning in late
January through February 20, 1978, primarily by Lopez,
Ponce, another employee Hector Lopera, and Alfred
Musachio, the Union's vice president."
6 Maria Vazquez is also known here as Maria Bolta Vazquez.
7 Among the signed authorization cards in evidence are those of
Hector Lopez, dated January 30, 1978; Norma Velazquez, dated January
31, 1978; Ivette Padilla, dated January 29, 1977 (but obviously the card
should read 1978); and Luz Fuentes whose card is dated "1/29/78" (but
the numeral "1" thereon denoting the month it was signed shows signs of
having been altered to or from the numeral "2"). There is also a signed
authonzauon card of Jorge Arias dated "11/20/78." However, Arias
commenced his employment with the Respondent on February 20, 1978,
and he was terminated that same day. It is thus reasonable to infer that
the date actually meant on his card is February 20, 1978. Also, see the
testimony of Alex Musachio and Hector Lopez concernmg the period of
the Union's orgamzational campaign. Unless otherwise noted, all dates
are m 1978.
8 Musachic testified as a witness for the General Counsel.
9 Both Lopez and Ponce were also employees of the Respondent in
late January and February 1978 while at the same time being paid em-
ployees of the Union
The following signed and dated authorization cards are in evidence:
Hector Lopez (1-30-78); Joe Diaz (2-14-78); Edison Taborda (2-14-78);
Maria a Vazquez (Bolta) (2-20-78); Lillian Cruz (2-15-78); Luz Silveno
Continued
MULTIMATIC PRODUCTS

1283
1. The Union's request for recognition and
bargaining
It should be noted at the outset that both the General
Counsel and the Union contend that the request for rec-
ognition and bargaining was made on Monday, February
20, while the Respondent asserts that this actually hap-
pened on Tuesday, February 21.
Alex Musachio testified that on Monday, February 20,
at approximately noontime he appeared at the Respond-
ent's premises to meet his brother Alfred Musachio,
Hector Lopez, and Armando Ponce in the parking lot of
the "Golden something" restaurant near the plant as pre-
arranged.11
Musachio continued that they then went over to the
Respondent's plant, entered the office, and, after identify-
ing himself as the Union's president, he asked a secretary
at the reception window if he could speak to "the em-
ployer." He related that the secretary then walked away
from the window and on her return a few minutes later
reported that the employers were unavailable to meet
with him." Musachio added that he gave her his busi-
ness card and the Union's prepared letter requesting rec-
ognition and bargaining, which he had brought along
with him to the plant, and then he and the other union
officials left the office."
Musachio continued that after leaving the Respond-
ent's office, they waited outside the plant "in front of the
building" for approximately 10-15 minutes whereupon
Irving Kipnes, one of the Respondent's owners, came
out of the office and approached them, He stated that
Kipnes told them that he had read the Union's "recogni-
tion letter" and doubted that the Union represented a
majority of the Respondent's employees. According to
Musachio, he offered to show Kipnes the signed authori-
zation cards that Musachio had brought with him and
asked Kipnes what the Respondent would do if the cards
evidenced such a majority, to which Kipnes responded
that he would haVe to discuss it with his brothers. He re-
(2-2-78); Albert Giammarinaro (2-6-78); Norma Velazquez (1-31-78);
Jim Williams (2-14-78); Eric Holmgren (2-17-78); Robert Andrew Pa-
pandrew (2-17-78); William Bonfante (2-13-78); Amanda Lopera (2-14-
78); Hector Lopera (2-14-78); Dominick Lauriano (2-20-78), Jorge Arias
(11-20-78); Nicholas Melara (2-14-78); Victor Emanuelo (2-13-78);
Esther Lopez (2-1-78); Mercedes Livingston (2-1-78); Randolph Woods
(2-3-78); Armando Ponce (2-1-78); Steven Ezegelian (2-20-78); Patricia
Walker (2-20-78); Eileen Darcy (2-20-78), John Adams (2-14-78); Keith
E. Baker (2-14-78), Carmen Segreto (2-14-78); Ivette Padilla (1-29-77);
Sol Maria Cabrera (2-5-78); and Luz Fuentes (1-29-78).
" Musachm testified that the decision to seek recognition from the Re-
spondent that Monday, February 20, had been made by him the previous
Friday, February 17. He stated:
We went out there with a letter of recognition that I was going to
deliver to the employer., . That was the date that we had the ma-
jority of people signed, and I felt that I would give the letter that
particular day, which was a Monday and it was Washington's Birth-
day, and I thought it would be a good day to tell these employees
that if it was a union shop, they wouldn't be working on that par-
ticular date, they would be paid for it.
Musachm could not recall the number of signed authorization cards the
Union had in its possession as of Friday, February 17,1978.
12 Musacluo testified that this secretary was the only person he ob-
served in the outer office at the time, but he could not remember what
she looked like.
13 Musachio could not recall whether he in fact told the secretary why
he was there or explained to her the purpose of the letter or to whom it
should be given.
lated that he gave Kipnes the authorization cards "one
card at a time, which [Kipnes] examined. When he fin-
ished examining it he gave it to my brother [Alfred Mu-
sachio], who was on the other side of him. And we did
that for 31 cards, the same thing." Musachio testified
that Kipnes "was amazed that we had 31 cards signed.
He was just shaking his head and going, 'I never thought
you had so many cards.'" 4 Musachio added that while
this was transpiring, Armando Ponce and Hector Lopez
were standing nearby with two other employees whose
names she could not remember.
Musachio related that after Kipnes had finished view-
ing the cards he turned to Hector Lopez and said,
"You're fired. You're no longer working here." He
stated that Kipnes then reentered the plant and soon
thereafter returned to the gronp of union officials and
gave Musachio back the business card that Musachio had
previously left with the office secretary and on the back
of which was now written the telephone number of Joe
Kipnes whom Irving Kipnes identified as the Respond-
ent's attorney. Musachio was advised by Kipnes to call
Joe Kipnes "and make an arrangement" with him. Musa-
chio added that he asked Kipnes to reinstate Lopez to
his job but that Kipnes refused to do so, whereupon
Kipnes left the group reentering the building and Musa-
chio left the plant area.
Musachio testified that on his return to his office he
telephoned Joe Kipnes and a meeting was arranged be-
tween the parties for the following evening, Tuesday,
February 21, at 6 p.m. at Pier 52, a restaurant owned by
Joe Kipnes and located in the Borough of Manhattan,
New York." He stated that on Tuesday, however, his
secretary received a telephone call from Joe Kipnes can-
celing the meeting for the reason that the Kipnes broth-
ers had now refused to meet with the Union.
Musachio continued that around noontime on Tues-
day, February 21, he and his brother Alfred returned to
the Respondent's premises where they met Hector
Lopez, Armando Ponce, and a group of "15, 20" em-
ployees. He stated that he noticed that "the employers"
were watching them as they spoke to the employees,
some of whom now advised him that Irving and Jack
Kipnes had been asking employees if they had joined the
Union or signed union authorization cards and had
threatened to discharge any employee who did so. 16 Mu-
sachio related that Irving Kipnes then came out of the
plant and invited the Musachios into the Respondent's
office. 17 Musachio testified that Kipnes "asked me what
would be in the union contract. And I told them addi-
tional holidays. . . I said there probably would be more
14 Musachio testified that when he met with the other union officials at
the Respondent's plant that day, they had given him additional signed au-
thorization cards bringing the total of cards in his possession to 31.
15 This meeting was to include Jack Kipnes, Irving Kipnes, and Joe
Kipnes representing the Respondent and Alex Musachio for the Union.
" Musachio also testified that on the previous day, Monday, February
20, he had been informed by "my officials" (probably Hector Lopez and
Armando Ponce) that "the employers and supervisors" had been engag-
ing in "some surveillance" of employees.
h1 testified that at this point he requested that the Respond-
ent "please put the people back to work that were fired," but without
success.
1284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
[sick leave days]. I said a committee of workers chosen
by the employees would probably have other demands
such as wages and other conditions of employment," and
after he had finished the Kipnes brothers said "they
would get back to me at another date." Musachio added
that on his return to the Union's office he learned from
his secretary that Joe Kipnes had telephoned and can-
celed the conference meeting scheduled for that
evening.' 8
The testimony of Hector Lopez" concerning the
above while generally similar in nature to that given by
Musachio did in some instances differ and was also more
detailed. He testified that he had reported to work on
Monday as usual and about 12:25 or 12:30 p.m. he
"punched out" for lunch 2° and met Alex and Alfred
Musachio and Armando Ponce at the parking lot of the
Golden Leaf Restaurant as prearranged the previous
Friday. 21 According to Lopez, Musachio brought with
him the signed authorization cards and the Union's letter
requesting, recognition and they proceeded to the Re-
spondent's plant and entered the office.22
Lopez related that Musachio identified himself to the
secretary present in the office as the Union's president,
gave her his business card and the Union's letter request-
ing recognition, and asked to see "the employer." 23 He
stated that she went into an inner office and a few min-
utes later returned to announce that "The employer is
not available," whereupon Musachio left his card and the
Union's letter of recognition with her and the union offi-
cials exited the building. Lopez continued that they
waited outside talking among themselves, being now
joined by employee Hector Lopera, whereupon about
"five, ten minutes" later Irving Kipnes came out of the
office and approached them. He added that he also ob-
served Jack Kipnes at this time standing at the side door
entrance to the plant where the employees usually enter
and leave, watching what was transpiring.
Lopez testified that Irving Kipnes had the Union's
"letter of recognition" in his hand and told Alex Musa-
chip that he "didn't believe he had the majority of the
people signed." He stated that Musachio offered to show
the signed authorization cards to Kipnes and "That's
when Mr. Musachio started showing him the cards one
at a time, which he handed to Mr. Irving Kipnes and
is Musachio also testified that he learned of the cancellation of the
meeting scheduled for Tuesday evening, February 21, prior to his visit to
the Respondent's plant that day.
12 Lopez, called as a witness for the General Counsel, is secretary-
treasurer of the Union and from January 30 until February 20, 1978, was
employed by the Respondent as a glazer.
20 Why Lopez "punched in or out" at lunchtime was never clearly ex-
plained here as every employee witness who testified subsequently stated
that they were not required to do so by the Respondent nor had they
actually ever punched in or out for a lunchbreak.
21 Lopez testified, "We decided to come to the firm on a holiday,
which is the 20th, George Washington's birthday, and present the compa-
ny with a letter of recognition. . . I knew we had a majority of the
people signed." He added, "Well, as we were getting cards signed by the
employees, we used to turn them over to Mr Musachio."
22 Lopez testified that just before entering the office they met two of
the Respondent's employees, one of whom was Hector Lopera, and they
told these employees that the Union was going to present its request for
recognition to the Respondent then and there.
23 Lopez described the secretary as "a heavy-set woman in her late
50's. I think glasses"
then Mr. Kipnes handed them to Mr. Alfred Musachio."
Lopez testified that after ICipnes had viewed all the
cards, "He pointed at me and said I was fired."24 He
added that Alex Musachio requested that Kipnes "put
me back to work," but Kipnes refused and then left and
reentered the plant. According to Lopez, about 5 or 10
minutes later Kipnes returned, gave Alex Musachio back
his business card with the telephone number of Joe
Kipnes written on it, identifying Joe Kipnes as the Re-
spondent's "attorney," and instructed Musachio to call
Kipnes.
Armando Ponce, a union business agent and, at the
very same time, employed by the Respondent from Janu-
ary 18 to February 22, 1978, testified that on Monday,
February 20, about 12:30 p.m. he was proceeding to the
Golden Leaf Restaurant to have his lunch when he saw
Alex and Alfred Musachio at the Respondent's plant.25
He stated that they called him over and Alex Musachio
asked him if any additional signed authorization cards
had been obtained and Ponce answered affirmatively."
Ponce related:
Alex asked me, "Are you sure we got the majority
of the people?" And my answer was, "Yes." He
said to me, "Do you feel like going into the compa-
ny now and asking for recognition?" And my
answer was, "Yes." And then he say, "As soon as
Hector [Lopez], you know, show up, we all go in."
Ponce added that Hector Lopez was attempting to
secure additional employee signatures on authorization
cards at this time and while Ponce was talking to Alex
Musachio he noticed that the "employers were observ-
ing, seeing what was taking place." According to Ponce,
Lopez soon joined them and the union officials then en-
tered the plant office and his account of what transpired
therein is substantially similar to that given by both Alex
Musachio and Hector Lopez.
However, Ponce's account of what happened subse-
quently after they left the Respondent's office, while dif-
fering only slightly from that given by Musachio and
Lopez, has some significance. He testified that after leav-
ing the office they gathered at the factory entrance
driveway and were "talking among ourselves." 27 Ponce
24 Lopez testified that he had never told Irving Kipnes that he was a
union official and as far as he knew up until that time Kipnes was un-
aware of this.
25 Ponce was "definitely sure" that the event concerning the Union's
request for recognition occurred on February 20. However, in an affida-
vit previously given to a Board agent dated March 3, 1978, Ponce had
stated that this event happened on February 21. But again in a later
Board affidavit dated August 2, 1978, Ponce indicated that this incident
took place on February 20 He explained this contradiction by asserting
that he had recorded the date of the Union's recognition demand as Feb-
ruary 20 on his office wall calendar and had made a note to himself about
this fully realizing the importance of the date and that was how he could
advise the Board's agent when he gave his second affidavit that the cor-
rect date was February 20. Ponce's questionable explanation of this in-
consistency and the evasive and forgetful nature of his other testimony
concerning what occurred is highly suspicious.
26 Ponce testified that Hector Lopez had advised him either "the day
before or that morning" that additional authorization cards had been
signed by employees
27 Ponce also testified, however, that during this short period while
they were standing outside, Hector Lopez and Alfred Musachio were so-
liciting additional employee signatures on union authorization cards.
MULTIMATIC PRODUCTS 1285
related that approximately 5 minutes later Irving Kipms
came out of the office,
Q. Irving walked right up to you?
A. Well, he wasn't really walking to us. It hap-
pened to have a lot of snow in the road, and the
only entrance that we have is the little piece . . .
the company has cleaned for going in and out. If
you want to go to the other building, he must go
that way. And when he left the office, come over,
Alex Musachio talked to him.
Q. Oh, so you don't know whether or not he was
coming out to talk to you specifically?
A. Not really.
Ponce continued that Musachio told Kipnes that "We do
have the majority of employees signed for the union,"
and after Kipnes registered disbelief, Musachio exhibited
the signed authorization cards to Kipnes in the same
manner as previously and similarly described by Musa-
chio and Lopez.
Ponce testified that although Kipnes was reviewing
the cards, "He was making motions with his head," and
remarked about one card that, "This don't sound right to
me. . . . It must be a new employee." According to
Ponce, Kipnes also indicated that two of the authoriza-
tion cards were signed by the same person. Ponce stated
that after he finished looking at the cards, Kipnes walked
away and "went to the other shop." Although "not
sure," Ponce believed that Jack Kipnes was standing by
the side door to the plant while this was happening, ob-
serving what was taking place. He related that just
before Kipnes walked away he turned to Hector Lopez
and said, "By the way, you are fired," and although
Alex Musachio "tried to reinstate him, you know, talk to
Irving to put him back to work," ICipnes refused to do
$0. 29 Ponce added that he then returned to walk and
Alex and Alfred Musachio went towards their parked
car.29
28 Significantly as will appear later, in his first affidavit given to the
Board, in which Ponce stated that this event occurred on February 21,
Ponce, while reciting similarly what had occurred otherwise, failed to
mention that Hector Lopez was fired by Kipnes as he now described
above.
29 While unable to recall the date it happened, though he stated that it
occurred after Musachio had shown Irving Kipnes the signed authoriza-
tion cards, Ponce i elated that during the early afternoon of a working
day he overheard Irving Kipnes tell an employee named "Roger" that he
was "missing too much time from work" and that Kipnes knew that he
had signed a union authorization card. Ponce continued that when Roger
denied having signed a card Kipnes responded, "You know I have
enough evidence on you to let you go night now, if you signed applica-
tion card or without signing application card, so you better know what
to do." Ponce added that Roger finished work that day and "never came
back."
Ponce also testified that on the same day "after [Kapnes] got finished
with Roger" he came over to Ponce at his worktable and told Ponce that
he wanted to speak to him. Accordmg to Ponce, the following conversa-
tion ensued:
He say to me . . "You know, there are a lot of things going on."
I say, "I don't know what you're talking about!" He say, "You know
what's going on." I say, "Yes, we both know what's going on." He
say, "Have you signed or have you seen anybody sign a union
card?" And I say, "Yes, we have." And then he say to me, "Why
don't you do me a favor? Go home at five o'clock and don't bother
to come back any more!" I look at him. I don't usually do that favor
to anybody. "That's up to you if you want to let me go, that's up to
Hector Lopera, called as a witness for the General
Counsel and identified by Lopez as being one of the two
employees also present on February 20, when the union
officials allegedly appeared at the Respondent's plant to
seek recognition, testified that he could not recall if he
had worked on February 20, and did not, "at any point
see the union showing any authorization cards to Irving
Kipnes." 3° Alfred Musachio did not testify in this pro-
ceeding at all.
Regarding these events, the Respondent's witnesses
told a different story. Irving Kipnes testified that on
Monday, February 20, at lunchtime (between 12:30 and 1
p.m.) "I saw some people handing out cards at the time
outside." He stated that it was a cold day, following a
heavy snowstorm, and during the "two minutes" he
stood outside near the side door or employee en-
tranceway to the plant, he did not notice any of the Re-
spondent's employees accepting or receiving these
cards. 31 Kipnes related that somebody had come into the
office during lunchtime and told him that "they are
handing out cards outside thc plant near the entrance"
and he had gone outside to verify this and to "determine
if they were obstructing the entranceway into the plant"
or threatening or coercing employees. Kipnes added that
after he reentered the office his brother Jack then went
outside "to see what was happening," and on his return
they discussed what appeared to be an attempt by a
union to organize the Respondent's employees. He re-
counted that sometime later that day on his return to the
office after visiting the Respondent's mold plant located
across the street he was told by his brother Jack that the
union demands were to be "one dollar an hour" wage in-
crease, a dental plan, and better medical benefits.
According to Irving Kipnes, nothing else concerning
the Union happened that day and the events testified to
by the previous witnesses for the General Counsel, Mu-
sachio, Lopez, and Ponce, actually occurred on Tuesday,
February 21, 1978, not on Monday, February 20. His ac-
count of what transpired on February 21, is as follows:
Kipnes arrived at the plant at approximately 9 a.m. on
Tuesday morning, February 21, 1978, and soon thereafter
went to the molding plant, which is one of the plant op-
erations under his jurisdiction." While returning to the
you." Then he walked away from me. That was the end of the con-
versation at that time
According to Ponce, Kipnes also said, "I understand that a lot of em-
ployees have signed application cards for the union." Ponce added that
he reported for work the next day.
39 At no time during his testimony did Lopera confirm in any way the
testimc,.y of Musacluo, Lopez, or Ponce concerning what was alleged to
have occurred on February 20, 1978
31 In an affidavit dated March 2, 1978, given to a Board agent, howev-
er, ICapries stated:
Monday afternoon [February 20, 1978] was the first time I became
aware that Local 231 was attempting to organize the employees. I
saw some union cards being handed outside the plant area along the
driveway on the side of the buildmg. Someone—I don't recall
whom, showed us a card and that's when I went outside and saw the
csds heing handed out.
32 Kipnes testified that he is responsible for the "Poly Decor" division
of the Respondent's operations, which is located in a plant across from
the main building and which produces polyurethane doors, clocks, and
decorative wall products, Jack Kipnes is responsible for the operation of
Continued
1286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
office late that morning, he saw Hector Lopez whom he
had discharged the previous day, Monday, February 20,
standing with two other men in the parking lot in front
of the main plant, learning subsequently that these men
were Union Officials Alex and Alfred Musachio Alex
Musachio then approached Kipnes and asked that the
Respondent reinstate Hector Lopez, which Kipnes re-
fused to do explaining that Lopez' "productivity was
low, he seemed to have an indifference for his job, his
attendance wasn't that great, and I told him that I had
discharged him yesterday and that I had no intentions of
rehiring him." 33 Musachio advised Kipnes that the Re-
spondent would "have to take him back because he was
organizing the people at the plant and this—he used the
term unfair labor practice to me at the time." Musachio
also advised Kipnes that:
He told me that he had the majority of the employ-
ees; and he had a stack of cards showing the em-
ployees that wanted his union to represent them. He
proceeded to show me who the people were on
these cards in a manner where he would take one
card, give you maybe two seconds to look at, and
keep turning cards over to show me that these were
supposedly legitimate cards that he had with him I
did glance at those cards, I did look at them. I no-
ticed some names on the cards. There were names
that I did not know at all, that seemed or appeared
strange to me. In one instance I remember remark-
ing that there seemed to be two cards with the same
name on it."
Kipnes further testified that Alex Musachio:
. . . then pulled me over to a corner or an area
away from the other two, and he tried to give me a
general sales pitch telling me that his union could
be good for our company. He mentioned the word
"sweetheart." He said that we could have a "sweet-
heart arrangement," we could be working togeth-
er. 3 5
Kipnes now told Musachio that he really did not want to
talk to him and that he would give Musachio the tele-
phone number of the Respondent's "advisor," Joe Kipnes
at Pier 52. He then went into the office and soon thereaf-
ter returned to the parking lot and gave Musachio the
telephone number, 36 after which he went on to the
the machine shop, which is housed in the main building, a separate plant
facility; and Sid Kipnes is responsible for the sales and customer relations
segment of the business,
33 A detailed discussion of the evidentiary circumstances surrounding
Lopez' discharge appears subsequently here.
34 Kipnes testified that by "strange" he meant that "I didn't think they
were employees of ours. But in retrospect, when I look back now, I had
been out the previous week [on vacation] there is a possibility they could
have been employees that were hired the previous week and that's why I
probably would not have known." Th.* evidence shows that the Re-
spondent experiences a large and consistent turnover of unskilled employ-
ees m Its plant operations
33 Musachio denied that m any conversation he had with Kipnes he
mentioned a "sweetheart" contract
36 Uncontradicted evidence in the nature of the New York Telephone
Company's telephone message unit records shows that a telephone call
was made from the Union's listed telephone number to a New York tele-
molding plant and by the time he returned to the office
Musachio had left the premises.
Kipnes, continuing his account of what occurred, testi-
fied that later that day "approximately between 12:00
and 12:30 wt. had another visit from Alex Musachio,"
when his secretary Bernice Besser came into their office
and told both brothers that Musachio was in the recep-
tion area and wanted to see them. Kipnes related that
they decided to see him and Musachio was ushered in to
the office accompanied by Hector Lopez whereupon
Kipnes told Musachio that he could remain "and talk but
that Lopez had to stay outside because they didn't want
Lopez on our premises." According to Kipnes, Musachio
agreed and while Lopez remained outside in the recep-
tion area, Musachio "tried to then give me the general
sales pitch again regarding the union," suggesting that
Kipnes contact a local company already under contract
with the Union to verify "what kind of union we are."
He stated that Musachio questioned him about the Re-
spondent's current medical plan, its cost and coverage,
and as to what benefits its employees enjoyed, and indi-
cated that the Union's medical plan "would be cheaper,"
adding that the Union would require 15 paid holidays in-
stead of the 9 currently being provided and "about five
paid sick leave days" instead of the 2 the employees then
had. Kipnes added that he told Musachio that "we heard
what you have to say and we will be in touch with
you," and it was then that Musachio gave him "this
letter of recognition" and left.37
Jack Kipnes testified that he first learned about the
Union's organizational campaign among the Respond-
ent's employees on Monday, February 20, when during
lunchtime "someone brought me a card and said these
gentlemen handed the card out." Kipnes stated that Yis
brother Irving went outside to see what was happening
and on his return to the office related that he had ob-
served "some people out there." He continued that he
then went outside the plant and observed "three men
standing abreast" by the side of the building. He added
that while he assumed that these men were union repre-
sentatives" there to distribute authorization cards, "I did
not see anybody receiving a card or anybody giving out
a card."" His testimony contains nothing further with
phone number listed for Joe Kipnes, at 10.20 a m on Tuesday, February
21. Although it is interesting to note the lack of any record of a call by
the Union on Monday, February 20, to any of the telephone numbers al-
leged to be listed to Joe Kipnes, there is testimony to the effect that the
telephone company's older recording equipment, which might be applica-
ble to at least one of these telephone numbers, does not record certain
types of calls concerning the telephone number to which the calls were
made.
37 See R. Exh. 28 While the letter is typed except for Alex Musachio's
signature, significantly the "day" portion in the date segment of the letter
is handwritten in as "20."
38 Kipnes testified that he subsequently learned that one of these men
was Alfred Musachio, the Union's vice president_
39 However, in an affidavit dated March 2, 1978, given to a Board
agent during the investigatory stage of this proceeding Kapnes stated that,
"I did see the union people handing out cards at lunchtime to employees
who were at lunch." ICipnes attempted to explain this discrepancy by as-
serting that he had actually told the agent that he merely assumed that
the union representatives were distributing authonzation cards to employ-
ees or that in the alternative the Board's agent had failed to take down
Continued
MULTIMATIC PRODUCTS 1287
regard to anything involving either he or his brother
Irving and Union Officials Alex or Alfred Musachio on
that day.
Kipnes continued that on Tuesday morning, February
21, his brother Irving informed him that he had viewed
the signed authorization cards of various employees. He
stated that he then telephoned Joe Kipnes and told him
that the Union was attempting to organize the Respond-
ent's employees. He added that Joe Kipnes advised him
to have the Union's representatives call Kipnes at his
office in New York City.
Howard Kipnes, an employee and son of Jack Kipnes,
testified that on Monday, February 20, he had lunch
with his father and uncle in the office and during this
time there was no discussion about the Union nor did
anyone come into the office to advise the Kipneses that
the Union was soliciting the signatures of the Respond-
ent's employees on authorization cards outside the plant.'
However, Kipnes subsequently changed his testimony
and stated that just prior to lunch he had been delivering
unfinished doors to the molding plant and on his return
to the office noticed "several people handing out cards"
to employees. He added that he told his father about this
when he entered the office.
Bernice Besser, employed by the Respondent as a sec-
retary, testified that on Tuesday, February 21, 4° "the
day after a rumor—when someone told me about the
signing of the cards," Alex Musachio appeared at the
main office receptionist's window with Hector Lopez
and asked to see Jack or Irving Kipnes." Besser related
that Musachio told her "he was from the union." 42 She
continued that she informed the Kipneses that Musachio
had requested to see them and they advised her to send
Musachio in. However, when they saw that Lopez was
with him they asked Lopez to leave and to remain out-
side, which he did. Besser added that although unsure as
to when it actually happened, after the meeting with Mu-
sachio, Irving Kip nes had given her the Union's letter re-
questing recognition to photocopy.43
Joseph Kipnes44 testified that he was contacted in
February 1978 "sometime either the 22nd or before" by
everything he said during the conference and include it in the affidavit.
Kipnes' testimony concerning this was equivocal, guarded, and less than
convincing.
40 Besser was sure about this date because on Monday, February 20,
1978, there was a "rumor in the shop about people signing union cards,"
and Musachio had visited the Respondent's office the very next day.
Besser testified that this occurred "between 12 00 and 1.00, closer to
12:00 since her lunch hour is between 1-00 and 2.00 and the other secre-
taries have their lunch hours between 12 00 and 100."
42 Besser testified that Musachio had been to the office on other occa-
sions with Armando Ponce
43 Besser denied that Musachto had given her any paper or document
at the time he visited the office. Her testimony concerning when she re-
ceived the letter and the day that Musachto appeared at the Respondent's
office seemed contrived, not based on any recollectively substantial fact
and appeared designed more to aid her employer's position than to
present the truth of the matter.
44 Joseph Kipnes is a cousin of the Kipnes brothers and is in the res-
taurant and theatrical business. Because he presumably has a knowledge
of business and labor relations, he is consulted at times by the Respond-
ent concerning problems in these areas.
Jack Kipnes concerning a labor problem the Respondent
was experiencing, that the Union was attempting to orga-
nize the Respondent's employees. He stated that Alex
Musachio telephoned him the same day and advised him
that the Union was engaging in an organizational cam-
paign at the Respondent's plant. 43 Kipnes continued, "I
thought it would be best if we all can sit down and talk
face to face and see what it's all about" and he therefore
scheduled a meeting for Wednesday, February 22, at 6
p.m." He added that Jack Kipnes called him either
"that same day or the day before" and told him that they
could not meet with Musachio as arranged. He related
that he then telephoned Musachio and canceled the
meeting. 4 7
Concerning this, Irving Kipnes testified that Joseph
Kipnes had arranged the meeting between the Respond-
ent's and the Union's representatives without the Kipnes
brothers' consent, though his testimony implies that
when the meeting was first arranged, they had not ini-
tially opposed it." He stated that "We discussed this
with our lawyer at the time, and. . . he didn't advise us
to have a meeting of any sort with this union." He added
that "We told Joe that we were not going to be at that
meeting" and it was canceled Jack Kipnes testified that
the meeting "could have been cancelled Tuesday after-
noon, early Wednesday, around that time it could have
been cancelled. I don't really recall. It had to be one of
those two times."
What Additionally Occurred
Concerning Eileen Darcy
Eileen Darcy, employed by the Respondent from
August 1977 until August 1978, testified that on Febru-
ary 20, 1978, when she returned from lunch with another
employee, Patricia Walker, at approximately 12:55 p.m.,
she was asked to sign an authorization card for the
Union to secure an "increase in wages and, you know,
health and dentist benefits." She stated that she signed
the authorization card and returned it to the man who
had given it to her." Darcy related:
42 On cross-examination, however, Kipnes could not recall whether he
called Musachio or Musachio telephoned him. He believed that Jack
Kipnes had told him that Musachio was given his telephone number and
told to contact him as the "company's advisor."
46 Kipnes testified that "Well, I'm qwte busy, and have quite a few
appointments, and I enter most of my appointments in my diary." He
produced his diary, which contains the entry "6 .00 p.m., Alex Musachio"
on the page dated February 22, 1978. It should be noted that the diary
also contained an entry on the dated page February 21, 1978, "5:45-pin.
Friar's membership meeting."
47 Kipnes testified that he and Musachw had telephone conversations
"two to three to four times," since Musachio wanted the meeting to be
held out on Long Island and that all these conversations occurred before
the meeting was canceled and none thereafter. After he was told, howev-
er, that the New York Telephone Company's records show calls from
the union office to him after February 22, he was unsure as to whether
he had any further telephone conversations with Musachio thereafter.
48 He testified that Jack Kipnes, Joseph Kipnes, himself, and Alex Mu-
sachio were to have been present at this meeting and the purpose thereof
was "To have a general discussion regarding the union that Alex was
trying to bring into our plant."
42 Darcy could not remember "the man's name and what he looked
like," but later in her testimony she stated that it was either Alex or
"Continued
1288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Oh, well, I had intentions to put down Barbara
Stanwyk on it, but I put my own name on it. I
asked the guy, the union guy, if the bosses knew
about it and if it was okay and if I could get fired
for it. And the union guy said no, they knew about
it. It's all right honey. Just put your name down
here and where you live. So I did that. With the in-
tention that the bosses knew about it, it was okay, it
was fine with me. . . . if I knew it was going to
hurt Multimatic in any way, I wouldn't have signed
the card."
Darcy continued that she and Walker then entered the
plant and returned to their work area.
Darcy testified that soon thereafter Cynthia Donnelly,
a fellow employee and friend, asked her and Walker if
they had signed authorization cards and when they ac-
knowledged doing so. Donnelly said, "We shouldn't
have, you know, signed the cards because we could get
fired." 51 Darcy stated, "Well, after that, / walked out-
side and tried to get back the cards from one of the
union men there, and he said it was against the law." She
continued:
I saw [Irving Kipnes] and some of the union men
talking together. I walked over, and I waited until
Iry stopped talking. Then Iry left. I am not sure,
but I think I asked the union man first if I could
have my card back. Then he said, you know, no, it
was against the law. So I ran after Ir y and I asked
him if it was all right. And Iry said it was up to me,
it was my card.52
Darcy related that she reentered the plant and she and
Walker then told Arthur Zabiela, their supervisor, that
they had both signed authorization cards for the
Union." She added that Zabiela said, "we shouldn't
Alfred Musachio or Armando Ponce who had taken her authorization
card and that he had a "big stack" of authorization cards in his hands.
Concerning her card she also stated that she "knew what it was for so I
didn't bother reading it."
50 Darcy also testified that because the union representative had told
her that the Respondent knew about its employees signing authorization
cards and that they conk' not get fired for doing so she had signed it
adding, "Why not? You could get better benefits."
51 Darcy testified that she wanted to get her signed authorization card
back because Donnelly had told her, "if they found out we signed the
cards, we could get fired for it." She added that Donnelly had also stated
that "Artie" Zabiela, a supervisor, had told Donnelly that employees
could be fired ft- r signing authorization cards. The evidence shows that
Donnelly is not a supervisor under the Act and there was no claim here
that she is.
52 Later in her testimony, on redirect, she stated that the conversation
between Kipnes and her went as follows:
I asked him if it was okay if I signed the card. And Ir y said, "Do
you want to9" I said, "I signed the card." He asked me why did I do
that for" And I told him I didn't know. Then he asked me where
was my head?
According to Darcy, Kipnes was walking toward the molding plant
when she spoke to him Kipnes testified that Darcy had told him that she
signed an authorization card on February 21, 1978, and at the time had
not asked him for reinstatement. This would enforce Darcy's testimony
that it happened on Monday, February 20, because she had not voluntari-
ly left the Respondent's employ until later that day and therefore would
have no need to request reinstatement at this time.
53 Darcy testified that she also told Marvin Kaplan, the shop foreman,
that they had signed the cards.
have done that. . . I'm going to talk to Jack [Kipnes]."
Darcy continued that she started crying and she and
Walker went into the "girls' room."54
Darcy testified that soon thereafter Zabiela returned
and knocked on the bathroom door and told them that
Jack Kipnes wanted to see both her and Walker in his
office. Darcy recounted what occurred at Kipnes' office
when she, Walker, and Zabiela got there:
Jack said, "What's the matter with you girls? Don't
you like your jobs here? Where are your heads?"
And I said I wanted my job. I said I liked the con-
ditions. That was it. And then he said, you know,
he was going to have to start laying off some
people. He didn't mention any names.
Darcy stated that Kipnes also said, "Artie, I'm sorry, I'm
going to have to close the shop down and that's it." She
added, "That's what he said to Artie, but the other
words were meant for me and Patty." Darcy continued:
. . . And I went out and went back into the girls'
room and punched out because I figured it was
Patty and I, we would—that he'd have to start
laying off some people. so I figured it was Patty
and I who he would start off with, so I went and
punched out. Then I went over to the restaurant
and called Patty, because I was waiting around and
she didn't come out yet.
Darcy testified that she telephoned Walker that
evening and asked Walker to call Zabiela and fmd out if
she could return to work the following day, "and Artie
said not since I punched out on my own accord, I'd have
to wait." Darcy related that she also telephoned the Re-
spondent on several occasions thereafter "to see if I
could come back to work," but unsuccessfully. 55 Darcy
continued that on one occasion she also personally went
to see Jack Kipnes to seek reinstatement and, according
to Darcy:
I just asked him if I could come back to work be-
cause my parents were hassling me about getting
another job. I told him that I wanted to stay with
Multimatic. He said that—he said that he would call
my father and tell him t/H , t very shortly I'd be
coming back to work. He said there was too much,
you know, involvement going around with the
union, that he wasn't hiring anybody at that time.56
Jack Kipnes testified that this conversation took place
on the day of the strike, February 22, 1978, and admittei
54 On cross-examination, however, she was not quite sure as to the se-
quence of events at this point although her account of what transpired
otherwise was consistent.
55 She could not remember the dates and did not testify as to whom
she spoke to.
56 While Darcy could not recall the date of this conversation except
that it was "maybe a week and a half later" after she had left the plant
and while the strike was in progress, she testified that when she went to
the plant that day there was a "help wanted" sign posted, adding, "that
sign has been there ever since I have been working there. They never
took it down."
MULTLMATIC PRODUCTS 1289
that he was disturbed at the time about the strike and the
Union's threats to close down the Respondent's plant.
Darcy also testified that either on Tuesday or Wednes-
day, February 21 or 22, she returned to the plant after
having lunch with her friends, employees Walker and
Donnelly, and while she was sitting alone in her car,
after having dropped Walker and Donnelly off at the
plant, Jack Kipnes came out and asked her "what's the
matter with me, don't I want my job back? I said, 'Yes, I
do.' He asked me why I was striking. He said, 'Yes you
are. You're sitting in the car!" 57 Darcy was unsure as to
whether she had or had not observed Irving Kipnes talk-
ing to any union representatives while she was sitting in
the car on that day.
Patricia Walker, employed by the Respondent as a ma-
chine operator, testified that on Monday, February 20,
she had gone out to lunch with Eileen Darcy at approxi-
mately 12:25 p.m. observing, as she left the plant, a
group of people including union representatives and sev-
eral of the Respondent's employees. 58 She stated that on
their return to the plant after lunch at about 12:50 p.m.,
they were given authorization cards to sign by Alex Mu-
sachio, who told them "that they were trying to get a
union into the place. And Eileen asked him if the owner
knew about it. And he told us that he did, the owners
knew. . . . He said we get dental benefits and he said
something about a dollar more an hour." Walker related
that she and Darcy then signed the cards, returned them
to Musachio, and entered the plant to resume work.
Walker continued that soon thereafter their friend and
fellow employee Cynthia Donnelly asked them if they
had signed authorization cards and when they acknowl-
edged that they had Donnelly told them, "You shouldn't
have done that. . . . She said that Artie had told her that
we could get fired for signing the cards." Walker stated,
"I think we went into the girls' room, and then we went
out and told Artie . . . that we had signed the cards.
And he said we shouldn't have done that." At first
Walker testified that Zabiela had also added, "Because
we could get fired" but then she testified that she was
unsure whether Zabiela made this latter statement about
being fired. Walker added that they then returned to the
girls' room where Darcy started crying and admitted to
Walker that she had known previously that the Union
was attempting to organize the Respondent's employees,
57 Darcy, while admittedly being unsure about the date this event oc-
curred, did recall that she had visited the plant on. February 22, the day
the strike began "when everybody walked out," it also being the same
day her, mother died, and believed that therefore February 22 was the
date that Kipnes made the above statements to her while she was sitting
in her car. Concerning this date, while she also testified about an incident
that occurred between her and an enaployee named Edison Taborda al-
legedly on that same day, in an affidavit given to a Board agent dated
February 28, 1978, she stated that the incident between her and Taborda
occurred on Tuesday, February 21, 1978. A careful reading of her affida-
vit (see R Eich. 1) clearly shows that these events occurred the day the
strike began and that date was stipulated by the parties as being Wednes-
day, February 22, though Darcy mistakenly recited the date as Tuesday,
February 21.
58 Walker testified that she saw "Mr. Musachio, I think Hector Lopez
was there also, and several other people, some of the employees."
having been told this by employees Carmen Segreto and
Nicholas Melara."
Walker testified that about 10 minutes later Zabiela
knocked on the bathroom door and told them that Jack
Kipnes wanted to see them. 6 ° She related that they pro-
ceeded to the office and when they were right outside
the opened door Kipnes started yelling at them." He
said, "What's the matter with you girls? Where are your
brains? Don't you like your jobs here?" Walker stated
that Darcy began crying and told Kipnes that "she liked
her job here." She added that Kipnes then said, "if the
union came in, he'd have to close the place down and
start laying people off."
Walker related that she and Darcy then returned to
the "ladies' room" where she told Darcy that she was
going to tell Zabiela about Darcy's prior knowledge con-
cerning the Union's organizational campaign whereupon
Darcy became "all upset, and she went and punched
out." Walker 'testified that Darcy told her that she was
going to punch out because she thought they had been
fired. According to Walker, she told Darcy to wait a
few minutes and to speak to Zabiela first, but Darcy was
so upset she just punched out and left. Walker continued
that she went and spoke t , about what had hap-
pened and Zabiela told her "that Jack [Kipties] was very
upset and to be cool and go back to work." Walker
stated that on Friday of that week (February 24, 1978)
sometime after lunch, Jack Kipnes came over to where
she was working and "apologized" to her,
He said he was sorry. And he was all upset. And he
said that I have a job there as long as I wanted it.
He didn't—he was confused about Eileen. . . . he
said he didn't understand where we had gotten the
idea that we had been fired. . . . and I told him that
Eileen—well, when he yelled at us, you know, we
assumed that we were laid off, and that's why
Eileen punched out. . . . but I said that she liked
working there, she wanted her job back. And he
said that he'd have to wait awhile things calmed
down.6'
Cynthia Donnelly, employed as a machine operator by
the Respondent, 62 related that on Monday, February 20,
1978, during lunchtime she and Arthur Zabiela were
standing inside the Respondent's plant looking out of a
window observing employees and other persons engag-
ing in some kind of activities outside the building where-
59 Walker testified that when they had originally gone out to lunch
and observed the union representatives talking to employees outside the
plant she had asked Darcy who these men were and Darcy had told her,
"I can't tell you because it could get a lot of people in trouble."
6° Walker testified that at the time she and Darcy told Zabiela that
they signed authorization cards for the Union they had not mentioned
anything about increased wages or benefits promised by the Union. She
added, however, that later that afternoon Zabiela asked her about what
had been said by the union representative when she signed the card and
she told him about the $1-an-hour raise and the dental benefits.
6 ' Kipnes did not deny this conversation with Walker.
62 Donnelly testified first as a witness for the General Counsel and
then as a witness for the Respondent. Her testimony concerning the dates
of occurrences and what was said in conversations was m part confusing,
contradictory, and unclear.
1290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
upon she asked Zabiela "what they were doing out-
side."63 She stated that Zabiela "said they were signing
union cards and he told me not to go outside. . . . He
said that you can get fired if you sign a card." 64 Donnel-
ly continued that soon thereafter when Eileen Darcy and
Patricia Walker returned from lunch and told her that
they had signed union authorization cards, she asked
them why they had signed the cards and told them that
Zabiela had said that they could get fired for doing so."
Donnelly also testified that Zabiela did not say that
employees could be fired for signing union authorization
cards and that she had told Darcy and Walker this be-
cause, "Al, one of the employees, told me that they can
get fired. That's what everybody had been saying." Don-
nelly continued that on Monday, February 20, at lunch-
time she, Alexander Jedynski, Howard Kipnes, 66 Joseph
Copeland, and "Leroy" 67 were standing by the garage
area when Jedynski told them that employees could be
discharged for signing "union cards." According to Don-
nelly, Howard Kipnes "was agreeing with him" at the
time. Why Donnelly told Darcy and Walker that Zabiela
had been the one who actually told her that employees
would be fired if they signed authorization cards was
never clearly explained by her. Both Jedynski and
Howard Kipnes denied telling any employees that they
could be fired for signing union authorization cards. Je-
dynski also denied ever hearing anyone from manage-
ment making any such statement." Although Joseph
Copeland was called as a witness for the Respondent, he
did not testify about this incident.
Of some significance along these lines is Zabiela's ad-
mission that prior to their testimony he had asked Je-
dynsld and Howard Kipnes if they had told Donnelly on
Monday, February 20, that employees could be dis-
charged if they signed a union authorization card, and
that this was not the only occasion that he had done so.
Interestingly, and while her testimony was somewhat
confused and changeable concerning whether Zabiela
had actually said that employees could be discharged for
signing union authorization cards, Donnelly did admit
that during a conversation with Zabiela, either just
before she testified as a witness for the Respondent or
63 Donnelly testified that another employee, Carmen Segreto, was also
present at the tune. Segreto was not called as a witness by any of the
parties.
64 Zabiela denied that this had happened He did testify, however, that
on Wednesday, February 22, he may have been lookmg out of the plant
window with Donnelly observing strikers on the picket lme, but denied
that he warned her not to go outside to iom the strike on pain of dis-
charge.
66 In an affidavit dated March 7, 1978, given by Donnelly to the
Board, however, she stated, "Artie told me not to sign a card He said
that they didn't want a union here. Artie didn't say anybody would get
fired if they signed cards." Additionally, while testifying as a witness for
the Respondent she also stated, "He Just said no one would get fired if
they signed a card." Donnelly did not sign an authorization card for the
Union.
66 Howard Kipnes is Jack Kmnes' son
67 The evidence shows that "Leroy" is Leroy Anderson and the Re-
spondent asserts that Anderson was not employed by it on February 20,
1978
68 Jedynski testified that on February 20, he had lunch with employees
Gene Viten' and Joseph Copeland and while leaving the plant at lunch-
time he was asked to sign an authorization card by a union representative
but refused to do so.
previously thereto Zabiela had said to her, "Don't you
remember I told you that no one could get discharged
for signing a card?" Significantly, the following testimo-
ny was then given:
Q. Is Artie Zabiela still your foreman?
A. Yes.
Q. Aside from today, have you had any discus-
sions with Artie about the union since this trial
began, since the first time you testified?
A. Just this afternoon when he was asking me a
couple of questions.
Q. Do you remember what that second question
was that you had forgotten a moment ago?
A. I don't remember.
Q. Did it have anything to do with people sign-
ing cards?
A. No.
Q. You're sure it didn't have anything to do with
people signing cards?
A. I don't remember the question he said.
Q. So you don't really remember whether or not
it had anything to do with people signing cards,
maybe it did, is that what you're saying now?
A. Maybe it did, but I don't remember the ques-
tion.
Q. Do you think you're going to get in trouble
today if you don't testify the way Artie wants you
to?
A. I don't know.
Q. You don't know?
A. I don't know."
Donnelly subsequently testified that the other questions
asked by Zabiela were whether she had gone to lunch
with Darcy and Walker on February 20, and about
Darcy's use of her automobile on Monday, February 20.
Zabiela admitted discussing Donnelly's testimony with
her that morning before she testified as a witness for the
Respondent. He stated that he asked Donnelly about the
loan of her car to Darcy and Walker on February 20,
and if Donnelly had remained in the plant during the
lunch hour 'of that day. He also admitted questioning
Walker about the use of Donne,lly's car on that Monday.
Donnelly continued that later that same day she was
called into Jack Kipnes' office where Kipnes asked her if
she had signed an authorization card and she told him
that she had not done so. 7 ° Donnelly related that Kipnes
then asked her why Darcy and Walker had signed au-
thorization cards but she answered that she "didn't
know."" Additionally, although her recollection had to
69 It appears to me both from her testimony and demeanor at the hear-
ing that Donnelly actually believed that she would be punished in some
way as an employee if her testimony reflected adversely against the Re-
spondent's positions here.
79 Donnelly also testified that her conversation with Kmnes occurred
the week of the strike and a few days after her conversation with Za-
biela. The strike commenced on Wednesday, February 22, 1978
71 Donnelly testified that previous to this conversation with Kipnes
she had already voluntarily told him that she had not signed an authori-
zation card for the Union.
MULT1MATIC PRODUCTS 1291
be refreshed by reference to her prior affidavit, she testi-
fied that Kipnes had also told other employees in the ma-
chine shop that they could be fired for signing "union
cards." Both Kipnes and Zabiela denied making any such
statements.
Concerning these events Jack Kipnes testified that on
February 20, 1978, he was apprised by Arthur Zabiela,
his managing foreman, that Darcy and Walker had told
Zabiela "the union was claiming that they were going to
get a dollar-an-hour increase in salary plus other bene-
fits," and since this "would cause a big hardship on the
corporation" and in order to verify this he had asked Za-
biela to bring "the girls" to his office. He related that
Zabiela brought Darcy and Walker to his office where
they "more or less confirmed" what Zabiela had told
him 72 Kipnes recounted that he asked Darcy and
Walker if "they signed the cards" and they told him that
the reason they signed it was because they were prom-
ised a $1-an-hour increase in salary, plus many other ben-
efits. Kipnes continued:
Now, after the girls told me this, I then turned to
Artie and I said, "Artie, you know, something like
this would require possibly closing down the plant
because we can't assume these kind of losses." At
that point Artie just took the girls outside.
Kipnes added that after Darcy "punched out" on
Monday, February 20, 1978, she returned to the plant
during the afternoon of February 22, 1978, and asked
him "for her job back." He stated that while Darcy was
a "qualified employee," he did not reinstate her at the
time because the strike had started and "I just didn't
know what to do as far as hiring people. I told her that
we would have to wait and see what happens with the
strike out there and that I would talk to my attorney to
see what I have to do here."" The evidence shows that
Eileen Darcy was rehired about March 3, 1978.
Arthur Zabiela74 testified that on Monday, February
20, after the lunch period, Eileen Darcy and Patricia
Walker approached him75 and:
They told me that there were union representatives
outside and that they were handing out cards and
that they had signed union cards themselves. . . .
Well, at that particular point in time I asked them
why they had signed the union cards. I had a feel-
72 It should be noted that in his affidavit Kipnes gave as the reason he
had Zabiela bring Darcy and Walker to his office was that Zabiela had
told him these employees had signed union authorization cards, failing to
mention therein anything about the Union's promises of benefits to the
Respondent's employees when they signed the cards. He explained that
this omission was the responsibility of the Board's agent who prepared
the affidavit and of his attorney who was present when his statement was
taken and advised him to sign it
73 Kipnes also testified that another reason for his action in not rein-
stating Darcy immediately was that this was an emotionally disturbing
time for him because of the strike. Kipnes admitted that the Respondent
needed employees at this time because of the "walk out." He also admit-
ted that there is a "fair degree of turnover" of employees continuously at
the Respondent's plant
74 Zabiela is the machine shop foreman "overseeing the general run-
ning of the shop and explicitly supervising directly the Brown & Sharpe,
the automatic machinery"
75 Zabiela testified that "they seemed somewhat emotional or upset"
ing of upsetment about it, that they would have
wanted to because I had this project of training
them in the Brown & Sharpe Department and it
was working out, I felt, very nicely. . . . One or
both. . . explained to me that they had been prom-
ised a dollar an hour wage increase, dental benefits
and additional benefits of which I do not particular-
ly recall. But they did mention other things.76
He continued that Darcy and Walker went to the ladies'
room and he proceeded to the main office "to explain
this particular situation to Mr. Kipnes."
According to Zabiela he told Jack Kipnes about his
conversation with Darcy and Walker, "concerning the
dollar an hour, you know, additional wage increase, the
dental benefits." He stated that Kipnes "seemed to be
surprised or shocked" and asked him to "get the two
young ladies, he would like to hear it directly from
them" Zabiela added that he told Darcy and Walker
that Kipnes wanted to see them and they all went to
Kipnes' office. He further testified:
Jack explained to them that Artie had just come in
and explained some things to him. He asked them, is
this a fact or is it factual, you know, something of
that nature. I'm not certain of the exact words. The
girls then responded by the admission that they had
signed union cards for the benefit of this additional
wage increase and additional benefits in general. At
this point Jack talked with me . . . . He said,
"Artie, with this type of an overhead or if these
costs were to be a reality or become effective," or
something of that nature, "That we would have to
lay personnel off, you would be out of a job, and
we would have to close the plant down."
Zabiela related that Darcy and Walker heard what
Kipnes said, "they could not help but hear this," and that
Kipnes did not yell or scream at them during this con-
versation.
Zabiela testified that a short time later he saw Darcy
leaving the plant He asked Walker why Darcy had left
work and she responded, "I don't know." He stated that
subsequently "that day or the following day" Walker re-
quested "in person or on the telephone" that Darcy be
reinstated to which Zabiela answered, "there is no such
thing as a reinstatement, I didn't lay her off, I didn't fire
her, she left on her own accord and therefore I need
time to evaluate the circumstances. And I said that, you
know, she should not at this time return to work.""
Concerning Roger Williams
The record herein indicates that Roger Williams com-
menced his employment with the Respondent on January
4, 1978. Irving Kipnes testified that Williams had been
absent from work the 2 weeks preceding the week of
76 Zabiela stated that he had been unaware of the Union's campaign to
organize the Respondent's employees previous to this.
77 Zabiela testified that he may have had other conversations with
Walker or Darcy concerning Darcy's return to work, but he was uncer-
tain as to this. He also stated that Cynthia Donnelly was not present
when this incident had occurred.
1292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
February 20 and had in fact not appeared on the job that
very Monday. Kipnes continued:
We thought he was terminated, or we thought he
had abandoned his job. He came in that Tuesday
[February 21, 1978]. Frank [Savana] was busy at the
time. He had a lot of work that he was doing at the
time. He was short-handed. He let him stay and
work. He did tell me about it.
Kipnes related that near the end of the workday that
Tuesday he advised Williams that he was discharged.78
The Respondent's payroll records in evidence show
that for the week February 13-18, 1978, Williams' name
appears with the word "termination" next to it. His name
also appears in the subsequent week's record (February
20-25) and again with the word "termination" following
it. Kipnes denied asking Williams if he had signed a
union authorization card or discussing the Union with
him.
As set forth above Ponce testified that he had over-
heard a conversation between Irving Kipnes and an em-
ployee named "Roger" in which Kipnes asked the em-
ployee if he had signed an authorization card, acknowl-
edged knowing that he had, and reminded "Roger" of
his poor attendance record and the fact that he could be
discharged right then and there and he therefore "better
know what to do." Roger Williams did not sign an au-
thorization card for the Union.
Concerning Mercedes Livingston
Armando Ponce testified that he drove Mercedes Liv-
ingston to work each day, but due to a "big snowstorm"
about the end of January 1978, Livingston missed several
days of work." He stated that Jack Kipnes, knowing
that he drove Livingston to and from work, asked him if
she had quit her job, to which Ponce responded that she
was ill, but had not quit her emp1oyment. 8° Ponce con-
tinued that subsequently Kipnes again asked him about
Livingston and he told Kipnes that "She is still sick."
Ponce added that after the snowstorm he never drove
Livingston to work again. He could not recall if she re-
turned to work thereafter, but knew that she was under a
doctor's care for illness, although he did see her at the
plant on Wednesday, February 22, the afternoon of the
strike."
78 Kipnes also testified that Williams "had been out so often," and had
failed to notify the Respondent about his absences. He stated:
Normally I will not discharge an employee if he has been out for
two weeks if he has called us why he was going to be out or that he
had some problem or something like that But he had failed to call us
first time that he had been out for a while, and he did not call us
during this last two-week period of time.
79 Ponce testified that Livingston was out about a total of 2 weeks
during the time she worked as an employee for the Respondent.
89 Kipnes denied that he ever asked Ponce about the whereabouts of
Livingston
87 Ponce testified in great detail about how he checked with Living-
ston each morning where she resided in Hicksville, Long Island, New
York, during and after the snowstorm and how she regularly informed
him from her window that she was ill and that Ponce should "Tell the
company that I'm sick, still sick." However, Ponce admitted that he in-
formed Jack Kipnes about Livingston's illness only on the two occasions
when Kmnes asked him about Livingston The testimony of Frederick
Kuhlmann, the owner of the premises Livingston allegedly lived, cast
Frank Savana testified that Mercedes Livingston
worked in his department performing "patching and
sanding" work.82 He stated that because of a severe
snowstorm the employees who appeared at the plant on
Monday, February 6, 1978, were sent home that morn-
ing. Savana related that the Respondent's plant was
closed on that Tuesday and Wednesday, with only a few
emilloyees appearing on Thursday. Savana related that
Livingston appeared for work on Friday, February 10,
and never returned thereafter. He continued that on the
following Monday he asked Ponce about Livingston and
Ponce replied that she was ill. Savana added that he him-
self did not report for work Tuesday or Wednesday of
that week and when he returned on Thursday and Liv-
ingston still had not appeared at the plant he questioned
Ponce about this. According to Savana, Ponce then
stated that he did not know why Livingston was not at
her job. Savana related that he subsequently observed
Livingston on the picket line during the strike. It is un-
controverted that Mercedes Livingston did not report
for work after February 10, 1978. Margolin stated that
the decision to terminate Livingston was made on Febru-
ary 20. Mercedes Livingston did not appear at the hear-
ing to testify.
Lee Margolin, the Respondent's bookkeeper, using the
Respondent's employment records, testified that she be-
lieved that Mercedes Livingston's last day on the job
was February 11, 1978. While her testimony was at times
changeable, it appeared from Livingston's timecards that
the letter "T" (denoting termination) first appeared
thereon during the workweek of February 18-23, 1978.
Margolin stated that the decision to terminate Livingston
was made on February 20. Mercedes Livingston did not
appear at the hearing to testify.
Concerning Esther Lopez"
The evidence shows that Esther Lopez commenced
her employment with the Respondent on February 1,
1978. 84 Joseph Diaz, a leadman in the Respondent's
"paint shop" where Esther Lopez worked, testified that
Lopez "was taking a lot of time off" and when he asked
her about the reasons for her absences and latenesses, she
responded that "she might have to be quitting the job be-
cause she has to be taking her kids to the doctor." Diaz
stated, "So the following day she didn't come in. So I
asked Hector Lopez what happened to Esther. And he
said that she quit . . . because she had to be taking the
kids to the doctor and taking time off." Diaz added, "I
don't know exactly when she stopped working." 85 He
some doubt as to the truth of at least part of Ponce's testimony concern-
ing the above.
82 The Respondent's employment records Indicate that Mercedes Liv-
ingston was hired on January 24, 1978
83 Esther Lopez is the wife of Hector Lopez, secretary-treasurer of the
Union, and one of the Respondent's employees at the time the events dis-
cussed here happened.
84 Ponce testified that he had given Esther Lopez an authorization
card, which she signed on February I, 1978.
85 Although Hector Lopez testified extensively at the hearing, he did
not dispute this testimony. Esther Lopez did not testify at all.
MULTIMATIC PRODUCTS 1293
also related that he had not advised the Respondent
about this.
Although Irving Kipnes initially testified that he
"thought" that Esther Lopez was employed by the Re-
spondent on Monday, February 20, he added, "but there
were indications that she no longer wanted the job or
was going to be working there." Further Lopez' time-
card contained the notation "Discharged because of at-
tendance. Terminated 2/17/78." 88 He explained that
Lopez, "just did not show up . . . she didn't come in
that Monday, Tuesday or Wednesday [February 20, 21
and 22, 1978, respectively], nobody told her anything
about her being discharged, her work performance was
not that good." Therefore, he continued, because the Re-
spondent did not know whether she was coming back to
work or not, the last day Lopez actually did work was
used as the date she discontinued her employment with
the Respondent.87
Concerning Steven Ezegelian
Steven Ezegelian, employed by the Respondent from
mid-November 1977 until February 20, 1978, 88 testified
that on Monday, February 20, about lunchtime, 12:30
p.m., as he was leaving the plant one of several union
representatives standing outside gave him an authoriza-
tion card to sign telling him that "they were trying to
get a union into the shop, they were going to try for in-
creased wages and more paid holidays." He stated that
he signed the card, returned it to the union representa-
tive, and observed at the time that other employees were
also being handed similar cards. Ezegelian continued that
on his return from lunch about 1 p.m. he saw the same
persons present in front of the building and he entered
the plant to resume wOrle He related that sometime
thereafter Jack Kipnes came over to where he and Cyn-
thia Donnelly were working in the machine shop: "Well,
Mr. Kipnes went up to her first and asked her if she had
joined the union. And she said 'No.' Then he came to
me, asked me the same question." And I responded, as I
said before, 'No. I had just asked for information." Ac-
cording to Ezegelian, Kipnes also approached another
employee who had only been employed for about 2 days,
but Ezegelian could not hear what was said.
89 Kipnes testified that these notations on the timecard were entered
"probably a week or so later" after the end of the pay period. Lopez'
timecards in evidence indicate that the last day she worked was Wednes-
day, February 15, 1978.
8/ Kipnes denied that the Respondent had discharged Lopez asserting
that instead Esther Lopez had voluntarily quit her employment on Feb-
ruary 17, 1978. Additionally, in an affidavit dated March 2, 1978, given
to a Board agent, Kipnes stated,
Also Esther Lopez had not reported to work on Thursday, Friday
or Monday (2-23, 2-24 and 2-27). She had also been out the previ-
ous Thursday or Friday. She was out 5 days for the 3 v.eeks she had
worked. She started Wednesday, February 1, 1978 and worked only
5 out of the 10 days she was to report to work.
88 Ezegefian testified that he started as a shipping clerk and subse-
quently "was learning to operate the machinery."
89 Ezegelian also testified that Kipnes had said to him "Did you join a
club?" Although Cynthia Donnelly did no specifically testify about any
conversation she had observed between I, egehan and Kipnes, she did
testify as noted above that Kipnes "was telling other people in the ma-
chine shop they could get fired for signing union cards."
Ezegelian testified that sometime during the next hour
someone had told him that Eileen Darcy and Patricia
Walker had been fired and when he next saw Jack
Kipnes out on the floor of the plant, he went over to
Kipnes and "told him I quit." Ezegelian continued that
when Kipnes asked him why, he responded, "Namely,
that I heard that both Eileen and Pat had been fired and
I didn't want to work in a shop that would fire employ-
ees for joining a union." Then Kipnes said, "Okay, Re-
member to punch out." Ezegelian added that while
"nobody on behalf of management" ever said he would
be terminated for signing a card, he actually quit because
he was afraid he would be fired." He stated that before
he left the plant he told Arthur Zabiela that he had re-
signed because Darcy and Walker had been fired for
signing authorization cards and that Zabiela complained
"that some 01 the people [four in number] didn't want to
join the union and they were going to be stuck if the
union got in."" He related that when he returned to the
plant on Thursday, February 23, to receive his paycheck,
he had a conversation with the receptionist who told him
that Walker was still working for the Respondent and
that he had been "an idiot" to quit his job because "Pat
is working and you're not."
Although Jack Kipnes confirmed that he had a con-
versation with Steven Ezegelian on Monday, February
20, he denied that he had asked Ezegelian if he had
joined the Union. According to Kipnes, "The only thing
that was said about the union was he walked past me,
going out of the department, he said he's quitting, he
can't stay here under the conditions of a union coming
in, or something to that effect." Kipnes added that Eze-
gelian mentioned nothing about Eileen Darcy or Patricia
Walker or about any employees being discharged.
Arthur Zabiela testified that on February 20, 1978,
about "two or three o'clock . . . Steve Ezegelian came
over to me, and he said something to the effect, am
leaving. I have quit." Zabiela continued that he asked
Ezegelian "Why? What's the matter, Steve?" and Ezege-
lian answered, "I am quitting in sympathy of those that
want the union." He stated that he told Ezegelian "what
about the other poor working slobs that don't want the
union" and pointed out that Ezegelian would now be out
of a job." Zabiela denied that Ezegelian had mentioned
Eileen Darcy or Patricia Walker in their conversation
nor had Ezegelian said anything in this conversation
about his having quit because of any employees being
discharged by the Respondent.
80 Evegelian also testified that he quit because, "I had signed the card.
I knew that meant I was joining a labor union. I had heard that two
other employees, Eileen and Pat, had been fired for signing cards. So
rather than be fired, I decided to quit."
91 Ezegelian testified that his conversation with Zabiela occurred in
the primary area where the machines are and while he acknowledged
that Walker also works in that a 'a he did not see her nor did Zabiela tell
him that Walker had not been fir
92 According to Zabiela, Ez,..-gehan stated that he could get another
job without too much difficulty. Also, there was some testimony by both
Ezegelian and Zabiela concerning Zabiela's charactenzation of employ-
ees. Zabiela acknowledged that he could have used the words "working
stiffs," but not "jerks" when he discussed employees who did not want
the Union.
1294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Concerning Randolph Woods
Randolph Woods, employed by the Respondent from
February 1977 until February 1978, testified that he
signed a union authorization card on February 3, 1978,
which had been given to him by Armando Ponce. 93 He
stated that Ponce told him at the time about the Union,
"about what it offered, and that the purpose of the card
was to organize the union, you know, in the shop."
Woods continued that about a week or so after he signed
the authorization card, Irving Kipnes called him into his
office and said,
. • . he had found out that I had signed a union
card and after all of the chances that he had given
me at the job, I was the last person that he had ex-
pected would sign the card. He told me that he
could fire me right now if he wanted to . . . he
asked me did I sign it? I said yes, you know, be-
cause I did. He then told me that his company—
that his company men did not want no union there
and if the employees there did not like the wages, it
was too bad. And I said what you're saying then,
you know, forget about the employees, all you care
about is the company men. . . . So then he went
into my latenesses, about me being late and that if I
come in late any more, that he was going to—that I
was going to be fired or terminated or something
like that.94
Irving Kipnes acknowledged that he had a conversa-
tion with Woods on Monday afternoon, February 20. He
testified that when he arrived at the office that morning,
he had gone to the molding plant to speak to Frank
Savana, the door division supervisor," about production
being down and Savana had told him that Randy Woods
was "coming in late constantly" causing delays in pro-
duction and he recommended that Kipnes speak to
Woods about his latenesses. Kipnes stated that he spoke
to Woods that afternoon, having decided to admonish
and warn Woods about it, "I told him if this continues to
happen, he would be fired. And then at that time some-
how it came into the discussion about union; okay. And
he mentioned to me his feelings about the union." 96 He
continued:
Well, I told him that the union. . . the unfair de-
mands—well, the demands that the union could
make upon us. . . would probably make a hardship
on the company, we couldn't continue to operate
under these conditions on the type of demands that
they would be asking for. . . . I didn't say that we
would close it down or anything like that. . . . I
93 Woods, in an affidavit given to a Board agent dated March 3, 1978,
stated that he signed the card on February 14, 197$ He could not re-
member which date, February 3 or 14, 1978, was correct.
94 Woods admitted that he had been late on prior occasions
95 This department is comprised of the Respondent's molding, paint-
ing, and glazing operations. Kipnes testified that he had been on vacation
from February 11 through 18, 1978, and on his return had discovered
that production was lagging and he had gone to see Savana to find out
why.
96 Kipnes admitted that he may have asked Woods what his thoughts
were about the Union.
did indicate to him that we affectively could not
operate if the demands were too excessive or if they
came in with some ridiculous demands.
According to Kipnes, Woods responded that he thought
that the Union would be good for the Respondent's em-
ployees since they would be able to secure better de-
mands.
Frank Savana testified that Kipnes had been on vaca-
tion from February 13 through 17, 1978, and on
Monday, February 20, on Kipnes' return he had dis-
cussed production with him He stated that Kipnes was
unhappy that production had fallen off the week he was
on vacation due to various reasons; the absence of sever-
al employees, Savana's own absence caused by a death in
the family, and employee latenesses. Savana related that
that very morning Woods had arrived late to work,
slowing production, and because this had occurred
before on several occasions he asked Kipnes to speak to
Woods about his unsatisfactory attendance and to other
employees who were taking "a lot of time off."
The Discharge of Maria Bolta Vazquez
Maria Bolta Vazquez (Bolta) commenced her employ-
ment with the Respondent on February 13, 1978, "clean-
ing pieces and operating a machine." Bolta testified that
on the day she signed a union authorization card she was
standing outside the Respondent's plant with fellow em-
ployees Lillian Cruz and Sol Maria Cabrera at lunch-
time, about 12:30, when Hector Lopez gave each of
them a card to sign. 97 Bolta continued that after Lopez
translated the contents of the card to her and explained
that its purpose was "to bring in the union," she went
into the bathroom, signed it, and returned it to him."
Bolta added that she then entered the plant and returned
to work.
Bolta testified that later that day her supervisor, "Gus
• . . the boss," 99 using Lillian Cruz as an interpreter,
asked her if she had signed an authorization card and
when she told him she had done so he discharged her,
"He told me not to come back the following day." Bolta
stated that she then punched out and left the plant.'"
She continued that Carmen Segreto, another employee,
was also present when she was fired.
Lillian Cruz"' testified that she was employed by the
Respondent for "about a month" in February 1978. She
stated that on February 20, 1978, at lunchtime, while she
and fellow employees Bolta and Cabrera were standing
outside the Respondent's plant in the parking lot waiting
Bolts testified that Lopez and two other men, one of whom was
Alfred Musachio, were distributing union cards outside the plant.
98 Bolta's signed authorization card is dated February 20, 1978. She
testified that although she usually signs her name as Maria Bolta, she
signed the card as Maria E. Vazquez, having forgotten to mclude Bolts.
99 The evidence shows that "Gus" is Konstantmos Karachaltos, em-
ployed by the Respondent as a leadman.
1 " While Bolts testified that she was discharged on February 21,
1978, she also maintained that she was discharged on the same day she
signed the authorization card, which is dated February 20, 1978 Her tes-
timony concerning dates and occurrences, especially regarding the sign-
ing of the authorization card, was contradictory, unclear, and at times
less than believable
1 " Lillian Cruz is Maria Bolta's sister-in-law.
MULTIMATIC PRODUCTS 1295
to purchase lunch from a food service vendor's truck
parked nearby, Hector Lopez gave each of them a union
authorization card to sign. 102 Cruz recounted that she
and Cabrera then went to the bathroom together and
filled out and signed their cards, mistakenly dating them
February 15, 1978. 103 She related that when they re-
turned the signed cards to Lopez soon thereafter he dis-
covered the error and gave them new cards to complete
and sign, which they did, dating these cards February
20, 1978. 1 °4 Cruz added that while this was transpiring
she did not see Bolta nor did she know where Bolta had
gone to. She continued that when she and Cabrera re-
turned to work, they found Bolta already inside the plant
whereupon lolta advised them that she had also signed
an authorization card for the Union. 105
Cruz testified that later that same day Gus, the fore-
man, came over to her and using her as an interpreter
directed her to tell Bolta that she was being discharged,
which she did. She stated that lBolta then asked her to
find out from Gus why she had been fired and when
Cruz asked him he replied that I3olta was et go because
she had been seen filling out and signing the union
card.'" She added that she relayed this message to
Bolta and that Cabrera was present at the time this all
was happening.1°7
1 °2 Thomas Poulos, owner of the food truck that services the Re-
spondent's plant, testified that on Monday, February 20, a legal holiday,
this being George Washington's birthday, neither he nor his partner ap-
peared at the Respondent's plant that day. He was unsure, however,
whether any other food service company had sent around a food truck to
service the Respondent's employees on that day
103 Cruz at first testified that she signed the card on February 15,
1978 She finally admitted that she could not remember the actual date
she signed the card since she had just written down whatever date Lopez
told her to put on the card. Cruz additionally testified that she completed
the first card in the parking lot while she was alone, took the card with
her into the bathroom not knowing where Bolta or Cabrera were at the
time, and then returned the signed card to Lopez waiting outside the
plant. She stated that Lopez told her that the card had been incorrectly
dated and gave her a new one to sign, which she did, dating it correctly.
Cruz related that it was thereafter that she met Bolta and Cabrera in the
bathroom and was told by them that they too had signed union authori-
zation cards. She subsequently again changed her testimony to conform
to her original testimony as set forth above.
104 In her subsequent testimony Cruz could not at first recall if Ca-
brera filled out and signed a second authorization card, but then she re-
membered Cabrera had done so Cabrera testified that she had signed
only one card and her authothzation card in evidence is dated "2/15/78."
155 However, see the latter part of fn 103 above. It should be noted
that Cruz was subsequently called as a witness for the Respondent after
the trial was reopened and her testimony again differed at times from that
previously given and she was more forgetful concerning what happened
than during her prior appearance as a witness for the General Counsel.
1 °6 Cruz also testified that she knew Bolts was additionally fired be-
cause she was a slow worker and that Foreman Gus had asked her to tell
Bolts "that he didn't have no work for her. So he told her to go home."
Cruz then restated that Gus had said something about the Union. Cruz'
testimony concerning what was said by Foreman Gus as to why Botta
was fired is so fraught with Inconsistencies and contradictions as to be
almost unbelievable.
1 °1 Cruz also testified that on Monday, February 20, prior to her dis-
charge, Bolta had told her that she believed she was going to be fired
because someone had observed her signing an authorization card and
when Cruz related this to Carmen Segreto, Segreto became angry and
said she was going to talk to Jack Kipnes about it. As set forth above,
Segreto did not testify at the hearing.
Cruz continued that about 2 p.m. that day Jack Kipnes
came into the production area of the plant where Cruz
works and asked her if she had "filled out a union card."
Cruz stated, "And I told him if I did, what would
happen? He said if I did, he would have to fire me. So I
told him no."1"
Sol Maria Cabrera testified that she was employed by
the Respondent during February 1978. She stated that
she signed an authorization card given to her by Alex
Musachio 1 " during a morning coffeebreak at the plant
on Monday, February 20, 110 and that Lillian Cruz and
Maria Bolta had also signed cards that day. Cabrera con-
tinued that she was present on the day that Bolta was
fired and she heard Gus tell Bolta that "she would be
laid off for two or three days because they had no work
for her. And then they would send for her." She added
that she had not heard Gus say anything else at the time.
Cabrera related that Jack ICipnes, with Gus being present
at the time, asked her if she had signed an authorization
card for the Union and she said that she had.
Konstantinos Karachalios 111 (Gus) testified that Bolta
had been "tried in several jobs" but was "not really"
able to perform any of the work required. 112 Karacha-
lios denied discharging Bolta, asserting that Jack Kipnes
had fired her. He also denied questioning Bolta about her
having signed an authorization card and using Cruz as an
interpreter to discharge Bolta.113
Henry Carl, the supervisor of the machine tool depart-
ment in which Bolta, Cruz, Cabrera, ICarachalios, etc.
worked, testified that Bolta was unable to perform even
1°8 Cruz testified that Carmen Segreto was nearby at the time this oc-
curred, but that Kmnes did not ask Segreto if she had signed an authori-
zation card.
100 Cabrero's subsequent identification from a photograph of Union
Official Alex who gave her the card, establishes that us actuality it was
Alfred Musachio not Alex Musachio who had done so
"° Cabrera also testified that she had signed the card on the same day
that Botta was fired. When Cabrera was shown her signed authorization
card dated "2/15/78," however, she admitted that she actually signed the
card on February 15, 1978. She also testified that She had discussed at
various times with Cruz, Bolts, Lopez, and Stanley Goodman, counsel
for the General Counsel, the date she had signed the card and then she
changed her testimony to indicate having only discussed this with Lopez.
Karachalios testified that he was hired by the Respondent in Janu-
ary 1978 as an inspector and in February 1978 became a ieadman. His
duties were to inspeCt parts manufactured by employees in Ms section to
see if they met specifications, see that the machinery was functionmg
properly, and assign work to the employees after Department Supervisor
Hank Carl had told him which employees were to do what In describing
Karachahos' job, Henry Carl testified that he would tell Karachalios
what work was to be performed and Karachahos would show the other
employees in the department what to do and would subsequently check
then- work He stated, uncontradicted by any other evidence here, that
Karachalios had no authority to hire or fire employees, and no authority
to grant time off or overtime work although he could recommend such
actions and consideration would be given to his recommendations. Fur-
ther, Karachalios is paid on an hourly wage rate as are most of the other
employees in the production department, while Carl receives a fixed
weekly salary presumably much higher than the production workers. The
parties stipulated that Karachahos was not a supervisor as defined under
Sec. 2(11) of the Act
"2 He also testified that Cruz and Cabrera were unsatisfactory em-
ployees.
/ 13 Karachalios also denied telling Cruz that he had seen her and Bolta
filling out "union cards." He testified, however, that he knew that the
Respondent's employees were signing cards for the Union and had been
asked himself to sign a card during the strike.
1296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the simplest of jobs satisfactorily and that he had recom-
mended to Kipnes that she be discharged. He stated that
Kipnes then fired her on February 20, 1978. Carl denied
discussing Bolta's union activities with her, including her
signing of an authorization card. Concerning Bolta's dis-
charge and after testifying that Bolta worked in his de-
partment, the following testimony ensued:
Q. Do you recall Maria?
A. Yes. I do. [Then almost as if primed to the re-
sponse and without any question with regard there-
to being asked he continued.] She worked for about
a week. One of the reasons we didn't let her go as
soon is because we thought she had a language bar-
rier and we wanted to give her a little better chance
. . . and her production rates were much slower.
And we tried whatever we could to show her ex-
actly what to do.'14
Jack Kipnes testified that he had discussed Bolta's
work performance with Carl the previous week and that
Carl had recommended that the Respondent discharge
her. He stated that on February 20, using Lillian Cruz as
an interpreter, he fired Bolta. Kipnes denied having ques-
tioned Bolta about her signing a union authorization
card, but related that during the afternoon of that day
while making his "rounds" Bolta asked him "what is a
union?" 1 " 5 He additionally denied telling her that she
could be fired for signing an authorization card. Kipnes
added that Maria Bolta Vazquez was discharged by the
Respondent because "she couldn't perform the work that
was given to her" even though she was tried at a
number of jobs.
The Alleged Discharge of Luz Fuentes
Luz Fuentes commenced her employment with the
Respondent on January 26, 1978. She testified that she
signed a union authorization card on January 29, 1978,
given to her by Hector Lopez" 6 who told her at the
time that the purpose of the card was "to bring the
union." 7 Fuentes related that on Friday, February 17,
"4 It is true, however, that this testimony was elicited after Carl had
been previously asked a series of questions about the discharge of Domin-
ick Lauriano and Jorge Arias at the end of their first workday with em-
phasis on whether such early discharge was unusual or not.
115 Kipnes' testimony concerning this is hard to believe. Kipnes also
testified that while making his "rounds" of the various operations in the
plant on Monday, February 20, 1978, from "3-5" employees had volun-
tarily told him that they had signed authorization cards for the Union.
Again I am suspicious of this testimony.
116 Fuentes testified that she had known Lopez previously_and that he
was responsible for her obtaining employment with the Respondent. She
worked for the Respondent for a period of "about two or three weeks"
" 7 Several inconsistencies are evident in Fuentes' testimony concern-
ing this; for example, while she was sure that she signed the card on Jan-
uary 29, 1978, outside the Respondent's plant after she and Lopez had
finished their lunci, it should be noted that January 29, 1978, fell on a
Sunday and the R.f.vondent's operations are closed on Sundays. Further-
more, the parties stipulated that Lopez commenced his employment with
the Respondent on January 30, 1978, although he could have obt °ned
her signature prior to his starting as an employee. Additionally, Fa- Ines
testified that Lopez had translated the contents of the authorization card
to her, but in an affidavit given by Fuentes to a Board agent she stated
that she had not read the card nor did anyone translate it for her. Again
while she testified that it was Lopez who had given her the card, in her
affidavit Fuentes stated that she had received it ''rom a union man she did
1978, she became ill and asked a fellow employee, Ar-
mando Ponce, to inform her supervisor, Frank Savana,
that because she felt sick she was requesting permission
to go home early. She added that Ponce did so and after
Savana gave his permission she left the plant and went
home. 118
Fuentes continued that she returned to work the fol-
lowing Monday, February 20, 1978, at 8 a.m. and found
that her timecard was missing from its slot and she asked
Ponce to find out from Savana the reason for this.
Fuentes testified that Ponce spoke to Savana and then in-
formed her that Savana had directed her to leave the
plant. She stated that she sought an explanation for this
action, but Savana would give no reason for directing
her to "leave because I was fired." Fuentes added that
Hector Lopez then drove her home in his car.
-Ponce testified that on Tuesday, February 21, at ap-
proximately 8:10 a.m. Ponce was asked by Foreman
Frank Savana to act as interpreter between himself and
Luz Fuentes, who had arrived for work that morning.
Ponce related that Savana told him to tell Fuentes that
"she was no longer an employee of Multimatic, she was
fired." Ponce continued that after he told Fuentes this
she asked why and Savana told her through Ponce that
"She has been let go." Ponce added that Fuentes then
went outside and asked Hector Lopez to drive her
home." 9 Ponce also testified that Amanda Lopera and
Nicholas Melara were present when this occurred. Al-
though Amanda Lopera was called as a witness for the
General Counsel, no testimony concerning this was elic-
ited from her. Melara did not testify at the hearing.
Randolph Woods testified that Fuentes had become ill
while at work and had then Left the plant, remaining out
foi the rest of that day and the next day also. He contin-
ued: "Then this union stuff, the cards came to light, Iry
had found out that we had signed cards. And then when
she came to work after she had gotten sick, and after she
came back, you know, she didn't work no more." Woods
stated that when Fuentes returned to work (he believed
the date to be Tuesday, February 21, 1978), he saw
Fuentes, Frank Savana, Armando Ponce, and "a whole
bunch of people and then I just seen her leave." He re-
lated:
As soon as Fuentes came in, Frank said something
. . Armando and somebody else started talking
Spanish . . . they said Lucy was going home. And
then I started getting curious because the strike was
happening and people was getting fired like this you
know. And I said, you knew, why was she going
home? They said she got fired.
not know. Fuentes attempted to explain these inconsistencies on the basis
of her being confused when her affidavit was taken.
115 Fuentes does not speak English and Ponce acted as her interpreter.
119 On cross-examination Ponce at first wa: ansure whether Fuentes
had been terminated on February 20 or 21, 1978, but subsequently he
agreed that it occurred on February 21, 1978. According to Ponce, since
Hector Lopez was discharged duruig noontime on Monday, February 20,
after the Union had made its demand for recognition, and he drove
Fuentes home during the morning hours, her discharge must have oc-
curred the next day, Tuesday, February 21.
MULTIMATIC PRODUCTS
1297
He added that no one told him the reason for Fuentes'
alleged discharge. Woods also testified that after he Saw
Fuentes enter the plant, he saw Ponce talking to Fore-
man Frank Savana, "and I think I heard Frank say tell
her to go home." 12° He recited that Ponce now attempt-
ed to obtain transportation for Fuentes to her home.
Savana testified that on Friday, February 17, about 2
p.m. Fuentes had advised him that she did not feel well
and asked for permission to go home, which he gave her.
Savana denied that Fuentes returned to work on
Monday, February 20, or thereafter, or that he ever had
a conversation with her using Ponce as an interpreter
during which she was discharged.121
Irving Kipnes testified that Luz Fuentes was never dis-
charged by the Respondent, but instead had failed to
return to her job after February 17, thereby voluntarily
quitting her employment with the Respondent.122
The Discharges of Dominick Lauriano and Jorge
Arias
Dominick Latvian° testified that he commenced his
employment with the Respondent on February 20, 1978,
after filling out an employment application "a couple of
weeks before," pursuant to a newspaper advertisement
placed by the Respondent seeking new employees. Laur-
iano continued that when he reported for work that
Monday morning Jack Kipnes assigned him to the ma-
chine he was to work on and the shop foreman instruct-
ed him as to its use and periodically checked his work
progress during the course of the day. 122 He stated that
about noontime he left the building for lunch and while
outside the plant both he and another new employee124
were asked by a man sitting in a car if they wanted to
join the Union. 125 Lauriano related that they both said
120 In an affidavit given by Woods to a Board agent, however, Woods
stated that Savana had instructed Yvette Padilla to tell Fuentes to leave
the plant and return home. After Woods was shown his prior statement,
he testified that Padilla might have acted as translator while Ponce came
into the picture to secure Fuentes a ride home.
121 Savana testified that Fuentes worked in "Ms shop, patching and
sanding." Savana added that Fuentes' last day of work occurred on
Friday, February 17, 1978, but that he observed her subsequently on the
picket line during the strike. I
122 In a list of employees who had been fired by the Respondent
during January and February 1978, compiled by the Respondent and sent
to the Board during the mvestigative stage of these proceedings, howev-
er, the Respondent included the name of Luz Fuentes, setting forth there-
in the reasons for her discharge as absenteeism, constant lateness, and fail-
ure to appear for work on Monday or Tuesday, February 20 and 21, re-
spectively.
123 Durmg cross-examination Lauriano was questioned about Jack
Kipnes' appearance, what he was wearing at the time, etc., and the Re-
spondent in its brief makes much of Lauiriano's responses when compared
with Jack Kipness testimony. I do not beheve, however, that Lauriano's
alleged inconsistencies m this connection have any substantial affect on
his overall credibility since he was only employed for a period of I day
and whether Kipnes or Carl assigned Lauriano his work or whether
Kipnes wore "overalls" or not is actually of no great significance. Kipnes
admitted to having a conversation with Lauriano in which he discharged
him. Significantly, the record shows that the testimony of almost all the
witnesses here contains contradictions and inconsistencies in some part.
124 Lauriano could not recall his fellow employee's name'nor describe
him except to recall that he spoke "broken English" and had a Spanish
accent. From the evidence here, it is not unreasonable to infer that this
new fellow employee was Jorge Arias
129 Launano could not remember what the man looked like.
yes and were given authorization cards, which they
signed.i26
Lauriano continued that they then went to the diner
adjacent to the Respondent's plant, but it was closed and
they therefore returned to work. He recounted that soon
thereafter Jack Kipnes and the foreman called Lauriano
over and the following conversation ensiled:
They asked me if I signed a card for the union. I
said Ires. He said I shouldn't have done that. I told
him,1 said, "Why?" You know. He said "We don't
allovi, union members." I said, "If you want, you
know, I will go get the card back." And he didn't
say anything. So I went back to work..
Lauriano added that Kipnes also called the other new
employee over and spoke to him, but Lauriano could not
hear what was said between them.'" He related that ap-
proximately an hour later while checking his work the
foreman said that he "shouldn't have signed the card for
the union," to which Lauriano responded, "What's done
is done."
Lauriano testified that at the end of the day when he
was about to leave, the foreman told him, "That they
won't be needing me no more because they are slow and
that if they need me they will call me." He stated that he
then went to see Jack Kipnes and asked him if he was
being "laid off or if I'm getting fired. And all he said
was to pick up my check tomorrow." Latvian° related
that he returned the next day (Tuesday, Februaiy 22) to
get his check.'" Jorge Arias did not testify at the hear-
ing.
Concerning the above, Jack Kipnes testified that he
discharged both Dominick Latvian° and Jorge Arias at
the end of the workday on Monday, February 20, the
very first day of their employment, because their produc-
tion rates were low and they performed their work im-
properly.'" Kipnes stated that he also fired Lauriano
126 Lauriano at first testified that he had signed the card with a pencil
given to him by the man in the car, but then acknowledged that the card
had been signed with a pen when he was shown his authorization card in
evidence.
127 Lauriano testified that this conversation actually occurred between
Kipnes and himself with the foreman saying nothing but just listening.
Kipnes denied that such a conversation took place.
'" As indicated before, it would appear that this other new employee
was Jorge Arias who commenced his employment with the Respondent
on the same day as Lauriano did, Monday, February 20.
129 There is testimony in the record, however, to the effect that the
check was dated February 23. Again this discrepancy Is of little signifi-
cance as there is no question that the date of Lauriano's discharge was
February 20.
130 Kipnes testified that during a conversation that day between him-
self and Hank Carl, his shop foreman, concerning production levels, Carl
had advised him that Lauriano was performing his work in an unsatisfac-
tory manner, seemingly "sleepmg" on the Job, had ruined some "pieces,"
and was producing at a low rate. He stated that after personally observ-
mg Lauriano at his work he concurred that Launano worked slowly and
Lauriano was discharged. However, on cross-exammation Kipnes also
testified that Carl had never said anythmg about Lauriano sleeping on the
job and that the first time he heard Lauriano characterized as "sleeping"
on the job was at the hearing. Kipnes added that he also discussed Arias
with Carl and after reviewing Arias' production cards they both felt that
Arias would be unable taproduce production of machine parts.
1298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and Arias because they "didn't seem" to be able to per-
form the functions of the job that they were hired for
and when he terminated Lauriano he told him that this
action was taken because Lauriano's production rate was
low and he was not performing his work properly.131
He denied asking either Lauriano or Arias whether they
had signed union authorization cards nor did he discuss
the Union with either of them.
Kipnes additionally testified that the Respondent expe-
rienced "a fair degree of turnover" among the unskilled
employees at the plant and that while he had previously
terminated employees after only a day's work he had not
done so since the discharge of Lauriano and Arias on
February 20, 1978. 132 Kipnes acknowledged that he was
aware of the employment records of Lauriano and Arias
when they were hired, Lauriano having previously
worked as a printer, an assistant manager, and a disc
jockey while Arias had previously worked as a clerk and
that they were employed because obtaining new employ-
ees at the time was becoming a difficult problem. As
noted hereinbefore, Irving Kipnes testified that it was the
Respondent's policy to give new employees a chance to
learn their jobs over a reasonable period of time.
Henry (Hank) Carl, supervisor of the secondary de-
partment,'" testified that Dominick Lauriano and Jorge
Arias worked in his department for 1 day on February
20. He stated that both employees were "very poor
workers. Their production rates were much lower than
any other employee that we had, and they also ruined
quite a few pieces." 134 Carl continued that his leadman,
Gus,'" had reported to hirn that "their rates were very
low and that every time he was looking to see what they
were doing, it looks like they were dozing. . . . Mostly
Dominick." 39 He added that at approximately ,3 p.m. on
that day he told Jack Kipnes that Lauriano and Arias
worked too slowly and that he believed that "they
couldn't really handle the work" and recommended that
they be terminated. Carl was unsure whether he or Jack
Kipnes actually effectuated their discharges. Carl denied
having asked either Lauriano or Arias whether they had
signed authorization cards for the Union or ever having
discussed the Union with them. Although Carl related
Lauriano's version was that Carl, not Kipnes, had let him go, and
that Carl had told him there was no work for him, it was a slow period.
122 It would appear or at least I suspect from the evidence here that
the discharge of a new employee on his first day of work is an unusual
occurrence and that when an employee leaves the job after having
worked only 1 or 2 days it usually occurs as a voluntary quitting or ter-
mination.
This department includes the production machinery that manufac-
tures precision-machined parts.
134 Launano admitted that imtially he had been performing his task
Incorrectly until the foreman came over and corrected his work.
Carl testified that Gus was the person who dealt with Launano
and Arias as employees He also testified that he had observed Lauriano
at the drill press machine and that he appeared to be dozing. It should be
noted that Carl's testimony concerning whether he or Gus actually
checked the employees' work was at times unclear and changeable. At
one point in his testimony Carl testified that he never actually examined
the work of Launano or Arias and at another point he stated he could
not remember if he had done so or not. He did testify, however, that he
had inspected ruined machined pieces after Gus told him that Arias had
produced some defective work.
136 Lauriano admitted that he had worked the preceding evening as a
disc jockey until 2 a.m the following day and without any sleep at all
had come to work that morning, February 20
that it was not unusual for the Respondent to discharge
employees on the first day of a workweek, he admitted
that at the time Lauriano and Arias were discharged the
Respondent was shorthanded, having less than 10 em-
ployees in Carl's department, and that 3 of these were
discharged on that very day, Monday, February 20.137
"Gus" Karachalios testified that after Carl had in-
structed Lauriano and Arias as to the performance of
their work, one of them asked if he could have a chair to
sit on while he worked because "he was very tired," and
the other "ruined about 200 pieces." He stated that he
told Carl about the defective work and that both Laur-
iano and Arias were poor workers. He related that either
Lauriano or Arias was fired because of his poor produc-
tion and the other because he had "ruined some work"
and that Jack Kipnes was the person who had dis-
charged them. Karachalios denied ever having asked
Lauriano and Arias if they had signed authorization
cards though he acknowledged that he was aware at the
time that employees were signing cards for the Union.
The Discharge of Hector Lopez
As set forth above Hector Lopez was discharged by
the Respondent on Monday, February 20. According to
the testimony of Alex Musachio, Armando Ponce, and
Lopez himself, Lopez was fired by Irving Kipnes during
lunchtime of that day soon after Alex Musachio had
shown Kipnes the authorization cards signed by the Re-
spondent's employees.
Lopez testified that he worked for the Respondent
from late January until February 20, 1978, when he was
fired by the Respondent and during that time he had re-
ceived no complaints from management about his
work.'" Lopez stated that Hector Lopera instructed
him or how to perform his duties and that he subsequent-
ly had an argument with Lopera concerning the amount
of work he was producing. He admitted that Lopera had
advised him that the Respondent would discharge him if
he failed to produce 40 pieces, but that he told Lopera
that he was a new man and "I can only do [20] to 22
pieces a day."" He added that there were no problems
thereafter concerning his production and he received no
further complaints about it.
Lopez continued that he also had spoken to Joseph
Diaz, a lead employee in his department, about produc-
tion requirements and Diaz told him that he must
produce "so many pieces otherwise you won't work
here," and that Diaz also said, "Don't worry about it.
You'll learn as the time goes by." He added that:,
137 As mdicated above, Maria Bolta was also terminated on February
20, 1978. Further, as with many of the other witnesses both for the Re-
spondent and for the General Counsel, Carl's testimony was contradicto-
ry and inconsistent in part.
138 Lopez worked in the Respondent's paint shop glazing clocks. He
testified that when he first started working there Irving Kipnes told him
"that as soon as I learn how to glaze, there will be more money in it But
it would take time for me to learn the job that I was doing"
13 to Lopez, he was unhappy that Lopera had reported
this to Kipnes. Lopez stated, "So he ran to the boss. . Tell him that
I'm still learnmg, don't go tell that I don't know the job."
MULTIMATIC PRODUCTS
1299
I told him, you know, I only be here a couple of
weeks and it takes time to learn this kind of work.
In the' meantime, Hector Lopera was teaching me.
Then one time I did 32 pieces and Mr. Kipnes come
down here and said that was beautiful, as the time
goes by you'll learn and there will be more money
in it.
Lopez could not recall when this happened,'" however,
but stated that Lopera was present when Kipnes said this
to him 141 Lopez related that when he was discharged
Kipnes mentioned nothing to him about his allegedly un-
satisfactory work performance or production level.
Irving Kipnes testified that on his return to the plant
on Monday morning, February 20, he met with Joseph
Diaz to discuss clock production which was behind
schedule due to delays in the glazing operation." 2 He
stated that Diaz had advised him that Lopez was an un-
satisfactory worker and after observing Lopez working
at his job Kipnes decided that Lopez had in fact not
mastered the technique of glazing the clocks. Kipnes re-
lated that he then returned to his office just before 11
a.m."3 and on his subsequent visit to the paint shop told
Frank Savana, the supervisor of this operation, that he
was not pleased with the production or work perform-
ance of the shop as a whole and with Lopez' work per-
formance in particular.
Kipnes continued that he then left the molding plant,
returned to his office and checked the employee time-
cards, and at approximately 12:15 noontime he again vis-
ited the paint shop. He stated that he now observed that
Hector Lopera had completed "20-22" clocks that morn-
ing while Lopez had only completed about 11, and also
noticed that Lopera was taking time out from perform-
ing his own job to oversee and check Lopez' work.
Kipnes related that it was then that he decided to dis-
charge Lopez."4
' 4° Kipnes denied that he had ever complimented Lopez on his pro-
duction level or that Lopez had ever glazed 32 clocks in I day. At first
Kmnes testified that the Respondent kept production records of its em-
ployees and that Diaz should have kept adequate records of Lopez' daily
production, but he could not find them He then admitted that no pro-
duction records were kept of any employees by the supervisors in this
department.
14 ' Lopez testified that Lopera produced between 50-70 pieces a day,
but Lopera had been employed by the Respondent and performing this
type of work for at least 8 years.
"42 As related above, Kipnes was on vacation the previous week.
'43 Kmnes testified that while in the molding plant that morning he
had noticed that an employee named Victor Emanuel° was absent that
day. On his return to his office he asked Michele Emanuel°, one of the
Respondent's secretaries and Emanuelo's sister, where Emanuel° was. He
stated that she advised him that her brother was out sick and Kmnes then
told her that he had heard that excuse "too many times already" and that
she should tell her brother that he was fired Kipnes added that Michele
Emanuel° said she would do so and Emanuel° never appeared for work
thereafter. Michele Emanuelo did not testify at the hearing.
144 Kipnes acknowledged that Diaz' testimony that Lopez had only
produced a maximum of 12 clocks in any one day was mcorrect since
Lopez on occasion had actually produced 20-22 clocks. The evidence
here shows that the standard production norm for glazing clocks was 40
per day with the Respondent paying a bonus to its employees for any
additional clocks completed above that figure. Kipnes testified that the
previous norm had been 50 clocks per day, but that the Respondent had
reduced this to 40 clocks, offering a bonus above that figure to stimulate
production.
Kipnes testified that at approximately 12:30 p.m. he
called Lopez into a small room in the finishing plant
used as a shipping office and told him that the Respond-
ent was discharging him because of his poor work, unsat-
isfactory production record, his indifferent attitude to-
wards his job, and his poor attendance record.' 45 K ipnes
added that Lopez said "Okay" and went towards the
bathroom to "wash up."
Frank Savana testified that during the same conversa-
tion in which he had asked Irving Kipnes to speak to
Woods about Woods' latenesses, Kipnes also suggested
that he speak to Lopez because Hector Lopera was com-
plaining about Lopez' unsatisfactory work and limited
production.'" He stated that later in the afternoon on
Monday, February 20, Kipnes told him that he had dis-
charged Hector Lopez because of his low production
level. Savana added that he personally had never spoken
to Lopez about his poor work record nor checked this
out himself According to Savana, he actually does not
discharge employees, but merely recommends such
action if necessary." 7
Joseph Diaz testified that Lopez worked in the same
department as he did and that as a leadman he instructed
Lopez in the performance of his work processing doors,
trimming, patching, and sanding. He stated that he men-
tioned to Lopez that he had to work a little faster with
50 doors per day being the required production stand-
ard."8 Diaz related that he served as interpreter during
a conversation between Irving Kipnes and Hector
Lopera during which Lopera told Kipnes that Lopez
"did not want to work" and had made the statement that
"for $2.65 he was not going to bust his chops. . . ." Diaz
added that Lopera had also told Kipnes "he didn't want
to take the responsibilities for Hector Lopez' mistakes
and that . . . he did not want to bother training Hector
Lopez any longer "because he wasn't doing the job the
way he trained him." Diaz was sure that Lopez had
never produced 32 pieces in any day that he worked for
the Respondent and, in fact, had only produced 12
clocks."9
145 Kipnes testified that the previous week Lopez had left work early
one day and had not returned to work and was late twice that week. The
time records of Lopez show that he took time off during the afternoon of
Wednesday, February 15, 1978, and left work early on Friday, February
17. The records also show that Lopez punched out on Monday, February
20, at 12.39 p.m. and ceased working for the Respondent thereafter.
146 Savana testified that Joseph Diaz had told him that Hector Lopera
was complainmg that Lopez' work was "sloppy" because Lopera did not
want to be blamed for it and that Diaz had informed Kipnes about the
problems with Lopez
147 Savana testified that while he is the supervisor of the whole de-
partment, Joseph Diaz is the immediate supervisor of the glazing work-
men. Savana also testified that the standard of production for glazing
doors is 50 per day and that after a few weeks of employment when an
employee becomes familiar with the work, this standard is expected to be
maintained.
148 Diaz testified that Lopez was only under his supervision for 2 days
since he assumed charge of the workmen only when the foreman was
absent. He related that usually Lopez was directly under Hector Lopera's
immediate supervision, although Diaz is "over" Lopera. On cross-exami-
nation, however, he also testified that he was the supervisor of the paint
shop and had checked Lopez' work each day.
146 Concerning production standards, it should be noted that in their
testimony both Diaz and Savana used the production figures of an em-
Continued
1300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Other Occurrences
Hector Lopera, employed by the Respondent in the
painting and glazing department testified that about 2
days before the strike, which occurred on February 22,
1978, Irving Kipnes told him, with Diaz acting as inter-
preter since,topera does not read or speak English well,
"that if we threatened • any worker dr we told them they
should sign cards for the union, he had the law for him
and for me and he could make us go to jail." 15 ° Lopera
stated that, "I told Joe Diaz to tell Irving that I did not
have any reason to threaten anybody. And I continued
working and, he left." Lopera continued that Kipnes
asked Diaz if he had signed "a card for the union," to
which Diaz responded, "How do you know that I signed
a card?" Lopera related that Kipnes then said that "he
had seen all of the cards, and he advised him not to lie to
him." According to Lopera, Diaz told Kipnes that he
had signed an authorization card "because he wanted a
union in the company."
Joseph Diaz testified similarly concerning the above.
He testified that sometime before the strike began Kipnes
had used him as a translator to advise Lopera that, "he
did not want any fights or violence at the picket line; if
he did, he would take legal action against us." Diaz con-
tinued that on "Monday or Tuesday, somewhere along
there" and also before the strike started ICipnes had told
him,
I believe he said something like he was surprised to
see my name on the card or the list. He wanted to
know why I signed the card. I told him I didn't
know how to handle the situation. I believe he said
. . . like if you wanted a union, he would have
brought one in, or somewhere around there.
Regarding thereto, Kipnes testified that, on February
21, he had a conversation with Diaz in the paint shop,
where Diaz works, and that it concerned the Union.
Kipnes could not recall if he had asked Diaz at the time
whether he had signed an authorization card for the
Union, but he did remember that Diaz had told him that
he had signed such a card. According to Kipnes, he then
asked Diaz if he was unhappy working at the plant to
which Diaz responded that he felt "maybe conditions
could be better." Kipnes acknowledged that he had
spoken to Lopera and Diaz and told them on Wednes-
day, February 22, that he did not want any employees
threatened or any violence occurring during the strike.
He also stated that he was aware at the time that both
these employees had signed union authorization cards.
ployee named John Adams as a comparison with Lopez, Adams allegedly
producing 50-60 'doors per day after working as a glazer for only 2-3
weeks. They admitted, however, that Adams had previously been em-
ployed by the Respondent in the shop as a painter for at least 1 year al-
though Savana testified that the previous work performed by Adams was
entirely different.
150 On cross-examination Lopera testified that Kipnes had said, "that if
we threaten anybody or if we forced somebody to sign a card, that he
had a legal way against us and could make us go to jail."
The Strike
Alex Musachio testified that after learning, on Febru-
ary 21, that the scheduled meeting between the Respond-
ent's representatives and the Union had been canceled,
he returned to the Respondents' plant the following day,
Wednesday, February 22, about noontime. He related:
Well, the night before, I believe about nine employ-
ees were discharged, and on Wednesday when we
got there other people were discharged. We had a
group of employees, between 15 and 20 employees,
in the driveway of the plant, and they wanted to
know what we were going to do about all these dis-
charges and how we were going to protect their
jobs. The people then decided that they wanted to
strike the plant because of the unfair labor practices
that the employer was using, and in order to protect
their jobs they wanted to go out on strike.'"
The evidence here shows that a strike ensued at the Re-
spondent's plant on Wednesday, February 22, 1978, with
various of the Respondent's employees joining the work
stoppage and engaging in picketing.
Concerning the strike Irving Kipnes testified:
I had come in on Wednesday, making the routines.
I had heard a lot of rumors going through the plant
that this union was, in effect, going to be holding a
strike. 152 I then had a conversation with Joe Diaz
that morning, and Hector Lopera was there, and I
told them both that I did not want to see any of the
employees being threatened, I didn't want to see
any violence occurring out there at the time.
Kipnes related that after the strike began on Wednesday,
February 22, of 30 employees who had reported for
work that day 11 did not return to work after the lunch
hour, joining the strike instead.
Lopera testified that on Wednesday morning, Febra-
ary 22, he had left the plant with his wife for a sched-
uled doctor's appointment. 153 He related that on their
' is On cross-examination, I noted that Musachto at tunes gave his tes-
timony in a somewhat belligerent manner and his answers on occasion
were sometimes evasive and contradictory in part, compared to his previ-
ous testimony given on direct examination.
152 Kipnes related that employees Herbert Yakkey and Vanetta De
Santo had told him that a stnke was being planned. Kipnes testified that
he had a discussion with Yakkey about the Umon during the afternoon of
Wednesday, February 22.
i" Lopera testified that he had made a request for tune off previously
and that Kipnes had agreed knowing that Amanda Lopera was under a
doctor's care He stated that, however, when he asked Kipnes about this
that Wednesday morning Kipnes at first said, "why I was wasting so
much time m the company, that permission for me and my wife were fm-
ished, no more permission. And from that day on he didn't want relations
working in the factory. If I was going out to go to the doctor, I
shouldn't come back, I should stay home." Lopera continued that he told
Kipnes he could submit proof of the doctor's appointment and had his
wife Amanda bring the doctor's appointment notice whereupon Kipnes
gave them permission to leave the premises but to return after their visit
to the doctor. Kipnes testified that soon after this conversation with
Lopera and Diaz, Lopera requested some time off that morning to take
his wife to the doctor pursuant to a previously scheduled appointment.
Kipnes stated that he did not believe what Lopera said to be true and
Continued
MULTIMATIC PRODUCTS 1301
return to the plant Lopera saw "my fellow workers were
outside on strike with signs on strike, picket signs."
Lopera continued that Hector Lopez and Armando
Ponce now told him that the employees were on strike
because the Respondent had refused to attend the meet-
ing previously arranged between representatives of the
Respondent and the Union by the Respondent's attor-
ney. 154 Both Hector and Amanda Lopera joined the
strike on February 22, and remained out.
The February 22, 1978 Letter
Irving Kipnes testified that the Respondent sent letters
dated February 22, to all the striking employees,155
which stated, "Your failure to report to work after lunch
today is hereby considered a resignation of your job."5°
What Occurred Subsequently
Kipnes continued that on Friday, February 24, striking
employee John Adams asked Kipnes if he could return
to work and the Respondent reinstated Adams on
Monday, February 27. He testified that subsequently the
Respondent sent additional letters to all the striking em-
ployees dated March 13, 1978, which stated:
On February 22, 1978 you were notified by mail
that your failure to report to work after lunch was
considered a resignation. This was due to a misun-
derstanding. As evidenced by our reinstatement of
one of the striking employees, immediately upon his
request to return, the job of any striking employee
who has not engaged in misconduct is still available.
All we have sought is the right to have this
matter decided through a secret ballot election,
rather than through picketing.
This letter was also signed by Jack Kipnes.157
The Meeting of February 25, 1978
It is undisputed that the Respondent held a meeting of
its nonstriking employees on Saturday, February 25. Pa-
tricia Walker testified that tins meeting'took place in the
"other shop," the "secondary factory," at approximately
required Lopera to produce proof thereof. Lopera then instructed his
wife, Amanda, who worked in the Respondent's molding plant across the
street, to bring the doctor's note to Kipnes to substantiate this. After
Kipnes agreed to allow the time off, Hector and Amanda Lopera
punched out and left the plant.
151 In an affidavit previously given to a Board agent, Lopera had
stated that he was told the employees went out on strike for the reason
that "the bosses at eleven o'clock had cancelled appointment with the
lawyers that was scheduled for 6:00 p.m. that night."
155 The evidence shows that the letters were sent to the following em-
ployees: Carmen Segreto, Randolph Woods, Nicholas Melara, Hector
Lopera, Amanda Lope's% Sol Maria Cabrera, John Adams. Armando Ponce,
Yvette Padilla, Lillian Cruz, and Edison Taborda. Kipnes testified that
these letters were sent out "on advice of our [counsel] at that time."
155 This letter was signed by Jack Kipnes.
151 The Respondent sent additional letters to the striking employees
dated March 15, 1978, which characterized the strike as "unnecessary"
and offered the strikers their jobs back. Subsequently, by letter to all of
its employees dated April 10, 1978, the Respondent advised its employees
that the strike had been "abandoned" by the Union, offered strikers their
jobs back and reiterated the Respondent's position that the "legal ques-
tions involved therein should be resolved by the National Labor Rela-
tions Board."
10 to 10:30 a.m. with about "eight, ten" employees
present. 155 She related that Jack Kipnes addressed the
employees stating:
. . . he thanked us for coming in to work. He said
that as far as he was concerned, the people out on
strike had resigned. . . . And he said that their busi-
ness was good, and he promised us—and he said
there would be more raises.
Walker added that Kipnes told the employees that they
need not be concerned about the Respondent's practice
of periodic wage reviews and salary raises since this
practice would be continued.
Cynthia Donnelly testified that on Saturday, February
25, Jack Kipnes had held a meeting in the plant machine
shop with all the employees 159 at work that day. She re-
lated that Kipnes started off the meeting by saying that
there had been a lot of questions from employees who
had not joined the strike regarding what was happening
at the plant and expressing concern that the strike might
cause the Respondent to close down its operation or, if
the business continued, have an adverse affect on any
future wage increases. Donnelly agreed that Kipnes had
told the employees that they need not be concerned, that
business was good, and that the Respondent had every
reason to believe that wage increases and other benefits
would continue as they had in the past. She stated that
Kipnes told the gathered employees, "that be appreciat-
ed us coming in and that we were doing good business
and everything and that we would get more future
raises."" Donnelly also testified that at one point
during this meeting Kipnes had also said something to
the effect that, "if you want the union, you can leave."
Concerning this meeting, Jack Kipnes testified that on
Saturday, February 25, he addressed a group of nonstrik-
ing employees who had appeared for work that day be-
cause employees who had not joined the strike or the
picketing after February 22 were asking him questions
concerning the strike's effect on their jobs. Kipnes stated
that he thanked the employees for coming to work and
for their efforts in productivity. He related that Patricia
Walker expressed concern about a wage raise that had
already been granted by the Respondent, but not yet re-
ceived by the employees in their paychecks, fearing that
the strike would preclude them from receiving the raise.
He continued that the Respondent's past wage practice
had been to grant merit salary increases plus general lon-
gevity raises and he told the employees, "Well, all I
probably said was that all the conditions would be the
same in the future as they were in the past." Kipnes
added that he additionally said that as far as the Re-
sp( ,adent was concerned, the striking employees had re-
sig , ed from their jobs and a letter had gone out to the
strikers to this effect. According to Kipnes, he assured
155 Walker could name the following employees as being present at
this meeting: Fran Trojan, Cynthia Donnelly, Joseph Copeland, Arthur
Zabiela, Marvin Kaplan, herself, and Jack Kipnes.
155 Donnelly could only remember the names of a few of the employ-
ees present at this meeting: Fran Trojan, Hazel Tricks, Al, and herself.
100 Donnelly testified that Kipnes was the one who first brought up
the matter of raises at this meeting.
1302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
these employees that the Respondent was attempting to
maintain its business and that they would have their jobs
as long as this was possible. Kipnes maintained that he
had said nothing in particular about wages or salary in-
creases at this meeting.
Regarding what was said at the meeting, Joseph Cope-
land, employed by the Respondent as a maintenance man
and called as its witness, testified that Kipnes had called
all the nonstriking employees"' together at a meeting,
and while he could not remember all that Kipnes told
them, he recalled that Kipnes had said:
. . . we would have no change, nothing would be
different, that we would get our raises in future as
we had got them in the past and everything would
be going smooth and he thanked us all for staying.
He related that Kipnes also stated that:
. . . we would be getting raises . . the future
would' be better than the past because we have
more raises . . . . The business was going to be
better, so we would get more raises.162
Copeland denied that Kipnes told the employees that as
far as the Respondent was concerned, the striking em-
ployees had all resigned and that the Respondent would
not return them to their jobs.
Marvin Kaplan, a leadman 163 in the Brown & Sharp
machine department called as the Respondent's witness,
testified that at this meeting Kipnes addressed the gath-
ered employees and,
Well, he mainly assured us and thanked us for not
going out, and reassured us that there would be no
change in the way raises were given out or any
other benefits that we had . . . everything would
still go on the way they are.
Kaplan stated that Kipnes had said nothing about the
status of the striking employees nor made any reference
to them. He related that the employees at the meeting
expressed concern about raises that they were entitled to
and Kipnes told them that the Respondent would not go
out of business and regarding wage increases, "that ev-
erything would go on the way it was." Kaplan added
that he received a salary increase subsequent to this
meeting, but could not remember the date thereof.164
161 Copeland testified that there were more than 10 employees present.
162 Copeland testified that he had received four raises annually in 1976
and 1977, but did not remember about 1973, 1974, or 1975.
165 repairs and mamtams the production machinery, assigns
employees to their machines, informs them about management decisions
concerning interdepartmental transfers, but not about discharge, and as-
sists employees in performing their work Further, employees who desire
days off or to speak to management representatives make their requests
through Kaplan.
Interestingly, Kaplan was asked if he had discussed his testimony
with anyone before testifying in this proceeding and he answered no.
Thereafter, Michael Bernstein, the Respondent's counsel, responding to a
gratuitous remark made by counsel for the General Counsel, said, "Yes, I
spoke to the man [Kaplan], and yes, he's lying, but don't make a remark
like that."
Zabiela testified that at the Saturday meeting Kipnes
told the nonstriking employees that he had been asked
questions concerning union activities by various people
and that "his attorneys" were looking into it. He stated
that Kipnes explained that he had called this meeting in
order to answer the employees' questions all at the same
time rather than individually and separately. According
to ‘Zabiela, Kipnes said that the strike would not affect
the Respondent's production or business and that "every-
one would be kept working as they had in the past," and
Kipnes thanked the employees for working and keeping
up the production standards.
Zabiela related that the employees expressed concern
about raises, particularly Patricia Walker who had re-
ceived a previous salary increase, but at the time of the
meeting had not as yet realized the additional money in
her paycheck and she wanted to know what affect the
strike and the Union's organizing campaign would have
on her raise. According to Zabiela, Kipnes told them
that "raises would be granted in the future as they had in
the past. . . ." He testified that Joseph Copeland asked
Kipnes if the strikers would be returning to their jobs be-
cause "there was one person in particular that if he re-
turned then Joe Copeland would quit his job," and
Kipnes responded that "his attorneys or attorney, I'm
not certain—advised him that these people at this time
had resigned and therefore we no longer need them."
Zabiela continued that Fran Trojan raised concern about
her job should the Union get in, since she had not signed
a union authorization card and Kipnes advised her and
the other employees not to worry about their jobs be-
cause "business was reasonably good."
2. Acts of interference, restraint, and coercion
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act.
a. Interrogation of employees concerning their union
activity and support
The complaint here alleges that the Respondent inter-
rogated its employees concerning their membership in,
activities on behalf of, and sympathy for the Union in
violation of Section 8(a)(1) of the Act. The Respondent
denies this allegation.
Analysis and Conclusions
The resolution of most of the issues presented in this
case rests primarily on a determination of the credibility
of the respective witnesses here. Since it is evident from
the record that the testimony of many of the witnesses
for the respective parties was by degree equivocal and
inconsistent, at times unclear and in part evasive, defen-
sive, and unbelievable, such a determination was made
difficult and distressing at best. Therefore, after carefully
considering the evidence here, I have based my findings
on my observation of the demeanor of the witnesses, the
weight of the respective evidence, established or admit-
MULTIMATIC PRODUCTS

1303
ted facts, inherent probabilities, and reasonable inferences
that may be drawn from the record as a whole."5
The Respondent admittedly became aware of the
Union's efforts to organize its employees on Monday,
February 20. 166 Cynthia Donnelly, whose testimony I
credit,'" related that on that very same day she was
called into Jack Kipnes' office whereupon Kipnes asked
her if she had signed an authorization card for the
Union." 69 She additionally testified that Kipnes also
asked her why Eileen Darcy and Patricia Walker had
signed cards for the TJnion. Although Kipnes denied the
above, I do not believe his denial. Kipnes' testimony was
in part evasive, inconsistent, and guarded, and appeared
geared to portraying any actions attributable to the Re-
spondent's representatives in a favorable light sometimes
regarding the truth of the matter.'"
i65 Gold Standard Enterprises, 234 NLRB 618 (1978); V & W Castings,
231 NLRB 912 (1977); Northridge Knitting Mills, 223 NLRB 230 (1976).
166' See the testimony of Irving and Jack Kipnes.
167 Although it is true that Donnelly's testimony was at times unclear
and contradictory and at other times she seemed confused as to what ac-
tually occurred, in other pertinent parts her testimony was consistent, sin-
cere, and believable. Significantly, Donnelly was still in the Respondent's
employ when she testified and as such her testimony, adverse in some
respects to the positions taken by the Respondent here, was given at con-
siderable risk of economic reprisal, including possible loss of employment,
promotion, or denial of wage increases, and was therefore not likely to be
false. See Shop-Rue Supermarket, 231 NLRB 500, 505 (1977); Georgia Rug
Mill, 131 NLRB 1304, 1305 (1961). Further, Donnelly testified initially as
the General Counsel's witness and subsequently was called as a witness
for the Respondent. From her testimony and that of other witnesses, I
strongly suspect that she was alerted to the desirability of testifying in
favor of the Respondent with the implied possibility of reprisal for any
adverse testimony by at least one of the Respondent's supervisors, Arthur
Zabiela, and this may well have accounted in part for what appeared to
be at times the contradictory and confusing nature of her testimony. See
the testimony of Arthur Zabiela admitting to having discussed before-
hand some of the testimony to be given here with Donnelly and on occa-
sion with other witnesses, i.e., Alexander Jedynski and Howard Kipnes
168 I am aware that Donnelly also testified that prior to her conversa-
tion with Kmnes she had informed him that she had not signed a union
authorization card. This does not necessanly give rise to an inconsistency
meriting discrechtation of her testimony„ however, since Kipnes might
well have wanted to bring his information about Donnelly up to date or
confirm what she had previously told him or even use this question to
serve as an introduction or basis for his then inquiring into her knowl-
edge, if any, of the reasons behind Darcy and Walker's actions in having
signed such cards.
565 For example, !Climes testified that he never saw "Iunon people" ac-
tually handing out authorization cards to employees on Monday, Febru-
ary 20, yet m an affidavit given to the Board dated March 2, 1978, he
stated, "I did see the union people handing out cards at lunchtime to em-
ployees who were at lunch" In explanation, he implied that the Board
agent had incorrectly misquoted him in the affidavit although he admit-
ted having read and signed it freely. Kmnes recounted that he spoke to
Darcy and Walker on Monday, February 20, because Zabiela had told
him that these employees had said that the Union was promising the Re-
spondent's employees "a dollar an hour increase in salary and other bene-
fits" and he wanted to confirm this information In his affidavit, however,
Kipnes had given as the reason for questioning these employees that Za-
biela had told him that Darcy and Walker had voluntarily admitted that
they had "signed cards for the union" without anything more His expla-
nations for the inconsistencies between Ins testimony at the hearing and
his affidavit, namely, that the Board's agent had incorrectly recorded his
statements or that the affidavit was incomplete, was quite unsatisfactory.
His additional excuse that he relied on the Respondent's legal counsel,
who advised him to sign it, only bolsters my discrediting this part of his
testimony since it is reasonable to assume that his attorney would not
have acquiesced to his execution of this document if it did not reflect the
truth as Kinnes remembered it then. Further, Kipnes testified that it was
not unusual for the Respondent to discharge employees after their first
day of work, yet he could not recall the names of any previous employee
Steven Ezegelian testified that sometime after 1 p.m.
on February 20 Jack Kipnes came over to where he and
Cynthia Donnelly were working in the machine shop
and asked first Donnelly, then himself, whether they had
joined the Union. Ezegelian continued that later that
same day after he learned that Eileen Darcy and Patricia
Walker had allegedly been discharged for signing union
authorization cards, he told Kipnes that he was quitting
because he "didn't want to work in a shop that would
fire employees for joining a union," Although Kipnes ad-
mitted to having a conversation with Ezegelian that day,
he denied that he had questioned Ezegelian about his
union activities. ICipnes stated that Ezegelian had told
him that he was quitting the Respondent's employ be-
cause he "can't stay here under the conditions of a union
coming in, or something to that effect," with Ezegelian
never mentioning either Darcy or Walker at the time.
I credit Ezegelian's account of this conversation not
only for the reasons asserted above, concerning the
nature of Kipnes' testimony, but also because Ezegelian
was no longer in the Respondent's employ at the time he
testified and would have no apparent reason to testify
other than to his own recollection of what happened. 170
Significantly, if Kipnes' version of this conversation were
to be believed, then Ezegelian was certainly not a union
adherent and was at the least indifferent to it, having quit
rather than work in a union shop, and therefore would
hardly have testified as he did in support of the Union's
charges."'
Dominick Lauriano testified that on February 20, soon
after he returned from lunch, "Jack [Kipnes] and the
foreman" called him over and Kipnes "asked me if I
signed a card for the union." According to Lauriano,
when he responded that he had signed a card Kipnes
told him that he "shouldn't have done so." Kipnes
denied having asked Lauriano about his having signed an
authorization card."72
Again, I credit the testimony of Lauriano over that of
Kipnes for the reasons given before concerning Kipnes'
to whom this had happened and he admitted that after the discharge of
Lauriano and Arias, no employee was so discharged after only one day
of work. It should be noted that this is also contrary to the testimony of
Irving Kipnes, that it was the Respondent's policy to give new employ-
ees a chance, with sufficient time, to learn and master their jobs. This is
not to say that I disbelieved Kipnes' testimony in total. On certain issues,
as will be discussed subsequently, I do credit his testimony.
17 ° Tr-County Tube, 194 NLRB 103, 107 (1971)
i" 1 It should also be noted that Ezegehan additionally testified that he
told Arthur Zabiela, a supervisor, that he was quitting because the Re-
spondent had fired Darcy and Walker for signing authorization cards.
Zabiela, a witness for the Respondent, testified that Ezegehan had said "I
am quitting in sympathy of those that want the union" It is hard to be-
lieve that Ezegehan would give, during the same day and within a short
span of tune, diametrically opposed reasons for his leaving the Respond-
ent's employ, first to the Respondent's president and then to his own Su-
pervisor.
' 72 It would appear from the evidence here that the "foreman" who
was present during the conversation could only have been either Henry
Carl or leadman Gus Karachahos. Although they each testified at the
hearing as witnesses for the Respondent, both denied having themselves
asked Launano if he had signed an authorization card although Carl ad-
ditionally stated that he never heard Leaman° speak about the Union As
will be more particularly discussed later here, Carl's testimony was con-
tradictory in part, especially concerning the discharges of Lauriatno and
Jorge Arias.
1304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
testimony and its utter lack of believability in part. Fur-
ther, it is alleged that Kipnes unlawfully interrogated
several of the Respondent's employees as to their union
membership and activities and the record here substanti-
ated this and, as a whole, discloses a pattern of his actu-
ally having engaged in such action for various reasons,
including his unfamiliarity with the requirements of the
Act or with permissible conduct by management repre-
sentatives in labor disputes; and his admitted unhappiness
with having the Union represent the Respondent's em-
ployees in view of the Union's alleged demands, as relat-
ed to him by various employees, which might create eco-
nomic havoc and disaster for the Respondent's busi-
ness.'"
Additionally, employees Lillian Cruz and Sol Maria
Cabrera testified that Jack Kipnes had asked them, al-
though separately, whether they had signed union au-
thorization cards. Cruz stated that this had occurred on
February 20 at approximately 2 p.m. and Cabrera im-
plied that Kipnes had questioned her on that same date.
Cruz also testified that at the time Kipnes spoke to her
another employee, Carmen Segreto, was present but that
Kipnes did not interrogate Segreto about her union ac-
tivities.'" Although Kipnes did not specifically deny
the above regarding Cruz and Cabrera he did generally
deny interrogating any of the Respondent's employees
about their union sympathies or whether they had signed
authorization cards.
Although the testimony of both Cruz and Cabrera
concerning various other aspects of what occurred
during the Union's organizational campaign, particularly
about the circumstances surrounding their receiving and
signing authorization cards, contained inconsistencies and
contradictory statements, yet it is notable that in connec-
tion with her conversation with Kipnes during which he
asked her about signing the card, Cruz' testimony is con-
sistently clear and unequivocal despite her having testi-
fied at great length as both a witness for the General
Counsel and subsequently as a witness for the Respond-
ent. Additionally for all the reasons above, I credit the
testimony of Cruz and Cabrera over that of Kipnes.175
Further, Joseph Diaz testified that Irving Kipnes asked
him why he had signed an authorization card for the
Union.'" He stated that Kipnes expressed surprise "to
see my name on the card or the list" Kipnes testified that
he had a conversation with Diaz on February 21 about
the Union, but he could not recall if he had asked Diaz
whether he had signed a card, but he did remember that
Diaz told him that he had done so. I credit the testimony
of Diaz concerning this not only because Kipnes admit-
ted that he might have done so although he could not re-
'78 See the testimony of Eileen Darcy, Patricia Walker, Cynthia Don-
nelly, and Arthur Zabiela. Significantly, Kipnes testified that he asked
Darcy and Walker on February 20 if they had signed authorization cards
and the reasons for their action in doing so to confirm what had been
reported back to him by Zabiela.
174 As related previously above, Carmen Segreto was not called as a
witness by any of the parties to this proceeding.
171 It is not unusual that, based on the evidence in the record, the tes-
timony of a witness may be credited in part, while other segments thereof
are discounted or disbelieved
175 testified that this conversation occurred on the Monday or
Tuesday prior to the strike that took place on February 22.
member for sure, but also because Diaz was still em-
ployed by the Respondent when he testified.177
In the same vein Randolph Woods testified that about
a week or so after he signed an authorization card,'"
Irving Kipnes called him into his office and told him that
he had "found out" that Woods "had signed a union
card" and asked Woods if this were true. Kipnes testified
that he had in fact spoken to Woods but primarily about
Wood's latenesses, warning Woods that he would be dis-
charged if his tardiness continued. Kipnes also testified,
"and then at that time somehow it came into the discus-
sion about Union; okay. And he mentioned to me his
feelings about the union." Kipnes acknowledged that he
may have asked Woods what his thoughts about the
Union were. From all of the above, I believe Wood's
version of what was said between him and Kipnes.179
Continuing, Supervisor Arthur Zabiela admittedly
asked Eileen Darcy and Patricia Walker "why they had
signed the union cards," after they had voluntarily ad-
vised him that they had done so.18°
In addition, Maria Bolta Vasquez testified that her su-
pervisor, Gus Karachalios, had asked her if she signed an
authorization card. She stated that Lillian Cruz had
acted as interpreter between them when this happened.
Karachalios denied this. While Cruz testified that I(
chalios did use her as an interpreter when he disclu,
Bolta, she did not confirm Bolta's story that Kara.cluaos
had questioned her about her union activities. In fact, ac-
cording to Cruz, Gus already knew that Bolta had
signed a card for the Union. Further, Bolta's testimony
was so contradictory and unbelievable, particularly con-
cerning the circumstances surrounding the signing of her
authorization card, as to cast doubt on any part of her
testimony not corroborated by other independent and
credited evidence in the record. Although still not with-
out doubt, albeit the above, I do not find that the Gener-
al Counsel has sustained the evidentiary burden concern-
177 See Shop-Rite Supermarket, supra, Georgia Rug Mill, supra. Fur-
thermore, Diaz was a leadman and by implication, as evidenced by
Kipnes' surprise in his having signed a "union card," considered "loyal"
to the Respondent. This is also supported by the fact that Diaz, Hector
Lopez, and Hector Lopera all worked closely together in the paint shop
and it is reasonable to assume that Diaz knew that Lopez was active in
the Union, yet he, along with Lopera, still apprised the Respondent about
Lopez' alleged poor work performance. In view of the evidence here, it
would be unreasonable to assume that Diaz was lying about his conversa-
tion with Kipnes.
"a His card is dated February 3, 1978.
179 Although not discussed in the briefs of the parties, Darcy testified
that on February 20, 1978, Irving Kipnes asked her why she had signed
an authorization card. Also, Armando Ponce stated that on February 20
or 21, Kipnes had questioned him about signing a card. Although Kipnes
denied this I do not credit his denial. As will be more fully set forth here-
inafter, Darcy's testimony was given while she was still in the Respond-
ent's employ and impressed me with its sincerity. See Shop-Rite Super-
market, supra, and Georgia Rug Mill, supra. As to Ponce's testimony,
while I generally disbelieved much of it (as will appear clearly subse-
quently), other evidence set forth above concerning Irving Kipnes' ac-
tions leads me to believe Ponce on this point.
580 Walker testified that Zabiela had also questioned her as to what the
Union's representative had said to her when she signed the authorization
card.
MULTIMATIC PRODUCTS 1305
ing Karachalios' alleged statement in violation of the
Act. 18
The basic premise in situations involving the question-
ing of employees by their employers about union activi-
ties is that such questions are inherently coercive by
their very nature, and therefore violative of tile ACT "be-
cause of its natural tendency to instill in the minds of em-
ployees fear of discrimination on the basis of the infor-
mation the employer has obtained." 182 The Board, how-
ever, has held that in certain circumstances employers
may have a legitimate purpose for making a particular
inquiry of employees that may involve, to some limited
extent, union conduct.'" In this case the Respondent of-
fered no legitimate reason nor can I find any legitimate
purpose for such interrogation or questioning of its em-
ployees other than that it was done, when considered in
the light of the Respondent's other actions herein, for the
purpose of coercing its employees into renouncing the
Union.'" Various accompanying remarks made by the
Respondent's representatives in these conversations
wherein the interrogations occurred overwhelmingly
support this. 188 Further, the Respondent, while interro-
gating its employees, gave them no assurances against re-
prisals,'" and both Jack and Irving Kipnes conducted
their interrogations of some of these employees in their
office, the "locus of managerial authority."187
It should also be noted that the Respondent failed to
follow the Board's Struksnes case guidelines 188 the
181 Had I found otherwise, it is obvious from the record that Gus Kar-
achalios,'while not a supervisor within the meaning of the Act as stipulat-
ed to by the parties, is, however, an agent of the Respondent within the
meaning of Sec. 2(13) of the Act, acting on its behalf as alleged by the
General Counsel As the Board stated in Community Cash Stores, 238
NLRB 265 (1978), "The critical issue in making this determination
[whether an employee, not an acknowledged supervisor acted as a Re-
spondent's' agent] is whether under all the circumstances the employees
would reasonably believe that [the employeel was reflecting company
policy and speaking and acting for management." The evidence here sup-
ports the conclusion that the employees who worked in his department
reasonably believed that Karachalios reflected company policy and spoke
and acted for the Respondent. The evidence in fact shows that the em-
ployees Who worked with Karachalios considered him as their immediate
supervisor. Pacific Industries of San Jose, 189 NLRB 933 (1971); see also
Clevenger Logging Inc., 220 NLRB 768 (1975); Broyhill Co., 210 NLRB
288 (1974). In view thereof, I find and conclude that Gus Karachalios
an agent of the Respondent within the meaning of Sec. 2(13) of the Act,
acting on its behalf at all times material 'here
182 NLRB v. West Coast Casket Co., 205 F.2d 902, 904 (9th Cir. 1953).
188 P. B. & S. Chemical Co„ 224 NLRB 1, 2 (1976); Johnnie's Poultry
Co., 146 NLRB 770 (1964), mit denied 344 F.2d 617 (8th Cir. 1965).
184 Jefferson National Bank, 240 NLRB 1057 (1979); World Wide Press,
242 NLRB 346 (1979), Seal Trucking, 237 NLRB 1091 (1978); Hilton Inn,
232 NLRB 873 (1977).
188 For example, when Jack Kipnes interrogated Lillian Cruz about
her signing a union authorization card, he told her she would be fired if
she had done so. Additionally, when Irving Kipnes queried Randolph
Woods about this and was mformed by Woods that he had signed a card,
Kipnes then threatened Woods with discharge if he ever came to work
late again.
188 Thermo Electric Co., 222 NLRB 358 (1976), enfd. 547 F.24 1162
(3d Cir. 1977); NLRB v. Cement Transport, 490 Fld 1024,-1028 (6th Cir.
1974), cert denied 419 U S. 828 (1974); Trinity Memorial Hospital of
Cudahy, 238 NLRB 809 (1978).
181 Meehan Truck Sales, 201 NLRB 780, 783 (1973).
188 Struksnes Construction Co., 165 NLRB 1062, 1063 (1967).
standards by which a poll is determined to be lawful, if
the Respondent's actions were designed by it tO be in ac-
tuality a poll of its employees to determine the truth of
the Union's allegation of majority representation when it
demanded recognition as the collective-bargaining repre-
sentativeOf the Respohdent's employees iri an appropri-
ate unit. As set fOrth in Struksnes:
Absent unusual circumstances, the polling of em-
ployees by an employer will be violative of Section
8(a)(1) of the Act unless the following safeguards
are observed: (1) the purpose of the poll is to deter-
mine the truth of a union's claim of majority, (2)
this purpose is communicated to the employees, (3)
assurances against reprisal are given, (4) the em-
ployees are polled by secret ballot, and (5) the em-
ployer has not engaged in unfair labor practices or
otherwise created a coercive atmosphere.
Significantly, in response to the interrogation by Jack
Kipnes, employees Lillian Cruz and Steven Ezegelian
denied any involvement with the Union. The Board has
held in similar circumstances that employees' denials of
union involvement show the actual coercive effect of the
Respondent's interrogation and the fear of reprisal that
acknowledgement might engender.188
The test applied in determining whether a violation of
Section 8(a)(1) of the Act has occurred its "whether the
employeeengaged in conduct which, it May reasonably
be said, tends to interfere with the free exercise of em-
ployee rights under the Act." 18 ° Applying that test, I
'find that the Respondent by interrogating its employees,
as set forth above, has interfered with, restrained, and
coerced its employees in the exercise of their rights guar-
anteed in Section 7 of the Act and has thereby violated
Section 8(aX1).181
b. Threats and warnings
The complaint here alleges that the Respondent threat-
ened and warned its employees that they would be dis-
charged and that its plant would have to be closed down
if the employes became or remained members of the
Union, or gave any assistance or support to it, all in vio-
lation of Section 8(a)(1) of the Act, which allegations the
Respondent denies.
Analysis and Conclusions
As testified to by both Eileen Darcy and Patricia
Walker, Jack Kipnes, after learning op February 20 that
they had signed union authorization cards, summoned
them to his office. Arthur Zabiela, who brought Darcy
and Walker to Kipnes' office, also remained as a party to
this conversation. Darcy testified that Kipnes told them,
"What's the matter girls? Don't you like your jobs here?
188 Backstage Restaurant, 232 NLRB 1082 (1977).
180 Electrical Fittings Corp., 216 NLRB 1076 (1975).
191 Jefferson National Bank, 240 NLRB 1057 (1979); World Wide Press,
242 NLRB 346 (1979); Seal Trucking, 237 NLRB 1091 (1978); Stride Rite,
228 NLRB 224 (1977); Hilton Inn, above, C E Stores, 221 NLRB 1321
(1976); L.O.F. inc., 216 NLRB 845 (1975), Florida Steel Corp., 215
NLRB 97 (1974).
1306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Where are your heads? . . . and then he said, you know,
he was going to have to start laying off some people. He
didn't mention any names." Darcy also testified that
Kipnes said, "Artie, I'm sorry, I'm going to have to close
the shop down and that's it." Walker testified similarly.
Walker related that Kipnes, besides having stated the
above also said "if the union came in, he'd have to close
the place down and start laying people off."92
Kipnes admitted asking Darcy and Walker if they had
signed the cards and the reasons for their having done
so. He continued, "Now, after the girls told me this, I
then turned to Artie and I said, 'Artie, you know, some-
thing like this would require possibly closing down the
plant because we can't assume these kind of losses." Za-
biela testified that after Kipnes questioned Darcy and
Walker about their having signed authorization cards and
the reasons therefor, Kipnes then directed his remarks al-
legedly to Zabiela alone, although it is admitted that
Darcy and Walker heard this also, stating:
we can't run a business with these types of over-
heads, and now we're looking at additional costs,
additional everything, I just couldn't see my way
clear if this was to come about or if this was to be a
reality, we could no longer survive in business, it
would mean closing the plant down and the laying
off of all the personnel.'"
While I credit the above account of what was said as
given by Darcy and Walker,'" a close analysis of the
testimony of all the witnesses engaged in this particular
conversation, notably similar in nature in most respects,
shows that the unlawfulness of Kipnes' statements were
encompassed in his manner of delivery, the timing there-
of and the obviously deliberate circumstance of his al-
lowing Darcy and Walker to overhear his remarks con-
cerning the closing of the Respondent's business and the
layoff of its employees. That Kipnes was disturbed by
employee involvement with the Union is obvious. On
discovering that Darcy and Walker signed authorization
cards he summoned them, by means of their supervisor,
to his office. Either in a loud or angry tone or yelling at
Darcy and Walker he questioned these employees about
their union activities and then immediately apprised
them, albeit indirectly since his remarks were directed at
Zabiela, that if the Union gets in the Respondent will be
compelled to close its plant. Based on the above, I
strongly believe that Kipnes' conduct was threatening
and coercive in nature and this is most vividly illustrated
and, in fact, confirmed by Darcy's action in leaving
work soon thereafter in the belief that she had or would
be fired that very day because the Respondent knew that
she signed an authorization card for the Union. Her offer
192 Walker testified that Kipnes was yelling at them dunng this con-
versation.
195 Zabiela testified that Kipnes did not scream at Darcy and Walker
during the conversation.
194 When they testified both Darcy and Walker were still employed
by the Respondent See Shop-Rite Supermarket, supra, Georgia Rug Mills,
supra Further, as Darcy testified to believably and sincerely, she did not
desire to "hurt" the Respondent in any way, including testifying adverse-
ly to it, and her testimony, which actually is damaging to the Respond-
ent's case, thereby suggests the truth rather than prevarication.
to Irving Kipnes to retrieve her signed authorization
card and to negate it, made after Donnelly told them
that they could be fired signing a card made even before
she had spoken to Jack Kipnes, only enforces this belief.
Kipnes was well aware of the effect his statements to Za-
biela would have on Darcy and Walker, and were calcu-
lated to induce these employees to refrain from continu-
ing their support of the Union.
Lillian Cruz testified that on February 20, 1978, Jack
Kipnes approached her while she was working and asked
her if she had filled out a "union card." Cruz stated,
"And I told him if I did, what will happen? He said if I
did, he would have to fire me. So I told him no." Al-
though Kipnes denied this, for the reasons set forth
above, I credit Cruz' testimony.
Dominick Lauriano testified that Jack Kipnes had
asked him whether he had signed an authorization card
and when he acknowledged doing so Kipnes said, "I
shouldn't have done that. We don't allow union mem-
bers." Lauriano related that he then offered to get his
signed card back from the union representative.195
Randolph Woods testified that a week or so after he
signed an authorization card for the Union he was called
into Irving Kipnes' office, wherein Kipnes told him that
he had found out that Woods had signed the card and
was surprised that Woods had done so, "after all of the
chances that he had given meat the job." Woods contin-
ued:
He told me that he could fire me right now if he
wanted . . . he asked me did I sign it? I said yes,
you know, because I did. He then told me that his
company—that his company men did not want no
union there and if the employees there did not like
the wages, it was too bad. . . . So then he went
into my latenesses, about me being late and that if I
came in late any more . . . that I was going to be
fired. . . .
Kipnes acknowledged having a conversation with
Woods on February 20 in which he discussed Woods'
tardiness, Woods' feelings about the Union, and that the
Respondent would have to discontinue operations if the
Union's excessive demands were to be realized. He also
,told Woods that if his tardiness continued the Respond-
ent would fire him
As indicated above, Kipnes' testimony was at times
evasive and guarded, and more particularly his account
of this conversation is just not believable. Kipnes admit-
ted that he might have asked Woods about his feelings
towards the Union. When asked why, he stated that he
was upset with Woods' continuing lateness and had de-
cided to speak to him about it at Frank Savana's sugges-
tion. If his account is to be credited, to what purpose
could it have served to also question Woods about his
union sympathies and whether he had signed an authori-
zation card, after having already advised him that contin-
ued lateness would result in Woods' discharge, if not to
195 While Kipnes denied making such a statement, I credit Lauriano's
testimony concerning this for the reasons appearing above and those dis-
cussed subsequently here.
MULT/MATIC PRODUCTS 1307
imply that because the Respondent already had an exist-
ing sufficient reason to fire Woods immediately, it would
do so if he persisted in supporting the Union. Clearly,
the implication of threat was there and was unlawful.
Additionally, as testified to by Cynthia Donnelly,
Arthur Zabiela on February 20 told Donnelly that she
should not go outside the plant where other employees
were "signing cards for the union" and not to sign a
card. Also on that same day, according to the testimony
of Eileen Darcy and Patricia Walker, Zabiela told them
that they should not have signed authorization cards for
the Union. Although Zabiela denied the above, I do not
credit his denials. For the reasons set forth above in con-
sidering other parts of their testimony, I credit the ac-
counts of their conversations with Zabiela given by Don-
nelly, Darcy, and Walker.196
As stated by the Board in General Stencils, 195 NLRB
1109 (1972):
A direct threat of loss of employment, whether
through plant closure, discharge, or layoff, is one of
the most flagrant means by which an employer can
hope to dissuade employees from selecting a bar-
gaining representative.
The express and implied threats and warnings made by
Jack and Irving Kipnes and Arthur Zabiela to the Re-
spondent's employees that they 'would or could lose their
jobs if they signed union authorization cards and that the
Respondent would be compelled to close its plant and
lay off its employees if the Union came in, all constitute
violations of Section 8(a)(1) of the Act since such state-
ments clearly tend to coerce, intimidate, and discourage
employees from engaging in any protected activity under
Section 7 of the Act for fear of reprisals.'"
Further, by letter dated February 22, 1978, sent to the
Respondent's striking employees, the Respondent in-
formed these employees that it deemed the "failure to
report to work" as a "resignation of your job." Addition-
ally, at a meeting held with its nonstriking employees on
February 25, 1978, the Respondent, through Representa-
tive Jack Kipnes, stated that it deemed the striking em-
ployees to have voluntarily resigned their employment.
105 General Counsel also alleges in its brief that Irving Kipnes un-
lawfully threatened Hector Lopera and Joseph Diaz when he told them
that "if they told workers to sign cards for the Union he would have
them put in jail" I do not believe that this is what was actually said.
Joseph Diaz testified that Kipnes said, "that he did not want any fights or
violence at the picket line; if he did, he would take legal action against
us." Kipnes testified that on February 22 he told Diaz and Lopera that he
did not want any employees threatened or any violence occurring during
the strike. According to Lopera's additional testimony Kipnes allegedly
stated, "that if we threatened anybody or if we forced somebody to sign
a card that he had a legal way against us and could make us go to jail."
Lopera continued, "I told Joe Diaz to tell Irving that I did not have any
reason to threaten anybody" Significantly, Lopera then denied "threaten-
ing any workers in order to obtain authorization cards from them." It is
clear from the above that if Kipnes mentioned anything about the signing
of authorization cards, as stated by Lopera, it was in the context of warn-
ing Lopera not to threaten or coerce any of the Respondent's employees
m order to obtain their signatures on the cards I therefore do not find
that Kipnes' statement violated Sec 8(a)(1) of the Act.
197 NLRB v. Gissel Packing Co., 395 U S 575 (1968); Hanover House
Industries; 233 NLRB 164 (1977); Lemon Tree, 231 NLRB 1168 (1977),
enfd 618 F.2d 51 (9th Cir. 1980).
Threats to discharge employees for engaging in statu-
torily protected strike action are violations of the Act
constituting infringements on the employee's right to
engage in self-organizational activities. Therefore, I find
and conclude that the February 22, 1978 letter sent to
the striking employees and the statement made by
Kipnes at the meeting on February 25, 1978, constitute
- express and implied threats of discharge and as such are
violative of Section 8(aX1) of the Act.199
c. Impressions of surveillance
The complaint alleges that the Respondent created the
impression of surveillance of the meeting places, meet-
ings, and activities of the Union, and the concerted ac-
tivities of its employees conducted for the purpose of
collective bargaining and other mutual aid and protec-
tion.
Analysis and Conclusions
As set forth above, Irving Kipnes told employee Ran-
dolph Woods that "he had found out that I had signed a
union card and after all of the chances that he had given
me at the job, I was the last person that he had expected
would sign the card," Kipnes also told employee Joseph
Diaz that "he was surprised to see my name on the card
or the list. . . . He wanted to know why I signed the
card." Additionally, as testified to by Armando Ponce,
Kipnes said to him, "I understand that a lot of employees
have signed\ application cards for the union." Although
Kipnes denied making these statements, I do not credit
his denial for the reasons set forth above.
In determining whether a respondent created an im-
pression of surveillance, the test applied by the Board is
whether employees would reasonably assume from the
statements or actions in question that their union activi-
ties had been placed under surveillance. 199 In consider-
ing the above statements, I find that such an assumption
is reasonable. The statements in these instances were not
in the nature of rumor but of positive fact and well could
108 Matlock Truck Body & Trailer Corp., 217 NLRB 346 (1975), Na-
tional Tape Corp. 187 NLRB 321 (1970). The evidence shows that the
Respondent, by letter dated March 13, 1978, notified the striking employ-
ees that it was correcting its misunderstanding concerning striking em-
ployees being deemed to have resigned as mistakenly set forth in the pre-
vious letter of February 22, 1978, and that any of the strikers who re-
quested their jobs back would be reinstated However, this subsequent
letter does not cure the violation of Sec 8(a)(1), which arose from its
February 22, 1978 letter, nor Kipnes' statement made at the February 25,
1978 meeting, See Matlock Truck Body & Trailer Corp., supra; Iron Work-
ers Local 733 (Kerrigan Iron Works), 108 NLRB 933 (1954), affd 219 F.2d
874 (6th Qr. 1955), cert. denied 350 U S. 835 (1955) Although this con-
duct was not specifically pleaded in the complaint as a separate violation
of Sec. 8(a)(1) of the Act, the courts and the Board have held that if the
conduct complained of "has been fairly tried by the parties" the issue in-
volving such conduct can be decided regardless of whether it has been
specifically pleaded. Further, the facts surrounding this violation were
part and parcel of the violative action alleged in the complaint and were
fully litigated at the hearing. Cosmo Graphics; Inc., 217 NLRB 1061
(1975); Rochester Cadet Cleaners, 205 NLRB 773 (1973), Phillips Indus-
tries, 172 NLRB 2119 (1968). The Respondent had full opportumty to
cross-examine and call witnesses of its own on this issue as it did and did
not object to such evidence See J. C. Penney Co. v. NLRB, 384 F 2d
479, 482-483 (10th Cir. 1967); Pacific Southwest Airlines, 201 NLRB 647,
652 (1973), enfd 550 F.2d 1148 (9th dr. 1977)
199 Schrementi Bros., 179 NLRB 853 (1969).
1308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
give the employees involved the impression that their ac-
tivities were under surveillance. 200 In support of the
above stands, the testimony of Jack and Irving Kipnes
that on February 20, 1978, and from a position outside
the plant visible to the Respondent's employees, they
watched, although for a short time, the Union's repre-
sentatives distributing authorization cards to the employ-
ees.
In view of the above, I find and conclude that the Re-
spondent, by the above actions of its representatives, cre-
ated the impression among its employees that their ac-
tivities on behalf of the Union were under surveillance,
and thereby violated Section 8(a)(1) of the Act."'
d. Promises of wage increases
The General Counsel alleges in brief that the Respond-
ent unlawfully promised wage increases to its nonstriking
employees on February 25, 1978, to induce them to re-
frain from joining or supporting the Union. As can be
readily inferred from the evidence submitted by the Re-
spondent concerning this, the Respondent denies having
made such promises.202
"° Contrast, G. C. Murphy Co., 217 NLRB 34, 36 (1975).
201 Shore Hospital, 229 NLRB 363 (1977), enf. in pertinent part
571 F 2d 677 (1st Qr. 1978); Richlands Textile, 220 NLRB 615, 625
(1975).
The General Counsel asserts in brief that when Irving Kipnes cau-
tioned Joseph Diaz and Hector Lopera not to threaten violence against
any of the Respondent's employees during the strike (made at a time
when no strike was in progress nor notice given to the Respondent that
there was to be a strike), the Respondent unlawfully created the impres-
sion of surveillance of the union activities of its employees in violation of
Sec 8(a)(1) of the Act. Although I agree that this was violative of the
Act, I reach this conclusion on a different basis. KiPnes testified that he
spoke to Diaz and Lopera about the strike on Wednesday, February 22,
1978, because there were "a lot of rumors going through the plant" that
mornmg that the Union was going "to be holding a strike." Although
both Diaz and Lopera testified that this happened a day or two before
the strike occurred, they actually were unsure about the date. It would
appear, based on the evidence here, that Kipnes' account of when this
conversation took place is more accurate as neither Diaz nor Lopera be-
lievably contradicted Kipnes' testimony concerning the strike rumors
commencing on February 22, 1978, the day the strike actually com-
menced. Kipnes' warning to them seems more reasonably made at a time
when the Respondent heard rumors about a strike rather than when there
was no indication that a strike would ensue and is better explained by this
having occurred on the day of the strike. However, be that as it may,
Kipnes did direct his remarks to Hector Lopera, who had not only
signed an authorization card himself, but had also distributed cards for
the Union and obtained employees' signatures thereon. How would
Kipnes know to confront Lopera with such a warning unless surveillance
of some kind had been employed by the Respondent to ascertain that
Lopera was indeed one of the more active union adherents among its em-
ployees?
In view of thetabove, I find that by its above action, the Respondent
violated Sec. 8(a)(1) of the Act.
202 This allegation was not specifically pleaded in the complaint al-
though evidence was introduced by both the General Counsel and the
Respondent concerning this. As the conduct of the Respondent is alleged
to be violative of the Act and is closely related to other events that were
alleged to be unfair labor practices, and the Respondent did not object to
the receipt of such evidence and, in fact, closely and thoroughly cross-
examined the witnesses who gave such testimony and called witnesses of
its own to testify thereon, and the issue "having been fairly tried by the
parties, I will consider it in this decision." .1. C. Penney Co. v. NLRB,
supra; Pacific Southwest Airlines, supra; Farm Fresh Supermarket, 203
NLRB 891 (1973).
Analysis and Conclusions
The Respondent held a meeting with its nonstriking
employees on Saturday, February 25, 1978. 203 Patricia
Walker testified that Jack Kipnes, the Respondent's
president, addressed the gathered employees and, "he
thanked us for coming in to work. He said that as far as
he was concerned, the people out on strike had resigned.
And he said there would be more raises." She continued
that Kipnes also said that "business was good and the
future looked good. And that there would be more
raises." Walker added that Kipnes assured the employees
that they need not be concerned about the Respondent's
policy of wage reviews and raises, since this practice
would continue.
Cynthia Donnelly, although admitting that her remem-
brance of what Kipnes said was somewhat unclear, testi-
fied that Kipnes had told the employees that he had been
asked numerous times by employees who had not joined
the strike what was happening, these employees express-,
ing concern that the strike might cause the ,Respondent
to close its operation or to negate any future wage in-
creases. She related that Kipnes "explained that he ap-
preciated us coming in and that we were doing good
business and everything and that we would get more
future raises." According to Donnelly, Kipnes also as-
sured the employees that the shop would not close
down, that business was doing well, and that wage in-
creases would continue as they had in the past. s
Kipnes testified that after the strike had begun on Feb-
ruary 22, 1978, nonstriking employees had been asking
him many questions concerning the strike and its effect
on their working conditions and the Respondent's con-
tinued operations. He related that he then held a meeting
on February 25, 1978, with the employees who had ap-
peared for work that Saturday morning in order to
answer all their questions at one time and to allay their
fears. Kipnes stated that he thanked them for coming in
to work and for their maintaining productivity. He re-
counted that Patricia Walker had asked about their raise
increases that had already been granted prior to the
strike but as yet not received and she feared that the
strike might preclude her from getting the raise.204
Kipnes added, "Well, all I probably said was that all the
conditions would be the same in the future as they were
in the past."203
Leadman Marvin Kaplan testified that Kipnes had told
the employees that "there would be no change in the
way raises were given out or any other benefits that we
had . . . everything would still go on the way they
were.' ,206 Joseph Copeland, another of the employees
203 to the evidence here, there were "eight to ten" employ-
ees present including among others, Patricia Walker, Cynthia Donnelly,
Fran Trojan, Hazel Fricics, Joseph Copeland, Marvin Kaplan, Arthur Za-
biela, and Jack Kipnes.
204 testified that it was Kipnes who raised the issue of wage
increases at this meeting.
205 Kipnes testified that the Respondent's wage practice was to grant
merit raises and general raises for longevity during the course of the
year
2°6 Interestingly, Kaplan also testified as follows:
Continued
MULTIMATIC PRODUCTS 1209
present, testified that Kipnes had said that the employees
would "get our raises in future as we had got them in
the past." However, he also testified that Kipnes said,
"We would be getting raises. . . . The future would be
better than the past because we have more raises. . . .
The business was going to be better, so we would get
more raises."
Arthur Zabiela gave perhaps the most detailed account
of any of the witnesses as to what Kipnes had told the
employees at this meeting. He testified that Kipnes told
the nonstriking employees that he had been asked ques-
tions concerning union activities by employees and that
"his attorneys" were looking into it. According to Za-
biela, Kipnes also stated that the strike would not affect
the Respondent's production or business and the employ-
ees present there would retain their jobs; Kipnes said
that raises would be given in the future as they had in
the past; that Kipnes, responding to a remark by Joe Co-
peland that if a particular striker was allowed to return
to his job Copeland would quit, told the employees that
he had been advised by his attorney that the strikers had
resigned and f hat the Respondent no longer needed
them; and that Kipnes assured employee Fran Trojan
that her job was secure when 2he asked him what would
happen to her if the Union got in as she had not signed
an authorization card. Zabiela also testified that he be-
lieved Patricia Walker had mentioned something about
raises because she had received a previous wage increase
but had not, at the time of this meeting, received the in-
crease in her paycheck.
As indicated above the testimony of most of these wit-
nesses contained inconsistencies and contradictions and
was at times unclear although not necessarily concerning
this particular issue. As also set forth above and for the
same reasons, however, I credit the testimony regarding
Walker, Donnelly, and particularly that of Joseph Cope-
land. Again these witnesses were still employed by the
Respondent at the time they testified and their testimony
as such, adverse to the Respondent, was given at a risk
of economic reprisal, including possible loss of employ-
ment, and therefore unlikely to be untr.x. 2 " I was im-
pressed with their attempts to recite what actually oc-
curred to the best of their recollection and as truthfully
as possible despite undergoing, in the case of Donnelly
and Walker, lengthy dii ect, cross, redirect, and recross-
examination.
As the United States Supreme Court stated in NLRB
v. Gissel Packing Co., 395 U.S. 575, 617-618 (1969):
Any assessment o" the precise scope of employer
expression, of cours., „ must be made in the context
of its labor relatior setting. Thus, an employer's
rights cannot outweigh the equal rights of the em-
ployees to associate freely, as those rights are em-
bodied in § 7 and protected by § 8(a)(1) and the
Q, Did Jack Kipnes say anything to the effect that employees
would be getting more wage increases than they had been receiving
m the past?
A. Well, it's up to business It's how the company does.
Kaplan then added that ICipnes had riot actually said this but that it
was Kaplan's own thought on the subject.
207 Shop-Rite Supermarket, supra; Georgia Rug Mill, supra.
proviso to § 8(c). And any balancing of those rights
must take into account the economic dependence of
the employees on their employers, and the neces-
sary tendency of the former, because of that rela-
tionship, to pick up intended implications of the
latter that might be more readily dismissed by a
more disinterested ear.
• • ' •
If there is any implication that an employer may or
may not take action solely on his own initiative for
reasons unrelated to economic necessities and
known only to him, the statement is no longer a
reasonable prediction based on available facts.
As the Supreme Court in the Gissel case further stated:
[A]n employer is free to communicate to his em-
ployees any of his general views about unionism or
any of his specific views about a particular union,
so long as the communications do not contain "a
threat of reprisal or force or promise of benefit." He
may even make a prediction as to the precise effect
he believes unionization will have on his company.
In such a case, however, the prediction must be care-
fully phrased on the basis of objective fact to convey
an employer's belief as to demonstrably probable
consequences beyond his control. . . . See Textile
Workers v. Darlington Mfg. Co., 380 U.S. 263, 274
fn. 20 (1965). [Emphasis added.]
The Respondent in its brief stated:
There is nothing impermissible about an employer,
whose record includes past wage increases, assuring
employees, even during an organizational campaign,
that future business looked promising and their
wage increases would continue. This is especially so
when the employer is assuring employees that they
need not be concerned about future wage increases
because of a strike.1
1 Subsequent to the strike no employee received any more
raises than be/she would have been entitled to in the normal
course.
I agree, but that is only in part what happened here.
According to the credited testimony here, Kipnes not
only assured the nonstriking employees that future raises
would continue to be granted as they had in the past but
also promised that "The future would be better than the
past because we have more raises. . . . The business was
going to be better, so we would get more raises." (Em-
phasis added.) In this same speech to these employees,
Kipnes related that the Respondent considered the strik-
ing employees to have resigned their jobs an that the
Respondent did not need these employees any longer.
Considering the Respondent's statements as a whole,
its other unlawful action here and in view of the above, I
am inescapably lead to the conclusion that implicit in
Kipnes' speech given to the nonstriking employees was
the promise of more .and better wage increases designed
to discourage union sympathy or activity on the part of
1310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
these employees. I therefore fmd and conclude that the
Respondent by promising to grant its employees more
and better wage increases in the future under the circum-
stances present here violated Section 8(a)(1) of the
Act.2°8
e. Other 8(a)(1) violations
Additionally, Diaz testified that Irving Kipnes stated,
"like if you wanted a union, he would have brought one
in, or somewhere around there." The General Counsel
asserts that the Respondent thereby "unlawfully urged
and directed employees to allow them to sponsor a labor
organization of Respondent's choosing." I agree. The im-
plication of Kipnes' remark is clear and when viewed in
the context of its other unlawful conduct here, which its
employees were aware of, violates Section 8(a)(1) of the
Act.
C. The Unlawful Discharges
Section 8(a)(3) of the Act prohibits an employer from
discriminating against its employees regarding hire,
tenure, and other terms and conditions of employment
for the purpose of encouraging or discouraging member-
ship in a labor organization.
The complaint alleges that the Respondent discharged
employees Dominick Lauriano, Jorge Arias, Maria Bolta
Vazquez, Luz Fuentes, and Hector Lopez about Febru-
ary 20, 1978, and failed and refused to reinstate them,
and additionally failed and refused to reinstate employee
Eileen Darcy in a timely and prompt manner, all because
they joined or assisted the Union and sought to bargain
collectively through representatives of their own choos-
ing and engaged in other concerted activities for the pur-
poses of collective bargaining or mutual aid or protec-
tion, in violation of Section 8(a)(3) and (1) of the Act.
Although the Respondent admits that it discharged Laur-
iano, Arias, Bolta, and Lopez, it denies that these dis-
charges were violative of the Act. Concerning Fuentes
and Darcy, the Respondent alleges that these employees
voluntarily quit their employment and that Darcy was
subsequently reinstated thereafter.
1. Dominick Lauriano and Jorge Arias2"
Lauriano and Arias began working for the Respondent
on Monday, February 20, 1978. That same day both
Lauriano and Arias signed union authorization cards
during their lunchbreak and the Respondent discharged
them at the end of the day. According to Lauriano's tes-
timony, during the early afternoon, Jack Kipnes ques-
tioned him about his having signed the card and when
Lauriano admitted that he had done so, Kipnes remarked
that Lauriano "shouldn't have done that. We don't allow
union members." 2 " Lauriano continued that later that
208 Manor Nursing Home, 233 NLRB 665 (1977); Hanover
House Industries, 233 NLRB 164 (1977); Hubbard Regional Hospital, 232
NLRB 856 (1977), Planters Peanuts, 230 NLRB 131 (1977), Rancher Co.,
229 NLRB 217 (1977), Baker Mfg Co., 218 NLRB 1295 (1975), enfd. 564
F.2d 95 (5th Cir. 1977); Chris & Pats of Hollywood, 196 NLRB 866 (1972)
202 As indicated above Jorge Arias did not appear or testify at the
hearing.
210 Launano testified that he also saw Kipnes go over to another new
employee (Arias) soon after Ripnes had questioned him and although a
same day his foreman, who had also been present during
the conversation between Kipnes and himself, told Laur-
iano that "I shouldn't have signed the card for the
union." Lauriano related that when he was discharged at
the end of the day the foreman advised him "that they
won't be needing me no more because they are slow and
that if they need me, they will call me."
The Respondent denies the above and asserts that
Lauriano and Arias were discharged because of their un-
satisfactory work performance and their exceedingly low
levels of production. Jack Kipnes testified that Foreman
Henry Carl had recommended that Lauriano and Arias
be let go because they were unable to properly perform
their work and that he concurred in this after personally
observing Lauriano's slow rate of work. 211 While Carl
did not recall if he or Kipnes actually discharged Laur-
iano and Arias, the rest of his testimony was similar in
nature to that given by Kipnes. Gus Karachalios, whom
Carl identified as the leadman immediately supervising
the work of Lauriano and Arias, testified that they were
discharged because of their unsatisfactory and poor work
performance and one of them had "ruined some
work."212
Determining the credibility of the above witnesses in
the context of the issue of Lauriano and Arias' discharge
presents some difficulty as the testimony of all these wit-
nesses was in part contradictory and at times inconsistent
and unsatisfactory. Other factors aside from their testi-
mony, however, lead me to credit Lauriano's account of
his discharge.
The Respondent admittedly became aware that the
Union was actively organizing its employees about
lunchtime on Monday, February 20, 1978. As the record
clearly shows, the Respondent did not want its employ-
ees represented by the Union and demonstrated its union
animosity by engaging in unlawful interrogation, threats,
and surveillance of its employees commencing that day.
As I found above, Kipnes had interrogated Lauriano
(possibly Arias also) as to his union activities and learned
that Lauriano had indeed signed an authorization card
for the Union. At the end of that very workday, Laur-
iano and Arias were discharged by the Respondent.
The Respondent's alleged reasons for the discharge of
Lauriano and Arias, their "poor production" and "failure
to maintain acceptable standards," even assuming they
were not pretextual, do not tell the full story. It is clear
from the evidence here that the Respondent was in con-
stant need of new employees due to its high rate of em-
ployee turnover and the limited availability of persons
willing to perform the required type of work called for
on the job. The Respondent was also aware of the em-
ployment background of these employees, which un-
equivocally suggested their initial lack of any preparation
or skill for this type of work. Yet they were hired pre-
conversation ensued between them, Lauriano could not overhear what
was said
211 Kipnes testified that Carl had told him that Lauriano appeared to
be "dozing or sleeping" on the job, but later in his testimony he stated
that Carl had said nothing about this and the first time that he heard any-
thing about Lauriano's "dozing or sleeping" at work was at the hearing.
212 Carl testified that 1Carachahos had told him that It was Arias who
had produced the defective work.
MULTIMAT/C PRODUCTS 1311
suniably in desperation of need for workers. Additional-
ly, Irving Kipnes testified that it was the Respondent's
policy to give new employees the opportunity to learn
their job and perform their work over a reasonable
period of time, a statement that carries with it the impli-
cation that new employees would be given more than 1
day's trial basis to effectively learn the work.218
Further, in support of its contention that Lauriano and
Arias were discharged because of poor performance, the
Respondent offered evidence of Lauriano's production
figures and compared them with the output of another
substantially more experienced employee, Carmen Se-
greto. While the parties here analyzed these production
figures in their briefs, with each finding something there-
from alleged to substantiate their respective positions, I
cannot find that this particular evidence in and of itself
was sufficient to sustain either party's position. 214 Con-
tinuing, Lauriano testified uncontradictedly that when he
first started that morning he had incorrectly performed
the machine operation required, but after the foreman in-
structed him as to the proper procedure, he had no fur-
ther difficulty with producing the required item. One
would imagine that with Lauriano having ruined some
machined "pieces" early that morning and Jack Kipnes
learning that Lauriano and Arias were slow producers,
and with this being considered of sufficient magnitude to
warrant dismissal, that the Respondent would have done
so immediately. 218 Or if that was insufficient to cause his
immediate dismissal, then presumably at least before
noontime when Lauriano was allegedly observed to be
dozing, sleeping, or working slowly. Significantly, how-
ever, nothing was done to accomplish the discharge of
Lauriano and Arias until after he had assigned a union
authorization card and the Respondent became aware
later that afternoon that he had done so.
In view of all the above, the knowledge of the Re-
spondent of Lauriano's union activities (his signing of a
union authorization card), the Respondent's virile union
animus, and the timing of the discharge, I am inexorably
lead to the conclusion that Lauriano was discharged be-
cause he signed an authorization card and but for this he
would not have been fired at the end of the day.
In Wright Line, 251 NLRB 1083 (1980),218 the Board
set forth the basic criteria for "examining causality in
cases alleging unlawful discrimination": The General
Counsel must make a prima facie showing to support the
inference that the protected conduct was a "motivating
factor" in the employer's decision. Once this is estab-
lished, the burden shifts to the employer to demonstrate
This is reinforced by Jack Kipnes' inability to name or produce the
record of any employee who had been discharged because of low pro-
duction or unsatisfactory work habits after their first day, and the Re-
spondent's retention of Maria Baca Vazquez and Hector Lopez as em-
ployees until it learned of their union activities.
214 comparison adds nothing to strengthen the Respondent's con-
tentions here. Kipnes testified that Lauriano completed 2244 "connector
bodies" in 6-1/4 hours and ruined a number of pieces not included m this
total It is questionable whether this rate of production for a new man
can be considered so low, relatively speaking, as to warrant discharge
under the facts and circumstances of this case.
215 that BoIta, Lopez, and Emanuel° were discharged early in
the day on Monday, February 20, 1978.
215 Also see Weather Tamer. Inc., 253 NLRB 293 (1980); Herman
Bros„ 252 NLRB 848 (1980).
that the same action would have taken place even in the
absence of the protected conduct. As the Board stated in
Wright Line, fn. 14:
In this regard we note that in those instances
where, after all the evidence has been submitted,
the employer has been unable to carry its burden,
we will not seek to quantitatively analyze the effect
of the unlawful cause once it has been found. It is
enough that the employees' protected activities are
causally related to the employer's action which is
the basis of the complaint. Whether that "cause"
was the straw that broke thercamel's back or a
bullet between the eyes, if it were enough to deter-
mine events, it is enough to come within the pro-
scription of the Act.
The record, as discussed above, clearly shows that the
General Counsel has made a prima fade showing suffi-
cient to support the inference that the union activity of
Lauriano and Arias 217 was a motivating factor in the
Respondent's decision to discharge them. Also as set
forth above, the Respondent's defense does not stand
scrutiny and the Respondent has not presented persua-
sive evidence that it would have discharged Lauriano
and Arias for reasons other than their protected activities
or that these discharges would have taken place even in
the absence of their having signed union authorization
cards. I therefore find that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by discharging Dominick
Lauriano and Jorge Arias.
2. Maria Bolta Vazquez
Boha commenced her employment with the Respond-
ent on February 13, 1978. She testified that she signed an
authorization card on February 20, 1978, 218 and later
217 Arias did not testify at the hearing, the circumstances of
his discharge so parallel that of Lauriano's as to strongly suggest the ap-
plicability of the above to him. Arias started work the same day as Laur-
iano, he signed an authorization card when Launano did; and right after
Kipnes interrogated Launano about his having signed a card, Kipnes was
observed to have had a conversation with Arias, although there was no
testimony in the record concerning what was said. It is likely, however,
that Kipnes learned that Arias had signed a card for the Union. When, as
here, a company interrogates employees about their union activities and
engages in surveillance of such activities, it is not unreasonable to assume
that it obtains some mformation in this regard.
/18 There is such contradictory evidence in the record that this date is
m doubt According to the testimony of Bolta, Lillian Cruz, and Sol
Maria Cabrera, they all signed their authorization cards the seine day.
Cruz and Cabrera's cards are dated February 15, 1978, while Bolta's was
dated February 20, 1978. Cruz maintained that she and Cabrera had ini-
tially dated their cards incorrectly as February 15, 1978, but when
Hector Lopez (who had given them the cards) discovered the error, he
had them execute two new cards, which were dated correctly as Febru-
ary 20, 1978. These alleged new cards carrying the later date were never
produced. Cabrera at first testified that she had signed her card on Feb-
ruary 20, 1978, the same date that Bolta was discharged, but when she
was shown her signed authorization card m evidence, she changed her
testimony and stated that she signed it on the date set forth on the card,
February 15, 1978. Hector Lopez at first testified that he solicited the sig-
natures of Bolts, Cruz, and Cabrera on the authorization cards then he
related that Edison Taborda, another employee, had done so. He later
changed his testimony and stated that Bolts had at first refused to sign a
card at the time that both Cruz and Cabrera signed their cards and that
Continued
1312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that same day her supervisor, Gus Karachalios, using
Lillian Cruz as an interpreter, asked her if she had signed
a card for the Union. Bolta related that when she admit-
ted having signed the card, Karachalios then fired her
and "He told me not to come back the following day."
Cruz testified that on February 20, 1978, Foreman Gus
Karachalios directed her to advise Doha that she was
being discharged and when she did so Bolta requested an
explanation for this action. According to Cruz, Karacha-
lios told her to tell Bolta that it was because she had
been seen completing and signing "the union card."
Cruz continued that BoIta had told her on February
20, prior to her discharge on that day, that Bolta be-
lieved she was going to be discharged because someone
had observed her signing an authorization card. Cruz
also testified, however, that she knew that Bolta was ad-
ditionally discharged because she was a slow worker and
that Karachalios had told her to tell Bolta "that he didn't
have no work for her. So he told her to go home."
While both Bolta and Cruz testified, respectively, that
employee Carmen Segreto was present when this hap-
pened or was at least informed by Cruz about it, Segreto
was not called to testify at the hearing. Cabrera testified
that she heard Gus Karachalios tell Bolta, "she would be
laid off for two or three days because they had no work
for her. And then they would send for her."
As can be readily appreciated by the above and with
the Respondent's witnesses' (Jack Kipnes, Gus Karacha-
lios, and Henry Carl) denials thereof asserting instead,
with some justification and support in the record, that
Bolta was unable to perform her work properly although
the Respondent had tried her at various types of jobs in
the plant, deciding the issue of Bolta's discharge is not an
easy matter.
It is uncontroverted, however, that the Respondent
knew on Monday, February 20, that the Union was at-
tempting to organize its employees and its immediate re-
action to this activity was to engage in a pattern of
unfair labor practices, including unlawfully interrogating
its employees, threatening them with discharge and plant
closure if they supported the Union and if the Union got
in, and creating the impression that the employees' union
activities were under surveillance, all of which evidences
the Respondent's strong union animus. Further, although
I disbelieve much of the testimony given by Bolta, I did
credit many of the witnesses who testified that Jack and
Irving Kipnes had questioned them about their union ac-
tivities and it is not unreasonable to assume from all the
evidence, including the interrogation and surveillance of
its employees, that the Respondent suspected that some
Bolta finally signed a card several days later on February 20, 1978. While
this seems to be correct if Cruz and Cabrera signed their cards on Febru-
ary 15, 1978, and Bolts "several days" later on February 20, 1978, the
Respondent produced a handwnting expert, Pearl Tytell, who testified
regarding what appears to be an alteration of the date on Boha's card.
Tytell stated that the date on Boha's card had been changed from Febru-
ary 28, 1978, to February 20, 1978 with the originally written numeral
"8" being altered to a "0." These later dates could also be explained from
the record as the testimony of Cruz, Cabrera, and Lopez also mdicates
that Cruz and Cabrera allegedly signed their cards on a Monday (Febru-
ary 20, 1978, bemg a Monday), and if Bolta signed her card "several
days" later, the date February 28, 1978, then might have some plausibil-
ity.
of its Spanish-speaking employees had signed authoriza-
tion cards and that Bolta could be one of them.219
Of course the Respondent contends that Bolta was dis-
charged because she could not perform her work proper-
ly in any of the job categories she was assigned to during
the course of her employment with the Respondent.
While the record does confirm that she did not perform
her work as well as she should have according to the
Respondent's standards, the timing of her discharge sig-
nificantly points to another reason for her discharge,
mainly her union activities and I therefore cannot credit
the Respondent's contention. Aside from the previously
indicated fact that the Respondent needed workers
badly, what with the constant turnover it experienced in
unskilled workers, and the apparent difficulty in obtain-
ing employees for the type of work required, and while
acknowledging that Bolta's work performance left a lot
to be desired, the significant fact remains that the Re-
spondent retained her as an employee for the full preced-
ing week and not only did not fire her at the conclusion
of that week even though her work performance was
consistently poor, but continued her employment on
Monday, February 20, 1978, and only discharged her on
that day after learning that the Union was attempting to
organize its employees. 220 Glaringly, Bolta's poor work
performance became intolerable on Monday, the start of
a new workweek, requiring her discharge that day, only
after the Respondent learned about the Union.22'
The General Counsel has made out a prima facie
showing sufficient to support the inference that the Re-
spondent discharged Maria Bolts Vazquez because of her
union activities. The Respondent's evidence does not
rebut that prima facie showing nor establish that it
would have discharged Bolta even in the absence of her
union activities. I therefore find that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by discharging
Maria Bolts Vazquez because of her union activities.222
212 Consider Cruz' testimony that Bolts had foretold her discharge be-
cause she had been seen filling out an authorization card.
220 I am not unaware that, according to Irving Kiones, the Respond-
ent had a policy of giving employees a chance to learn their jobs over a
reasonable period of time. But this would not be compatible with Boha's
precipitous discharge at the beginning of the week as occurred.
225 In its brief, the Respondent in its bnef points to the fact that Bolts,
Cruz, and Cabrera were hired at the same time and that only Bolta was
discharged even though Cruz and Cabrera had also signed authorization
cards for the Union. However, Cruz testified that she had denied signing
a card for the Union although Cabrera admitted it when Jack Kipnes
asked her about it; besides it is immaterial that these other employees
were not fired. It is well settled that an employer need not discharge
every union adherent in order to make its point. See Flite Chief Inc., 229
NLRB 968 (1977); Great Atlantic & Pacific Tea Co., 210 NLRB 593
(1974). Also, if the Respondent could spare any of these three employees
it would have been Bolta whose work performance had been poor. Fur-
ther, m considering the Respondent's alleged reasons for her discharge, it
should also be noted that Lauriano and Arias were discharged after 1 day
for failing to achieve the required levels of productivity, but admittedly
on the same day the Respondent became aware that the Union was orga-
nizing its employees; and Boha was discharged at the beginning of her
second week of employment allegedly because she performed poorly on
her job, again on the same day the Respondent learned about the Union.
It would appear that the only consistency in the Respondent's treatment
of these employees lies m its motivation to get rid of umon adherents and
its animus towards the Union.
222 See Wright Line, supra; Weather Tamer, supra; Herman Bros.,
supra.
MULTIMATIC PRODUCTS 1313
3. Hector Lopez
Hector Lopez commenced his employment with the
Respondent on January 30, 1978. He signed a union au-
thorization card on the same day. Lopez was discharged
by the Respondent on February 20, 1978. Lopez testified
that after the Union had made its request to the Re-
spondent for recognition and bargaining and after the
Union's president had exhibited signed authorization
cards the Union had obtained from the Respondent's em-
ployees, Irving Kipnes summarily discharged him as he
stood alongside the union representatives while this was
occurring. 2 2 3
The Respondent's witnesses testified that Lopez was
fired on Monday, February 20, the day before the Union
made its demand for recognition to the Respondent,
which actually occurred on Tuesday, February 21, and
for the reason that his production rate was unacceptably
low and his attitude toward his work was poor and dis-
dainful.
Aside from the question of when the Union actually
made its demand on the Respondent for recognition and
bargaining, which will subsequently be considered and
discussed here, that Hector Lopez was discharged on
Monday, February 20, 1978, is uncontested. Reiterating
the factors present on that day applicable to his dis-
charge as set forth above in greater detail concerning
various other dischargees are the Respondent's admitted
need for employees; its difficulties in maintaining a full
compliment of workers and securing new employees; its
awareness, first realized that Monday, February 20, that
the Union was attempting to organize its employees; its
admitted desire not to have its employees represented by
the Union; and its demonstrated union animosity by en-
gaging in unlawful interrogation, threats, and surveil-
lance of its employees beginning on that day and I am
again inexorably led to the conclusion that the Respond-
ent discharged Lopez because of his union activities.
Lopez had been working for the Respondent since
January 30, 1978. The testimony of both Joseph Diaz
and Hector Lopera indicates that his production level
did not meet the goals set by the Respondent for his job
of glazing although it would appear that his production
did increase somewhat after the first few days of his hire.
Despite this the Respondent kept him on as an employee
until Monday, February 20, when the Union's organiza-
tional activities among the Respondent's employees
became highly visible and kmiwn. That the Respondent
knew about the late morning of that day about the
Union's presence at the plant is stroneir inferable from
the record evidence here, and Lopez' precipitous dis-
charge at midday can only be explained, when consid-
ered with the other circumstances present, by the Re-
spondent's desire to rid itself of such a union activist as
he. While it is obvious that the Respondent had other
valid reasons for considering firing Lopez224 the conclu-
223 Alex Musachio and Armando Ponce, the union officials present
when this allegedly occurred, testified similarly
224 See the testimony of Joseph Diaz, Hector Lopera, and Irving
Kipnes.
sion is inescapable that his union activities were a major
factor in the Respondent's acting on his discharge when
it did.225
The General Counsel has made out a prima facie
showing sufficient to support the inference that the Re-
spondent discharged Hector Lopez because of his union
activity. The Respondent has offered evidence insuffi-
cient to rebut that prima facie showing. I therefore find
that the Respondent violated Section 8(a)(3) and (1) of
the Act by discharging Hector Lopez because of his
union activity. 2 2 6
4. Luz Fuentes
Luz Fuentes commenced her employment with the
Respondent on January 26, 1978. Fuentes signed an au-
thorization card on January 29, 1978. On Friday, Febru-
ary 17, 1978, Fuentes was taken ill at work and with the
permission of her supervisor, Frank Savana, left her job
early and went home. Fuentes testified that she returned
to work on February 20, 1978,227 and fmding her time-
card missing she requested Armando Ponce to ask
Savana about it. According to the testimony of both
Fuentes and Ponce, Savana directed Fuentes to leave the
plant without explanation. 2 2 Savana denied that
Fuentes had returned to work at all after leaving the
plant on February 17, but that he did observe her on the
picket line during the strike. Irving Kipnes testified that
Fuentes was never discharged by the Respondent since
she failed to report back to work after February 17,
1978, thereby voluntarily quitting her job with the Re-
spondent.
Again pointing to various factors, which make it obvi-
ous that Fuentes was discharged by the Respondent for
her union activity, it should be noted that the Respond-
ent knew on Monday, February 20, that the Union was
organizing its employees; that the Respondent experi-
enced a constant turnover in unskilled workers and
needed and consistently sought to hire additional em-
ployees; and that the Respondent did not want the Union
to represent its employees and demonstrated its union an-
imosity by engaging in unlawful interrogation, threats,
and surveillance of the employees commencing the day it
learned about the Union.
I credit the testimony of Luz Fuentes not only because
it was corroborated in most part by that of Randolph
Woods, whose testimony I previously accepted, but
more importantly because the evidence here strongly
points to the accuracy of her account of what occurred.
For example, while Kipnes denied that the Respondent
225 In Its brief, the Respondent points to the fact that Armando Ponce,
another union activist, was not discharged as was Lopez Again, as with
the.case of Bolta, an employer need not discharge every union adherent
or activist to make its point and agam considering Lopez' work perform-
ance he was the most expendable. See Flits Chief Inc., supra.
226 Wright Line, supra; Weather Tamer, Inc., supra; Herman Bros.,
supra. Further, the fact that Lopez was a paid union organizer does not
exclude him from the protection of the Act as an employee. See Oak Ap-
parel Inc., 218 NLRB 701 (1975); Anthony Forest Products Co., 231
NLRB 976 (1977).
227 Both Ponce and Randolph Woods testified, although inconsistent-
ly, that this happened on Tuesday, February 21
228 Ponce teatified that Savana had told him to tell Fuentes that "she
was no longer an employee of Multimatm, she was tired"
1314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
had discharged Fuentes, in a list of employees discharged
by the Respondent in January and February 1978, sent
by the Respondent to the Board, as mentioned above,229
Fuentes' name appears with the notation alongside as to
the reasons for her discharge being absenteeism, constant
lateness, and failure to appear for work on Monday or
Tuesday, February 20 and 21, respectively. The latter, I
believe, was added to reinforce the Respondent's defense
to the charge concerning Fuentes filed in this matter.23°
Further, the Respondent, through Savana, was given
notice that Fuentes was ill on Friday, February 17, and
her return to work on Tuesday, February 21, could give
rise to no presumption that she had quit her job since
only 1 day's absence intervened with no indication to the
Respondent that she intended to quit.231
Also, Hector Lopez had been the person responsible
for bringing Fuentes, Bolta, Cruz, Cabrera, and other
employees into the plant as employees and at least the
Respondent's supervisors were aware of this. Thus, it is
not unreasonable to assume that once the Respondent
became aware that the Union was organizing its employ-
ees, and after it interrogated Cruz, Cabrera, and other
Spanish-speaking employees as to their union sympathies
and activities, they could well have supposed that
Fuentes could also have signed a card or was at least
sympathetic to the Union. Of course the reasons ad-
vanced in the above- mentioned list of discharged em-
ployees regarding Fuentes' termination can only under-
score the concluded pretextual nature of the Respond-
ent's asserted defense concerning her.
From all the above, the General Counsel has made out
a prima facie showing sufficient to support the inference
that the Respondent discharged Luz Fuentes because of
her suspected union activities. The Respondent did not
rebut that prima facie showing. I therefore fmd that the
Respondent violated Section 8(a)(3) and (1) of the Act
by discharging Luz Fuentes because of her union activi-
ty.232
5. Eileen Darcy
As evidenced by the credited testimony ot Eileen
Darcy, on Monday, February 20, she left work during
222 See fn. 122, above.
23 ° Counsel for the General Counsel in brief asserts that regarding the
Respondent's contention that it did not discharge her, "the testimony of
Frank Savana is revealing" Although Savana repeatedly asked for infor-
mation about employee Mercedes Livingston, who was ill, Savana never
asked for information regarding Fuentes, who had left work ill in the
middle of the day on Friday, February 17. The General Counsel submits
that Savana did not ask for mformation about Fuentes because he knew
she had been discharged. I do not entirely agree. While this is one infer-
ence that can be drawn from these facts, It is also true that Savana and
Jack Kipnes knew that Ponce drove Livmgston to work each day and
would be in a position to know about her while there is no evidence in
the record indicating that they also knew whether Ponce did the same
with Luz Fuentes. In the event they had no knowledge of this, Savana
might not have known to ask Ponce about Fuentes.
231 The evidence supports the conclusion that Fuentes returned to
work on Tuesday, February 21, instead of Monday the day before as
there is believable testimony in the record that Hector Lopez drove
Fuentes home the day she appeared at the plant to resume work and after
she was told to leave and because Lopez was undeniably working on
Monday morning as an employee, he could not have therefore driven her
home that morning.
232 Wright Line, supra; Weather Tamer, supra, Herman Bros., supra.
the early afternoon of that day in the belief that she
would be or had been discharged by the Respondent for
signing an authorization card for the Union. This oc-
curred soon after she and another employee, Patricia
Walker, had been interrogated by the Respondent's presi-
dent as to their union activities. Just previous thereto she
had been told by another employee, not a supervisor,
that employees could be fired for signing authorization
cards and that Arthur Zabiela, a supervisor, had made
such a statement.
That Kipnes' interrogation of Darcy, the vehemence
of his other statements such as "What's the matter with
you girls? Don't you like your jobs here? Where are
your heads?" and his assertions directed at Zabiela, but
made in the presence of and plainly heard by Darcy and
Walker, to the effect that the Respondent would be com-
pelled to lay employees off and close its plant if the
Union got in could well have convinced Darcy that she
was in danger of imminent discharge, and can reasonably
be inferred from the evidence.
However, Darcy made several attempts to secure rein-
statement, which were negated by the Respondent. Za-
biela denied her request to return to work, relayed
through Patricia Walker, on February 20, and Jack
ICipnes rejected her reinstatement request about Febru-
ary 22, the day the strike started. Darcy testified that she
also telephoned the Respondent on several occasions
thereafter although she could not remember the dates
these occurred on nor did she testify as to whom she di-
rected these requests. The Respondent reinstated Darcy
about March 3, 1978.
When the Respondent, through Zabiela and Jack
Kipnes, refused to reinstate Darcy to her former job, it
was aware that she had signed a union authorization
card. As set forth more particularly above, the Respond-
ent needed employees and on Monday, February 20,
after discharging at least four other employees, it was ad-
mittedly understaffed. 233 There is no evidence in the
record that Darcy performed her work other than satis-
factorily and in fact one gets the impression that the Re-
spondent's management liked her as an employee. The
record further shows that the Respondent was aware of
the reason for Darcy having "punched out" and left the
plant before the end of the day that Monday, namely,
that she incorrectly supposed that she had been or would
be fired.234 The only possible basis for the Respondent
refusing to reinstate her immediately on her request and
under these circumstances until March 3, 1978, could
only be the knowledge that she had signed a "union
card" and the Respondent's desire to retaliate against her
to some extent and impress on her what would perma-
nently happen to her if she persisted in supporting the
Union.
The Respondent asserts that when Darcy requested
her job back she was assured that she would be reinstat-
ed subsequently and Kipnes testified that she was not re-
hired then because "in view of the strike, conditions
were uncertain and he was not then hiring." Kipnes
233 The Respondent discharged Lauriano, Arias, Bolta, and Emanuelo
on February 20 and Ezegelian had quit his employment that day also.
234 See the testimony of Darcy, Walker, Zabiela, and Jack Kipnes.
MULTIMATIC PRODUCT'S 1315
stated that he had never been in such a position before,
was unaware of the Respondent's rights, and the Union
was claiming it would "put a freeze on our trucks and
close us down. At this point I just didn't know what to
do as far as hiring people." The Respondent in its brief
also states, "As soon as the dust had settled and he un-
derstood his rights, obligations and capabilities during
the strike, he [Jack Kipnes] reinstated her." On Friday,
February 24, however, striker John Adams made a re-
quest to Jack Kipnes for reinstatement and Kipnes
agreed and returned Adams to his job on the following
Monday, February 27.235
Since the causation test set forth by the Board in
Wright Line, 236 would be applicable to the situation con-
cerning Darcy, I conclude from all the above that the
General Counsel has made out a prima facie showing
sufficient to support the inference that the Respondent
failed and refused to reinstate Eileen Darcy in a timely
and prompt manner because of her union activity. The
Respondent has not rebutted that prima facie showing. I
therefore find that the Respondent violated Section
8(a)(3) and (1) of the Act by failing and refusing to rein-
state Eileen Darcy timely and promptly because of her
union activity." 7
6. Victor Emanuel°
Although the evidence shows that on February 20 the
Respondent discharged employee Victor Emanuel°, who
had signed an authorization card for the Union, no alle-
gation was made by the General Counsel or the Union
that this discharge was violative of the Act and there
was no testimony elicited to support such an allega-
tion.238
D. The Refusal to Bargain
Section 8(a)(5) of the Act prohibits an employer from
refusing to bargain collectively with the representatives
of its employees.
The complaint alleges that since about February 20,
1978, and thereafter, the Respondent refused and contin-
ues to refuse to recognize and bargain collectively with
the Union as the exclusive collective-bargaining repre-
sentative of its employees in a unit appropriate for the
purposes Of collective bargaining in violation of Section
8(a)(5) and (1) of the Act. The Respondent denies these
allegations.
1. The appropriate bargaining unit
The complaint alleges, the Respondent's answer
admits, and I find that the unit appropriate for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act consists of:
235 From this record, it would also not be unreasonable to infer that
the Respondent sought to use Darcy's action in leaving her job and its
refusal to immediately reinstate her and its possible viewing by other em-
ployees as her discharge for having signed an authorization card, as a
warning to them of what could happen if the employees continued to
give the Union their support. Jefferson National Bank, supra. Also see the
testimony of Steven Ezegehan.
236 Wright Line, supra.
237 Wright Line, supra; Weather Tamer, supra, Herman Bros. Supra.
238 See the testimony of Irving Kmnes.
All production and maintenance employees of the
Respondent, employed at its Plainview plant, exclu-
sive of all office clerical employees, guards and su-
pervisors as defined in Section 2(11) of the Act.
The parties here stipulated that the following employ-
ees should be included in the unit appropriate for the
purposes of collective bargaining as set forth above:
Glen Cardwell, Ruben Rivera, Gonzolo Villamar, Sol
Maria Cabrera, Lillian Cruz, Cynthia Donnelly, Hazel
Fricke, Carmen Segreto, Frances Trojan, Pamela Bar-
rett, Josef Schreier, Alex Jedynski, James Coaster, Kevin
Flannery, John Adams, Keith Baker, William Bonfante,
Joseph Diaz, Amanda Lopera, Hector Lopera, Nicholas
Melara, Yvette Padilla, Randolph Woods, Herbert
Yakkey, Marvin Kaplan, Edison Taborda, Patricia
Walker, Joseph Copeland, Thomas Geiger, William Jen-
nings, Eugene Vitelli, Vanetta De Santo, and Konstan-
tinos Karachalios.2"
While the Union would take no position thereon, the
General Counsel and the Respondent agreed that em-
ployees Luz Silverio, Albert Giammarinaro, Norma Ve-
lazquez, Roger Williams, 240 Eric Holmgren, and Robert
Andrew Papandrew should not be included in the unit.
The General Counsel and the Union would additional-
ly include in the appropriate unit the following employ-
ees: Hector Lopez, Armando Ponce, Eileen Darcy,
Maria Botta Vazquez, Dominick Lauriano, Jorge Arias,
Luz Fuentes, Mercedes Livingston,241 Steven Ezegelian,
and Esther Lopez.
In its brief, the Respondent agrees that employees
Eileen Darcy242 and Luz Fuentes should be included in
the appropriate unit, but seeks the exclusion of the other
eight employees listed above. The Respondent would
also include in the unit employee Howard Kipnes.243
In summary, of a possible 45 employees as mentioned
above by the parties, respectively, allegedly includable in
the unit appropriate for the purposes of collective bar-
gaining, there is accord as to 35 with 10 others remaining
in contention; 8 of these being sought for inclusion in the
unit by the General Counsel and the Union, and 2 by the
Respondent.244
239 The Union's demand for recognition and bargauung occurred
either on February 20 or 21, as testified to here and this list would be
applicable to either date as will be hereinafter discuSsed.
249 In its brief, however, the Respondent takes the position that in the
event either Esther Lopez, Steven Ezegehan, or Mercedes Livingston,
employees it asserts voluntarily abandoned their employment, are includ-
ed in the unit, then Roger Williams should also be included.
" i Counsel for the General Counsel m his closing statement included
Mercedes Livingston in this group, but in his brief failed to recite Living-
ston's name when reiterating this contention.
242 Regarding Darcy's testimony that she sought to retrieve the au-
thorization card she had signed from the Union, the record clearly shows
that the attempted revocation of her card was prompted by fear of dis-
charge and not by free choice I cannot construe her action as being a
valid revocation thereof. See Twilight Haven, Inc., 235 NLRB 1337
(1978).
243 As indicated above, Howard Kipnes is the son of Jack Kipnes, the
Respondent's president.
244 See fn. 240, supra.
1316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1. Hector Lopez and Armando Ponce
Hector Lopez commenced his employment with the
Respondent on January 30 and was employed until Feb-
ruary 20, 1978, when he was discharged. Lopez was also
employed by the Union during this same period as secre-
tary-treasurer. Armando Ponce was employed by the Re-
spondent from January 18 until February 22, 1978, when
he voluntarily ceased his employment and, as with
Lopez, was at the same time also employed by the
Union, as a business agent. Lopez testified unequivocally
that the sole reason that he took employment with the
Respondent was for the purpose of organizing the Re-
spondent's employees. 245 He added that this was true of
Ponce also. 246 Both Lopez and Ponce received salaries
from the Union as its employees while maintaining em-
ployment with the Respondent. As indicated above,
Lopez signed an authorization card on January 30, 1978,
and Ponce on February 1, 1978.247
An employee does not lose his status because he is also
paid to organize. 248 As the Board stated in Dee Knitting
Mills, "The real question . . . is whether the employ-
ment itself was solely to organize, so that the employ-
ment is really only temporary, whether the employer
knows it or not."
Both Lopez and Ponce were paid officials of the
Union. Significantly, Lopez admitted that their sole pur-
pose in seeking employment with the Respondent was to
organize its employees. Additionally, both Lopez and
Ponce's prior employment records reasonably give rise
to a strong inference that they accepted employment
with an employer with the sole purpose in mind of orga-
nizing that company's employees and soon after this was
underway they would terminate such employment. Ac-
cording to their testimony, this usually would occur
within a month whereupon they would either move on
to a new company or continue their work seeking recog-
nition of the Union as the employees' collective-bargain-
ing representative, but not as employees and having no
thought at any time of remaining permanently as em-
ployees with that company. Under these circumstances,
it is apparent that their employment was temporary and
unequivocally considered so by themselves and they
should not be included in the appropriate unit nor their
signed authorization cards counted in determining the
245 Lopez related that m the last 2 years while employed as a union
official he also worked for the Endurance Corporation for about a month
and then obtamed a job with the Respondent. He testified that after orga-
nizing the employees at Endurance Corporation, he voluntarily quit his
job with that company Lopez admitted that he "joined the company just
to organize it as he did with Multunatics."
246 Ponce did not deny this. Ponce also testified that just prior to his
employment with the Respondent he had worked for "Formed Plastics"
for a period of 2 or 3 weeks and for "Super Farm" for about 3 weeks. He
added that the Union attempted to organize the employees of both these
employers.
247 It would appear from the above that this is part of the Union's
modus operandi in orgaruzmg employees of a- particular company. The
Union has its representatives seek employment with the firm, organize its
employees, then leave their employment and move on to the next em-
ployer.
248 Dee Knitting Mills, 214 NLRB 1041 (1974); Sears Roebuck & Co.,
170 NLRB 533, 535 fn. 3 (1968) Also see Anthony Forest Products Co.,
231 NLRB 976, 977 (1977).
Union's majority status. 249 Thus, Oak Apparel would
grant coverage of the Act to such temporary employees,
but the issue of their includability in an appropriate unit
would depend on other circumstances in the case aside
and separate from the issue of the Act's applicability as is
present in the instant matter. Also see Anthony Forest
Products Co., supra, in which the Board stated:
A "temporary" employee is not permitted to vote in
a Board-conducted election because he or she does
not have any longtime community of interest with
the regular employees. However, that is not to say
that a "temporary" employee is not to be accorded
all of the protection afforded under the Act insofar
as discriminatory treatment because of union activi-
ty is concerned.
It should be noted that this distinction is clearly illustrat-
ed by my previous fmding that Hector Lopez was dis-
charged by the Respondent in violation of the Act.
2. Lopez and Mercedes Livingston
As set forth above, Esther Lopez' last day of work for
the Respondent was February 15, 1978. According to the
uncontradicted testimony of Joseph Diaz, Lopez had
told him that day that she might have to quit because her
children were ill and needed regular medical attention.
The next day when Lopez failed to appear for work her
husband Hector Lopez advised Diaz that his wife had
quit her job with the Respondent. Under the circum-
stances presented here, it is clear that Esther Lopez
abandoned or quit her employment with the Respondent
on February 15, 1978, prior to the Union's demand on
the Respondent for recognition and bargaining and prior
to the commencement of unfair labor practices by the
Respondent on February 20, 1978.
Whether an employee has so abandoned her employ-
ment, while being easier to ascertain where such action is
specifically brought to the attention of the employer, is
nonetheless a valid quitting where the circumstances in-
dicate that this was the employee's state of mind at the
249 Counsel for the General Counsel in his brief cites Oak Apparel, 218
NLRB 701 (1975), in support of his contention that the signed authoriza-
tion cards of Lopez and Ponce should be counted and they also should
be included m the unit. However, as the Board stated in the Oak Apparel
case:
The Board's discussion in Dee Knitting Mills, Inc, supra, regarding
the employee status of a union organizer who seeks employment
solely to organize the employer's other employees, is not in point. At
issue there was whether the organizer should have been excluded
from the bargaining unit because she was a temporary employee.
The distinction between an employee's status with respect to the ap-
propriate bargaining unit and his or her status as an "employee"
within the meaning of Section 2(3) has been recognized smce the in-
fancy of the administration of the Act. 5 Were this distinction forgot-
ten, one result would be that employers could discriminate with im-
punity against temporary or casual employees who are not includa-
ble in any bargaining unit of the employer's other employees. Such a
result would indeed be a sharp departure from our decided cases.6
5 Phelps Dodge Corporation v. N.L.R.B., 313 U.S. 177, 192 (1941).
6 E g., Nelson Manufacturing Company, 138 NLRB 883, 884
(1962); Universal Insulation Corporation, 149 NLRB 1397 (1964).
MULTIMATIC PRODUCTS 1317
time in question, and does not necessarily depend on
such notice communicated to the employer.250
Concerning Mercedes Livingston, I am compelled to
credit the testimony of Savana, Kipnes, and Margolin
and conclude that Livingston abandoned her employ-
ment whereupon the Respondent terminated her effec-
tive February 11, 1978. Livingston did not testify and
Ponce's testimony was contradicted in part by an inde-
pendent unbiased witness, Frederick Kuhlmami. 251 Fur-
ther, Livingston's last day of actual work was on Febru-
ary 10, 1978, and even granting that she was ill the next
few days, it is highly suspicious that she only became
well enough to appear at the Respondent's plant, pre-
sumably to join the strike and picket the afternoon of
Wednesday, February 22, the day the strike com-
menced. 252 On the evidence here, it appears that the Re-
spondent terminated Mercedes Livingston after she aban-
doned her employment. Without her testimony that it
was her intent to continue on the job or other credible
evidence to that effect and because of the contradictory,
inconsistent, and suspicious nature of Ponce's testimony
causing me to be unable to fully credit his testimony
thereon, I do not feel that the General Counsel has
proved that Livingston had not abandoned or quit the
Respondent's employ. 25 3
In view of all the above, I find and conclude that em-
ployees Esther Lopez and Mercedes Livingston discon-
tinued their employment with the Respondent prior to
Monday, February 20, when it is alleged that the Union
made its demand for recognition and bargaining on the
Respondent, and the Respondent commenced its unfair
labor practices in 'violation of the Act. I therefore will
not include them in the appropriate unit nor consider
their signed authorization cards in determining the
Union's majority status.
3. Howard Kipnes
Employee Howard Kipnes is the son of Jack Kipnes,
the Respondent's president. The evidence clearly shows
that the Respondent is a closely held corporation with
250 See Vtele & Sons, Inc., 227 NLRB 1940 (1977); Shaw Industries, 218
NLRB 1196 (1975); L Manta, Inc., 198 NLRB 289 (1972). As stated in
Dayton Pattern Jobbers Assn., 60 LA 974, 979 (1973), a "quit" "refers to
the situation where an employee is working and for some reason, either
with or without notice, ceases his employment with that employer"
25 ' Kuhlmann is the owner of the premises at which Livingston alleg-
edly resides
252 There is no clam that Livingston at any time prior thereto at-
tempted to contact the Respondent and advise its representatives as to
what her employment status was and even Ponce was unsure as to her
intentions concerning her job as evidenced by Ponce's answer to Sa-
vana's last inquiry about her absence from work.
258 Also, I am not unaware that counsel for the General Counsel failed
to include any mention or discussion of Mercedes Livingston's employ-
ment status in his brief under the subsection entitled, "Employees
Claimed by General Counsel to be members of the Unit." I cannot
assume that this was due to inadvertence on his part as he specifically
makes reference to her in other parts of his brief, i.e., that she signed an
authorization card for the Union and that "Savana repeatedly asked for
information about employee Mercedes Livingston, who was ill. .
Further, the record is replete with evidence of the Respondent's position
concerning her exclusion from the appropriate unit for the reason that
she abandoned her employment and therefore the General Counsel
cannot cry lack of notice In view thereof, it would not be unreasonable
to infer from the above that the General Counsel no longer sought inclu-
sion of her in the appropriate unit.
sole ownership held by the Kipnes brothers, Jack, Irving,
and Sidney. Jack Kipnes is a major shareholder in the
corporation, owning 50 percent thereof.
It is the Board's established policy in representation
proceedings to exclude from bargaining units the chil-
dren of individuals who have substantial stock interests
(50 percent or more) in closely held corporations. This
exclusionary policy is apparently grounded on the ration-
ale that a child of a major stockholder of a closely held
corporation is, in effect, "an individual employed by his
parent" within the meaning of that language in Section
2(3) of the Act and, therefore, not an "employee" who
may appropriately be included under Section 9(b) in a
bargaining unit composed of employees of his parent's
corporation. Further, the Section 2(3) definition of the
term "employee" is not confined to election cases and
would have applicability in the instant matter. Accord-
ingly, I find that Howard Kipnes should be excluded
from the bargaining unit.254
4. Roger Williams
Roger Williams commenced his employment with the
Respondent on January 4, 1978. It would appear from
the evidence that Williams was terminated prior to
Monday, February 20, 1978, perhaps on February 11, but
at least during the workweek of February 13-18, 1978.
On Tuesday, February 21, however, Williams reappeared
for work and Frank Savana, being "shorthanded" and
needing employees, allowed Williams to work that day.
Irving Kipnes testified that when Savana advised him of
this he subsequently discharged Williams before 4
p.m. 255 Kipnes testified that Williams had an exceeding-
ly poor attendance record and had failed to notify the
Respondent when he was absent from work. He related
that Williams had been out for 2 weeks prior to his
return to work on Tuesday, February 21.
From the above, I can only conclude that Williams
was terminated prior to Monday, February 20, and his
rehire on Tuesday, February 21, was temporary since he
was discharged on that very day. Roger Williams should
not be included in the unit.256
Steven Ezegelian
Steven Ezegelian started working for the Respondent
in mid-November 1977. On Monday, February 20, 1978,
about 12:30 p.m., during lunchtime he signed a union au-
thorization card. According to the credited testimony of
Ezegelian, sometime during the early afternoon of that
day Jack Kipnes asked him if he had joined the Union.
Ezegelian denied having done so, but admitted having
"asked for information" from the union representatives.
254 Garland Distributing Co, 234 NLRB 1275 (1978), Cerni Motor
Sales, 201 NLRB 918 (1973), Carayelle Wood Products, 200 NLRB 855
(1972); Foam Rubber City, #2 of Florida, 167 NLRB 623 (1967).
255 There is no evidence here that Roger Williams signed an authori-
zation card for the Union nor that his discharge was in violation of the
Act.
256 The conclusion as to the Respondent's intent concerning
is well supported by its position at the hearing and its Joining in the stipu-
lation that Roger Williams should be excluded from the unit. The change
of position by the Respondent to a conditional exclusion of Williams
from the unit only came later in its brief.
1318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Soon thereafter Ezegelian "heard" that Eileen Darcy
and Patricia . Walker had been fired for joining the Union
and when he next saw Kipnes in the plant that day he
quit his employment with the Respondent, telling Kipnes
that he "didn't want to work in a shop that would fire
employees for joining a union." Ezegelian also testified
that although "nobody on behalf of management" ever
told him that he would be discharged for signing an au-
thorization card, he did actually quit his job because he
was afraid he would be fired when it was learned that he
signed the card.
In Masdon Industries, 212 NLRB 505, 506 (1974), the
Board stated:
A constructive discharge can occur where con-
tinued employment is conditioned upon employee
abandonment of rights guaranteed them under the
Act. For example, the Board has found that em-
ployees have been constructively diicharged in vio-
lation of the Act where continued employment has
been conditioned upon giving up union member-
ship, an, illegal condition of employment has been
imposed, or working conditions have been changed
in a manner which has the effect of forcing the em-
ployee to quit because the employee engaged in
union or protected concerted activity. While it is
not inconceivable that there are circumstances in
which a threat to close the plant might also be
found to condition continued employment and pro-
vide the basis for finding a constructive discharge,
we are unable to find, on the basis of the record
before us, that Masdon's threat to close the plant
forced employees to abandon their concerted activi-
ties as the price for continued employment. Masdon
did not in fact discharge or threaten to discharge the
strikers. Nor were his remarks so interpreted by the
striking employees. [Emphasis supplied.]
Consider the circumstances in this case. First, I believe
that a threat to discharge an employee is equally applica-
ble to the Board's decision in the Masdon case as is a
"threat to close the plant." Secondly, unlike the Masdon
case, Kipnes had not only unlawfully interrogated em-
ployees as to their having signed authorization cards, but
had unlawfully threatened to discharge employees if they
did so, albeit not to Ezegelian directly. That Kipnes' re-
marks were taken seriously and interpreted as actual
threats of discharge for signing the authorization cards is
amply demonstrated by Darcy's action in leaving her job
that day in the belief that she had been discharged, al-
though in her case Kipnes' statements were made direct-
ly to her and could reasonably be construed to be a ter-
mination. Finally, Kipnes did actually discharge Laur-
iano, Arias, and Bolta the afternoon of February 20
when Ezegelian quit, although he had only heard that
Darcy and Walker had been fired.
In view of the above, I find and conclude that for the
purposes of his includability in the appropriate unit
Steven Ezegelian was constructively discharged on Feb-
ruary 20 and his signed authorization card will be count-
ed towards determining the Union's majority status.
F. The Union's Demand for Recognition and
Bargaining
That the Union made a demand on the Respondent for
recognition as the collective-bargaining representative of
the Respondent's employees in an appropriate unit is not
in dispute. Contested is the date on which this demand
was made. The General Counsel and the Union contend
that the demand was made on Monday, February 20,
1978. The Respondent asserts that this happened on
Tuesday, February 21.
The testimony of both witnesses for the General
Counsel and for the Respondent contains contradictions
and inconsistencies and it is indeed difficult to ascertain
the truth as to which of these dates is correct. Certain
evidence in the record, however, points towards Tues-
day, February 21, 1978, as the correct date. Alex Musa-
chio and Irving Kipnes, the main participants in this oc-
currence, both testified that when the demand was made
the Respondent suggested that Musachio telephone the
Respondent's counsel or adviser, Joseph Kipnes, and
Musachio related that he did so the same day. New York,
Telephone Company records in evidence suggest that
Musachio first telephoned Kipnes on Tuesday, February
21, 1978. Additionally, Armando Ponce, a union official
who was present when the demand for recognition was
made, testified that this occurred on Monday, February
20.In his affidavit given to the Board on March 3, 1978,
soon after the event had occurred, however, Ponce
stated that the demand was made on Tuesday, February
21.While he subsequently in a later affidavit given to the
Board on August 2, 1978, corrected the date, his expla-
nation for this inconsistency was unbelievable.
Further, as found above, the Respondent commenced
its unlawful interrogation of many of its employees on
Monday, February 20, after it learned that the Union
was distributing authorization cards to its employees that
day. The witnesses for the General Counsel all testified
that soon after Musachio had left the Union's letter de-
manding recognition and bargaining with the Respond-
ent, Irving Kipnes appeared outside the plant and was
shown the signed authorization cards the Union had in
its possession as its basis for claiming majority represen-
tation. If the Respondent had actually Viewed these
cards on February 20 as alleged, it is hard to explain its
further conduct in interrogating the number of employ-
ees it did to ascertain their union sympathies. If the Re-
spondent's interrogation were confined to only a small
number of employees, I would not draw any conclusion
therefrom as it is alleged that 31 cards were viewed by
Kipnes and he could have missed a few names in his
recollection. It should also be noted that the testimony of
some of the General Counsel's witnesses seems to sup-
port the date advanced by the Respondent rather than
his own. 257 From the record as a whole, I find and con-
257 For example, Hector Lopera, alleged by Hector Lopez to have
been present at the time the Union's representatives presented the letter
demandmg recognition, testified that he could not recall if he was present
at work on Monday, February 20, at all and that if he had been present
at the plant on February 20, he did not "at any point see the Union
showing any authonzation cards to Irving Kipnes" on that day. Of lesser
Continued
MULTIMATIC PRODUCTS 1319
elude that the Union made its demand on the Respond-
ent for recognition and bargaining on Tuesday, February
21, 1978.258
11. The Union's majority status
As set forth above, at the hearing the parties stipulated
as to the inclusion in the appropriate unit of 33 employ-
ees. In its brief, the Respondent agreed to the inclusion
of two more employees (Eileen Darcy and Luz Fuentes).
Further, as found here four other employees are includa-
ble in the unit (Dominick Lauriano, Jorge Arias, Maria
BoIta Vazquez, and Steven Ezegelian). Therefore, as of
February 21, 1978, the date on which the Union request-
ed recognition and bargaining, there was a total of 39
employees in the appropriate bargaining unit described
above.259 Applicable thereto the General Counsel of-
fered 20 signed union authorization cards, which I cred-
ited to support the Union's claim of majority status.
There is a great deal of testimony in the record, much
of it contradictory,, inconsistent, evasive, and unclear,
concerning the authenticity of the signed authorization
cards of several of the above employees. Feral Tytell, a
handwriting expert, testified that the date on the card of
Maria BoIta Vazquez had been altered from February 28,
1978, to February 20, 1978. 260 Tytell also testified that
the authorization cards of Lillian Cruz and Sol Maria
weight, but of some significance, would be the fact that Lillian Cruz
denied she had signed an authorization card when interrogated by Jack
Kipnes on February 20, and he did not challenge her as to this nor dis-
charge her that day as he did with Boha. While Irving Kipnes viewed
the cards, it would not be unreasonable to assume that Irving Kipnes
would have also informed his brother Jack as to those employees whose
signed cards he had seen, especially as to comparatively newly hired em-
ployees.
259 Additionally, it should be noted that Alfred Musacluo, another
union official present when this occur red, allegedly on February 20,
1978, did not testify at the hearing. Under Board precedent, an adverse
inference could be drawn that his testimony would have been unfavor-
able to the Union's assertions here. See Publishers Printing Co., 233
NLRB 1070 (1977); Broadmoor Lumber Co., 227 NLRB 1123 (1977). Fur-
ther, I am not unaware that Darcy testified that on Monday, February
20, she saw Irving Kipnes talking to some of the "union men" and
walked over to them and after Kipnes left the group she ran after him
and asked him if it were all right that she had signed an authorization
card. Sigmficantly, she failed to testify that she saw any cards being ex-
amined, especially in view of the fact that "she waited until Iry stopped
talking," implying that she heard part of their conversation.
259 This would also be true as of February 20, the date the Respond-
ent commenced its unfair labor practices. Concerning the number of em-
ployees in the unit (39), this includes Marvin Kaplan, a leadman. Al-
though the parties stipulated to his inclusion in the unit, however, his
own description of his job duties creates some doubt whether he can be
considered to be in reality a supervisor under Sec. 2(11) of the Act. If
Kaplan were to be excluded, however, this would not change the cir-
cumstance of the Union having attained the status of representing a ma-
jority of the Respondent's employees in the appropnate unit.
280 Bolta's testimony as to when she signed the card was so contradic-
tory and unclear as to shed little light on this. Although I actually be-
lieve that Bolts signed her authorization card on February 20, 1978,
albeit I cannot explain Tytell's testimony other than to refer to what I
said above concerning this date, Bolta was unlawfully discharged on Feb-
ruary 20 and it is of no moment that she may have signed her card after
she was discharged nor that it was backdated since her employee status
continued unimpaired in point of law because of the illegality of her dis-
charge. See Fort Vancouver Plywood Co., 235 NLRB 635, 645 (1978), as to
backdated and subsequently signed authorization cards.
Cabrera showed evidence of being completed by two
and three different people.261
Additionally, Albert Giammarinaro testified that on
the last day he worked for the Respondent, February 10,
1978, he was given an authorization card to sign by Ar-
mando Ponce who requested that he backdate the card
to February 6, 1978, which he did. Robert Andrew Pa-
pandrew testified that his last day of employment was
February 16, 1978. On February 23, 1978, when he re-
turned to the Respondent's plant to pick up his pay-
check, Alfred Musachio handed him an authorization
card to sign. Papandrew stated that although he told
Musachio that he was no longer an employee, Musachio
told him to sign it anyway, backdate the card to Febru-
ary 17, 1978, and the Union would get him "backpay or
something like that." Papandrew signed and backdated
the card. 262 Eric Holmgren testified that his fast day of
work was on February 16, 1978. He related that he was
with Papandrew when Alfred Musachio gave them both
authorization cards to sign. Musachio told Holmgren to
sign and backdate the card to February 17, 1978, even
though Holmgren advised Musachio that, like Papan-
drew, he was no longer in the Respondent's employ.
Musachio promised to obtain backpay for Holmgren as
wel1.263 Ponce unconvincingly denied asking Giammar-
inaro to backdate the card -and Alfred Musachio did not
appear to testify. 264
While I am disturbed by the conduct of the Union and
the implications the above evidence carries therewith, I
am compelled to conclude that those signed authoriza-
tion cards submitted by the Union and applicable to the
respective employees properly includable in the unit
found appropriate herein are valid, and that the Re-
spondent has failed to offer sufficient evidence to negate
their authenticity. These cards are single purpose cards
and valid on their face.265 Further, while a number of
the employees who signed authorization cards speak only
Spanish, and I cannot truly say that the inconsistencies in
their testimony concerning these cards was not partly
due to problems of testifying through an interpreter, the
circumstances surrounding the solicitation of these cards,
however, reveals that the employees understood the pur-
pose of the cards and freely and knowingly executed
them 266
265 Both Cruz and Cabrera testified as to the circumstances of their
signing these cards and I do not find anything therein to warrant invali-
dating them.
262 Papandrew testified that he had informed the Board's agent investi-
gating the case and counsel for the General Counsel of this. While Pa-
pandrew was called as a witness for the Respondent, he admitted that he
had told counsel for the General Counsel that he did not want to testify
in this proceeding
269 Hohngren testified that he had advised counsel for the General
Counsel that he backdated the card although be admitted that he initially
told him that he bad signed the card on February 17, 1978.
264 It should be noted that while counsel for the General Counsel sub-
mitted 31 authorization cards into evidence, including those of Gianunar-
inaro, Papandrew, and Holmgren, these three employees were excluded
from the unit by stipulation and I have only counted those cards of em-
ployees stipulated by the parties to be in the appropriate unit and those
found by me here to be properly includable.
265 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), Cumberland Shoe
Corp., 144 NLRB 1263 (1963), enfd. 351 F.2d 917 (6th Cir. 1965).
266 Sans Souci Restaurant, 235 NLRB 604 (1978).
1320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Accordingly, I find that on the day the Union made its
demand for recognition and bargaining, it represented a
majority Of the Respondent's employees in the appropri-
ate unit.
2. The applicability of a bargaining order
The complaint alleges that the unfair labor practices
committed by the Respondent are "so serious and sub-
stantial in character and effect" as to preclude the hold-
ing of a fair election and warrant the entry of a remedial
order requiring the Respondent to recognize and bargain
with the Union as the representative of the employees in
the unit. The Respondent denies this and asserts in sub-
stance that even if the Respondent did engage in unfair
labor practices, these were not extensive and do not war-
rant the imposition of a bargaining order.
In NLRB y. Gissel Packing Co., supra, the Supreme
Court approved the Board's use of bargaining orders to
remedy an employee's independent 8(a)(1) and (3) viola-
tions, which undermined a union's majority status and fa-
tally impeded the holding of a fair election. In doing so,
the Court held that such orders would be appropriate in
two situations. The first involves unfair labor practices
that are so "outrageous" and"pervasive" that traditional
remedies cannot eliminate their coercive effect, with the
result that a fair election is rendered impossible. The
second, as described by the Court at 614-615 is:
• . . in less extraordinary cases marked by less per-
vasive practices which nonetheless still have the
tendency to undermine majority strength and
impede the election processes. The Board's author-
ity to issue such an order on a lesser showing of
employer misconduct is appropriate, we should re-
emphasize, where there is also a showing that at
one point ,the union had a majority; in such a case,
of course, effectuating ascertainable employee free
choice becomes as important a goal as deterring em-
ployer misbehavior. In fashioning a remedy in the
exercise of its discretion, then, the Board can prop-
erly take into consideration the extensiveness of an
employer's unfair practices in terms of their past
effect on election conditions and the likelihood of
their recurrence in the future. If the Board finds
that the possibility of erasing the effects of past
practices and of ensuring a fair election . . . by the
use of traditional remedies, though present, is slight
and that employee sentiment once expressed
through cards would, on balance, be better protect-
ed by a bargaining order, then such an order should
issue.
The Court additionally stated elsewhere in Gissel that,
"perhaps the only fair way to effectuate employee rights
is to reestablish the conditions as they existed before the
employer's unlawful campaign," 267 by means of a bar-
gaining order.
The Board itself stated in Ship Shape Maintenance Co.,
189 NLRB 395 (1971):
267 395 U.S. at 612
It is now settled that serious illegal activity ac-
companying an employer's refusal to grant recogni-
tion and to bargain with the majority representative
of its employees destroys the necessary conditions
for the holding of a free and fair election.7
The foregoing unlawful conduct not only pre-
cluded the holding of a fair election in the represen-
tation proceeding the Union had instituted, but, in
our judgment, was of a sufficiently pervasive and
extensive character. • . to have likely served its in-
tended purpose of undermining the Union's preexist-
ing majority. In these circumstances we believe that
restoration of the status quo ante is required in order
to vindicate employee rights and prevent Respond-
ent from profiting from its own unfair labor prac-
tices. We are further of the opinion that the linger-
ing effects of Respondent's past coercive conduct
render uncertain the possibility that traditional rem-
edies can ensure a fair election. We therefore con-
clude, on balance, that the Union's majority card
designations obtained before the unfair labor prac-
tices occurred provide a more reliable test of em-
ployee representation desires, and better protect em-
ployee rights, than would a rerun election.268
7 NLR.B. v Gissel Packing Co., Inc. 395 U.S. 575.
The Board's decision to issue a bargaining order is
based on all the circumstances of the case, including the
nature of the violations and the context in which they
occurred. It is pursuant to such an overall evaluation
that the Board makes its finding. 269 Normally, the Board
bases its Gissel bargaining orders upon all unfair labor
practices committed by a particular respondent that
interfered with, restrained, and coerced employees in the
exercise of their Section 7 rights.270
The Union commenced its organizational campaign in
late January 1978. On February 20, 1978, upon learning
that its employees were engaging in union activities, the
Respondent commenced its unfair labor practices, con-
tinuing thereafter to engage in various flagrant violations
of Section 8(a)(1) and (3) of the Act to undermine the
Union.
The Respondent, through Representatives Jack and
Irving Kipnes, and Arthur Zabiela, respectively, 271 un-
lawfully interrogated its employees concerning their
union activities and support thereof and the coercive
effect on these employees is no more clearly illustrated
than by the fact that employees denied having any in-
volvement with the Union for fear of reprisal that ac-
knowledgement might bring. 2 7 2
268 See also Petrolane Alaska Gas Service, 205 NLRB 68 (1973); Honda
of Haslett, 201 NLRB 855 (1973), enfd. 490 F 2d 1382 (6th Cir. 1974).
269 Rennselaer Polytechnic Institute, 219 NLRB 712 (1975).
270 Rapid Mfg. Co., 239 NLRB 465 (1979); Baker Machine it Gear, 220
NLRB 194, 195 (1975), Idaho Candy Co., 218 NLRB 352, 358-359 (1975)
277 The respective actions attributable to the Kipneses and Zabiela that
constitutes the unfair labor practices have been set forth m detail above.
272 Backstage Restaurant, supra.
MULTIMATIC PRODUCTS 1321
,
Additionally, the Respondent, through its representa-
tives Jack and Irving Kipnes, expressly and impliedly
threatened and warned its employees that if they signed
union authorization cards or otherwise engaged in union
activities they could and would be discharged and that if
the Union became the employees' bargaining representa-
tive, the Respondent would be compelled to close its
plant, discontinue production, and lay off its employees.
As stated hereinbefore a direct threat of loss of employ-
ment, whether through plant closure, discharge, or
layoff, is one of the most flagrant means by which an
employer can dissuade employees from selecting a bar-
gaining representative. 2 7 3
Also the Respondent, through Representatives Jack
and Irving Kipnes, unlawfully created the impression
that the union activities of its employees were under sur-
veillance. The Respondent also, through Jack Kipnes,
promised to increase the number of wage raises it would
grant its employees in the future to induce them to re-
frain from joining or supporting the Union.
Further, the record shows that the Respondent's ac-
tions, as set forth above, were not mere isolated and hap-
hazard instances of misconduct, but were part of a plan
to discourage and dissipate the Union's majority status.
The Respondent unlawfully discharged Dominick Laur-
iano, Jorge Arias, Maria Bolta Vazquez, Hector Lopez,
and Luz Fuentes, and discriminated against Eileen Darcy
by failing and refusing to reinstate her to her former job,
all because of their union activities, these actions consti-
tuting serious and effective reminders to all its employees
of the dangers inherent in continuing to support the
Union. 2 7 4
As detailed above, the Respondent here engaged in se-
rious violations of Section 8(a)(1) and (3) of the Act,
which were calculated to defeat the Union's organiza-
tional effort then and in the future and to undermine its
status among the employees. Consideration must also be
given to the speed with which the Respondent reacted to
the knowledge that its employees were engaging in
union activities. I therefore believe, though not without
some reservation, that these unfair labor practices were
so severe, extensive, and pervasive as to make the appli-
cation of traditional remedies ineffective and to afford no
guarantee that an election would provide a more accu-
rate index of employee's sentiment than the authorization
cards executed by a majority of the employees. In these
circumstances, I find that "employee sentiment," once
expressed through cards, would, on balance, be better
protected by a bargaining order.276
272 General Stencils, supra; Devon Gables Nursing Home., 237 NLRB
775 (1978); NLRB v. Entwistle Mfg. Co., 120 F 2d 532, 536 (4th Cir
1941)
274 Jefferson National Bank, supra; Twilight Haven, Inc. 235 NLRB
1337 (1978); Panchito's, 228 NLRB 136 (1977), Motel 4 Inc., 207 NLRB
473 (1973); A. J. Kraiewski Mfg. Co., 180 NLRB 1071 (1970).
275 NLRB ii. Gissel Packing Co., supra; Armcor Industries, 227 NLRB
1543 (1977), Multi-Medical Convalescent & Nursing Center of Towson, 225 _
NLRB 429 (1976), enfd. 550 F.2d 974 (4th dr. 1977); Trading Port, Inc.,
219 NLRB 298 (1975)
I do not make this recommendation lightly. I am bothered and dis-
turbed by some aspects of this case, i.e , the Union's questionable conduct
in securing some of the signed authorization cards although these cards
were excluded by me in ascertaining the Union's majority status here and
the fact of the Respondent's experience concerning high turnover bf em-
As the Supreme Court has held, an employer has a
right to a Board election so long as he does not impede
the election process. 276 However, when he so obstructs
the process, he forfeits his right to an election and must
bargain with the Union on the basis of other clear indica-
tions of the employees' desires, and his bargaining obliga-
tion commences as of the time that he embarked on a
clear course of unlawful conduct or engaged in sufficient
unfair labor practices, which undermine the Union's ma-
jority status and subverts the Board's election proc-
ess.277
In the instant case, the Respondent embarked on its
campaign to destroy the Union's support among unit em-
ployees on February 20, 1978, when it commenced its
unfair labor practices by unlawfully threatening, warn-
ing, and interrogating its employees. However, inasmuch
as the Union's demand for recognition was not made
until the next day, February 21, I conclude that the Re-
spondent should be required to recognize and bargain, on
request, with the Union as of February 21, 1978.278
From all the above, I find and conclude that by refus-
ing to recognize and bargain with the Union, on request,
and engaging in the unfair labor practices found here,
the Respondent violated Section 8(a)(5) and (1) of the
Act, and that a bargaining order is necessary and appro-
priate to protect the majority sentiment expressed
through authorization cards and to otherwise remedy the
violations committed.272
IV. THE El.b.b,CT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section
III, above, found to constitute unfair labor practices oc-
curring in connection with the operations of the Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
ployees during the course of a year. As the Respondent states in its brief,
"the nature of the employee complement" has changed substantially since
the charges were filed. In view of the above, I am also sensitive to the
narrow margin by which the Union enjoyed its majority status. However,
I do not find these sufficient to offset the Respondent's severe and egre-
gious unfair labor practices committed in this case
276 Summer & Co. v. NLRB, 419 U.S. 301 (1974).
277 Trading Post, Inc., supra; Baker Machine & Gear, 220 NLRB 194
(1975).
278 Peninsula Assn. for Retarded Children & Adults, 238 NLRB 1099
(1978), Trading Post, Inc., supra. Also see Crawford House, 238 NLRB 410
(1978). The General Counsel in brief asserts:
Respondent contends that the demand for recogrution came not on
February 20 but rather on February 21. The General Counsel sub-
mits that assuming, arguendo, the demand was made on February 21,
a bargaining order is still the necessary and appropriate remedy.. . .
Certainly if the Union had never made a demand for recognition, the
appropriate remedy for the pervasive 8(a)(1) and (3) violations
would be to order the Respondent to bargain with the Union as of
February 20, 1978. Beasley Energy, Inc., 228 NLRB 93 (1977); Trad-
ing Port Inc., 219 NLRB 298 (1975). See also Hambre Hombre Enter-
prises, Inc., 228 NLRB 136 (1977). This remains the appropriate
remedy as February 20 is the day to be considered in weighing the
Union's, majority status. To hold otherwise would be to reach the
anomalous result of penalizing the unit employees because the Union
came forward at all with the demand, and rewarding the Respond-
ents for their successful unfair labor practices, which diminished the
umon majority in the intervening period, e.g., the resignation of
Steven Ezegelian.
279 NLRB v. Gissel Packing Co., supra, Trading Post, Inc., supra
1322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
As the unfair labor practices committed by the Re-
spondent were serious and go to the very heart of the
Act, I shall recommend that it cease and desist therefrom
and in any other manner from interfering with, restrain-
ing, and coercing its employees in the exercise of the
rights guaranteed to them in Section 7 of the Act.28°
Having found that the Respondent did unlawfully dis-
charge Dominick Lauriano, Jorge Arias, Maria Bolta
Vazquez, Luz Fuentes, and Hector Lopez, it is recom-
mended that the Respondent offer them, excluding
Lopez, 281 reinstatement to their former positions, or if
those positions no longer exist, to substantially equivalent
positions, without loss of seniority, or other benefits, and
make them whole for any loss of pay resulting from the
discrimination against them by payment of a sum of
money equal to the amount they normally would have
earned as wages from the date of their discharge to the
date of a bona fide offer of reinstatement, less net interim
earnings. The backpay due under the terms of the rec-
ommended Order shall include interest to be computed
in the manner prescribed by the Board in F. W. Wool-
worth Co., 90 NLRB 289 (1950), and Florida Steel Corp.,
231 NLRB 651 (1977).282
Having found that the Respondent discriminated
against Eileen Darcy by failing and refusing to reinstate
her in a timely and prompt manner I will recommend
that the Respondent make Eileen Darcy whole for any
loss of pay resulting from the discrimination against her
by payment of a sum of money equal to the amount she
normally would have earned as wages from the date she
should properly have been reinstated, 283 to the date she
was actually reinstated, 284 less any net interim earnings
during the period. The backpay due under the terms of
the recommended Order shall include interest to be com-
puted in the manner prescribed by the Board in F. W.
Woolworth Co., supra, and Florida Steel Corp., supra.285
288 Hickmott Foods, 242 NLRB 1357 (1979), NLRB v Express Publish-
ing Co., 312 U.S. 426 (1941); NLRB v. Entwistle Mfg. Co., supra.
281 Although Hector Lopez was found to have been unlawfully dis-
charged, the evidence clearly shows that as a umon official he had only
taken employment with the Respondent m order to organize its employ-
ees and then to leave his job His previous employment record supports
this Further, Armando Ponce, another union representative who had
taken a job with the Respondent for the same purpose and who had not
been discharged, quit soon after the strike started on February 22, 1978.
In view of the above, there is a strong inference that Lopez would have
left his employment when Ponce did or soon thereafter with no intention
to remain as an employee
282 See generally Isis Plumbing Co., 138 NLRB 716 (1962). Also see
Olympic Medical Corp., 250 NLRB 146 (1980); Pioneer Concrete Co., 241
NLRB 264 (1979).
282 The record shows that Patricia Walker conveyed Darcy's uncondi-
tional request for reinstatement to the Respondent on February 20.
284 Darcy was reinstated about March 3
285 Fn 282, supra
In view of the Respondent's extensive and pervasive
unfair labor practices, which were calculated to destroy
the Union's previously enjoyed majority status, and since
I am persuaded that the application of traditional reme-
dies for these unfair labor practices cannot eliminate the
lingering and restraining effects thereof and makes the
holding of a fair and meaningful election virtually impos-
sible, I regard the employees' signed authorization cards
as a more reliable measure of their representation desires.
I will therefore recommend the issuance of an order re-
quiring the Respondent to recognize and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the Respondent's employees in the appropri-
ate unit. 28 6
CONCLUSIONS OF LAW
1. The Respondent, Multimatic Products, Inc., is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Industrial Trade Union Local 231, International
Union of Dolls, Toys, Playthings, Novelties and Allied
Products of the United States and Canada, AFL-CIO is
a labor organization within the meaning of Section 2(5)
of the Act.
3. The Respondent has interfered with, restrained, and
coerced its employees in the exercise of their rights guar-
anteed in Section 7 of the Act, and has thereby engaged
in unfair labor practices in violation of Section 8(a)(1) of
the Act by:
(a) Coercively interrogating its employees concerning
their union activities and sympathies.
(b) Threatening and warning its employees with dis-
charge and with plant closure if they engaged in union
activities or supported or became members of the Union.
(c) Creating the impression that the employees' activi-
ties on behalf of the Union were under surveillance.
(d) Expressly and impliedly promising more wage in-
creases to its employees for the purpose of inducing
them to refrain from joining or supporting the Union.
(e) Urging and directing its employees to allow the
Respondent to sponsor a labor organization of its own
choosing.
4. By discharging and failing and refusing to reinstate
Dominick Lauriano, Jorge Arias, Maria Bolta Vazquez,
Hector Lopez, and Luz Fuentes, and by failing and re-
fusing to timely reinstate Eileen Darcy, all because they
had engaged in union or other protected concerted activ-
ity, with the intent to discourage unit employees from
engaging in union or other protected activities, the Re-
spondent has engaged in unfair labor practices in viola-
tion of Section 8(a)(3) and (1) of the Act.
5. All production and maintenance employees of the
Respondent, employed at its Plainview plant, exclusive
of all office clerical employees, guards, and supervisors
as defined in Section 2(11) of the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
286 NLRB v. Gissel Packing Ca, supra; Trading Port, Inc , supra; Back-
stage Restaurant, supra; Westminster Community Hospital, 221 NLRB 185
(1975)
—
MULTIMATIC PRODUCTS 1323
6. By refusing on or after February 21, 1978, to recog-
nize and bargain with the Union as the collective-bar-
gaining representative of its employees in the unit found
appropriate above, the Respondent has violated Section
8(a)(5) and (1) of the Act.
7. The unfair labor practices found above are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Lauren Rich, Esq., for the General Counsel.
Michael L Bernstein, Esq. (Benetar, Isaacs, Bernstein &
Schair), of New York, New York, for the Respondent.
Stuart N. Altman, Esq. (Stewart N Altman & Assoc.), of
Elmhurst, New York, for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
'JESSE KLEIMAN, Administrative Law Judge. On 30
January 1981, I issued my decision in this proceeding,'
concluding that the Respondent, Multimatic Products,
Inc., violated Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act), by the following unlaw-
ful conduct: threats and warnings, interrogation, creating
the impression of surveillance, promises of benefits,
urging employees to allow the Respondent to sponsor a
labor organization of its own choosing, and discharging
and failing to reinstate certain employees, all in response
to its employees' union activities. I ftirther concluded
that the Respondent had violated Section 8(a)(5) and (1)
of the Act by refusing to recognize and bargain, on re-
quest, with Industrial Trade Union Local 231, Interna-
tional Union of Dolls, Toys, Playthings, Novelties and
Allied Products of the United States and Canada, AFL-
CIO (the Union) and that the Respondent's unfair labor
practices were so serious and substantial as to preclude
the holding of a fair election and, therefore, the majority
sentiment expressed through authorization cards signed
by the Respondent's employees, warranted the imposi-
tion of a bargaining order under NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969). Thereafter, the Respondent
filed exceptions and a supporting brief alleging, inter alia,
that the Union had engaged in fraudulent conduct, 2 and
that the Board's Regional Office (Region 29) had also
acted improperly by engaging in a "knowing suppression
of that fraud." On 28 August 1981, the Board issued a
Notice to Show Cause
[w]hy this proceeding should not be remanded to
the Administrative Law Judge for the purpose of
adducing further evidence and making appropriate
findings with respect thereto, concerning Respond-
ent's allegations of fraud on the part of the Union,
as well as Respondent's allegations of improper con-
duct by Regional Office personnel, and how that
conduct, to the extent engaged in, affects the validi-
1 JD-(SF)-21-81.
2 That the Union had engaged in fraud in the sohcitation of authoriza-
tion cards from employees William Eric Holmgren, Robert Papandrew,
and Albert thammannaro
ty of the Administrative Law Judge's rulings, find-
ings, conclusions, and recommended Order. All par-
ties filed responses to the Notice to Show Cause.3
By Order Remanding Proceeding dated 13 August
1982,4 the Board remanded the proceeding to me for the
purposes set forth above in its Notice To Show Cause.
The Board additionally stated therein:
The Administrative Law Judge is instructed to
make credibility resolutions, findings of fact, and
conclusions of law, and to reevaluate, if necessary,
earlier credibility resolutions, findings of fact, and
conclusions of law in light of evidence already re-
ceived, and any new evidence adduced at the
second reopened hearing.5
Moreover, the Board observed in its Order Remanding
Proceeding:
• . . the Board acts in the public interest to enforce
public, not private, rights. National Licorice Compa-
ny v. N.L.R.B., 309 U.S. 350 (1940). Indeed, we
cannot emphasize strongly enough that serious alle-
gations have been made, not only that a party to an
unfair labor practice proceeding may have grievous-
ly abused the processes of this Agency, but also that
personnel of this Agency may have somehow, wit-
tingly or unwittingly, played a role in that abuse.
Thus, the public interest and the public trust in this
Agency are at stake. It is therefore imperative that
a full and open hearing be had concerning such alle-
gations, so that all the evidence may be brought to
light.
A second reopened hearing was held before me in
Plainview, New York, beginning on 29 November 1982
and concluding on 2 February 1983, comprising 7 days
of hearing. 6 All parties were afforded full opportunity to
3 In its response to the Board's Order to Show Cause, the Respondent
also raised an allegation that the Regional Director for Region 29 had
assured the Respondent's counsel that the Region would disclose to the
Respondent "whatever information it has which conflicts with the testi-
mony adduced to date"
4 263 NLRB 373 (1982).
5 As the Board further stated in its Order (263 NLRB 373, 374).
We begin by pointing out that the Administrative Law Judge
failed to make any significant findings concerning the evidence of
fraud and misconduct presently in the record We also note, based
on the responses to our Notice To Show Cause, that the record evi-
dence relating to the alleged fraud and misconduct is far from com-
plete In sum, at this point in the proceeding, we are dealing with
allegations and testimonial assertions, not credited evidence.
It is hereby ordered that the above-entitled proceeding be remand-
ed to Administrative Law Judge Jesse Kleiman who shall take such
action as is required in accordance with this Order.
6 This proceeding was originally commenced on 28 August 1978 and
concluded after 11 days of hearing, on 28 September 1978. This period is
referred to as the initial hearing. By Order dated 17 November 1978,
however, the hearing was reopened by me on the basis of the Respond-
ent's allegation of newly discovered evidence and continued from 11 De-
cember 1978 until 26 February 1979, 4 additional days of hearing, when
it was again closed. This period is referred to as the first reopened hear-
ing.
1324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
appear, to introduce evidence, to examine and cross-ex-
amine witnesses, to argue orally on the record, and to
file briefs. 7 Thereafter, the General Counsel, the Re-
spondent, and the Charging Party all filed briefs.
On the entire record in this proceeding, and the briefs
of the parties, and on my observations of the witnesses, I
make the following
FINDINGS OF FACT
A. The Evidence8
The initial investigation
On 1 March 1978 the Union filed its charge with
Region 29 of the National Labor Relations Board, alleg-
ing the commission of certain unfair labor practices by
the Respondent in violation of Section 8(a)(1), (3), and
(5) of the Act, which the case was assigned to Field At-
torney Cecilia Roudiez for investigation. 9 Thereafter, the
General Counsel of the National Labor Relations Board,
by the Regional Director for Region 29, issued a com-
plaint and notice of hearing on 31 March 1978, with
Roudiez continuing to investigate this case and prepare it
for trial. Roudiez testified" that she interviewed numer-
ous prospective witnesses in person and by telephone;
obtained a number of affidavits from employees," union
officials, and officers of the Respondent; and reviewed
numerous documents and records in the Respondent's
possession. Roudiez stated that she investigated "at least
a dozen" potential discriminatees and that some of these
had refused to give statements or to get "involved or co-
operate." Roudiez continued that other potential wit-
nesses and discriminatees could not be located or con-
tacted by her, even though she had sought the assistance
of the Union to fmd them. Roudiez related that she was
assisted in these endeavors by Board Agents Hector
Rosado" and Steven Kline." Roudiez added that the
7 At the second reopened hearing, I advised all the parties that I
viewed the Board's instructions in its Order Remanding Proceeding,
. . to reevaluate if necessary earlier credibility resolutions, findings
of fact, and conclusions of law in light of evidence already received,
and any new evidence adduced at the second reopened hearing [empha-
sis added],"
as authorizing me to review and reconsider any and all rulings set forth
in my decision dated 30 January 1981.
8 Although I have reviewed the entire record of this proceeding in
considering the issues presented here, it would be needless repetition to
again set forth the evidence produced at the initial hearing and the first
reopening thereof, because such evidence has been recited in some detail
in my prior decision dated 30 January 1981 (G C. Exh 47H).
9 Roudiez worked for Region 29 from March 1976 until July or
August 1978. Among her duties as a field attorney, she investigated and
tried approximately 12 unfair labor practice cases during her Board em-
ployment, in which she appeared as counsel for the General Counsel
10 Regarding the second reopened hearing on remand, the General
Counsel granted written permission under Sec. 102.118 of the Board's
Rules and Regulations, for the production and examination of relevant
and material documents from the Regional Office's files and for the al-
lowance of testimony from current and former Board employees of
Region 29, who were involved in this matter in 1978 including, Cecilia
Roudiez, Hector Rosado, Stanley Goodman, and Steven Kline
11 Roudiez took written statements from at least 17 employees.
12 Rosado was employed by the Board in Region 29 as a field attorney
from September 1977 until November 1982.
13 Kline was still employed by the Board in Region 29 as a language
specialist at the time of the second reopened hearing, and became in-
volved in the Mulninatic case, as did Rosado, because many of the wit-
Union had submitted a number of signed authorization
cards, which she sought to verify by questioning the em-
ployees as to the circumstances under which they had
signed their cards." Roudiez testified that during the in-
vestigation she had also met with the Respondent's attor-
ney and, "We discussed settlement and there was some
discussion about discriminatees. I think most of the con-
cern focused on the Gissel part of the complaint." Rou-
diez stated that it was the Respondent's position that the
discharged employees had been fired for good cause un-
related to their union activities. She recounted that the
Respondent also alleged regarding the signed authoriza-
tion cards that "[S]ome of the card signers were no
longer employed at the date the cards were presented,
something like that, and that became relevant in deter-
mining various other aspects of the charge." Roudiez
added that while the Respondent was alleging that some
of the employees who had signed union authorization
cards had actually been terminated before the Respond-
ent had any knowledge that the Union was engaging in
organizational activity at its plant, and prior to the
Union's demand for recognition, the Respondent's coun-
sel raised no issue at the time concerning any alleged
backdating of authorization cards.
The statements of Carmen Segreto
The record evidence discloses that employee Carmen
Segreto gave an affidavit in Spanish /to Board Agent
Hector Rosado on 3 March 1978, which was then trans-
lated into English by Board Agent Steven Kline. Kline
testified that, subsequently, Roudiez asked him to obtain
additional information from Segreto in a supplemental
statement." On 7 March 1978, at a restaurant near the
Respondent's plant, Board Agents Roudiez, Rosado, and
Kline met with Union President Alex Musachio and sev-
eral of the Respondent's employees, including Segreto,
for the purpose of obtaining additional statements from
these employees.
Kline testified that he interviewed Segreto and because
she told him that she was fluent in English he proceeded
to take her statement in English rather than in Spanish to
save time." Kline related that in the midst of her state-
nesse§ interviewed during the investigatory stage of this proceeding
could only speak and understand Spanish.
14 Roudiez testified that while the employees acknowledged having
signed the authorization cards, some of them had told her that either an-
other employee or a union representative had assisted them in filling out
the other information appearing on the card such as, the date, Employer's
name, etc. Roudiez remembered that one employee had told her that she
had signed two authorization cards because the first card had been lost or
contained a mistake thereon.
" The Respondent in "its brief asserts that, "Testimony of Board
Agents (past and present) revealed the Regional Office was troubled by
inconsistencies in Segreto's first affidavit, Inter aim, as 'to whether or not
some other employees were discharged' (R. 1364-65)." For whatever it is
worth, the testimony of Steven Kline, referred to above, actually indi-
cates that the supplemental statement from Segreto may have been
sought for the reason of clarification of certain information contained in
her initial affidavit, i.e , the circumstances of the signing of her union au-
thorization card, and that any inconsistencies in her first affidavit became
apparent after she had given Kline the supplemental statement See
Khne's testimony, Tr 1350-1365
18 Also, Segreto had indicated in her first affidavit that she had previ-
ously acted as an interpreter for other Spanish-speaking employees.
MULTIMATIC PRODUCTS 1325
ment Segreto, who was seated facing Musachio and the
other employees located 25-30 feet away, suddenly ex-
cused herself and told Kline that she had to speak to
someone, whereupon she left the table, went over to Mu-
sachio and the employees, and conferred with them for
"a couple of minutes." 17 Kline recounted that when Se-
greto returned to him she told him that "[S]he couldn't
continue to give me a statement." Kline stated that when
he asked Segreto why she could not do so, and Segreto
replied that, "[S]he was advised, I believe by the Union
agent, that she wasn't to continue speaking to me." Kline
continued that after determining that Segreto "wouldn't
continue under any circumstances" he asked her if she
would read the statement up to that point and sign it, to
which Segreto answered that she could not read it be-
cause it was in English. Kline added that he believed he
then read the statement to her, but she continued to
refuse to sign it and also refused to continue giving him
any information. Kline then ended the interview, excused
Segreto, and reported the incident to Roudiez.
Roudiez testified that Kline had told her about Segre-
to's refusal to sign her statement because it was written
in English, which she professed to be unable to read.
Roudiez related that Segreto could speak and understand
English proficiently but was unaware whether she could
read that language. Because Kline had advised her that
Segreto had spoken to Alex Musachio before her refusal
to sign her statement, she asked Musachio about the inci-
dent, but could not recall what he had said about this.
Roudiez recounted that she was annoyed that Segreto's
statement had not been originally taken in Spanish.
Alex Musachio testified that he had been present at the
restaurant on the day that Carmen Segreto gave a state-
ment to a Board agent, having brought various of the
Respondent's employees, including Segreto, to the res-
taurant so that their statements could be obtained as re-
quested by the Region. Musachio related that while Se-
greto was giving her statement to a Board agent she sud-
denly stopped, approached him, and said that her state-
ment was being transcribed in English and she could not
read it because she was unable to read English with any
proficiency. Musachio stated that he advised her "not to
sign anything she couldn't read." Musachio continued
that the Board agent taking Segreto's statement spoke to
him about her "affidavit" and Musachio told the agent
that he had instructed Segreto not to sign the statement
if she could not read it in English According to Musa-
chio, the Board agent then told him that a Spanish inter-
preter was being brought there so that Segreto's state-
ment could be prepared in Spanish, and after reading it,
if everything were proper, she could then sign it."
Additionally concerning Segreto, Goodman testified
that he had asked the Union to assist him in funding her
so that she could be called as a witness for the General
17 Kline could not say whether Musacluo or any of the employees
present had signaled Segreto to come over to them or whether Segreto
had done this on her own, since he was seated with his back towards
them.
18 Musachio testified that there were a number of Board agents there
at the time the employee statements weie being taken and he could not
recall if the agents were male or female. Musacluo stated that Segreto
could speak English "fairly well," but had difficulty reading English.
Counsel, but the Union had advised him that she had
gone to California and they did not know her where-
abouts there. Carmen Segreto was not called as a witness
to testify in this proceeding, nor were her affidavits in-
troduced into evidence, or shown to the Respondent
until the second reopened hearing."
The affidavit of Yvette Padilla2°
Padilla testified that she had signed a union authoriza-
tion card given to her by Armando Ponce, after someone
else had filled in the other information requested on the
card. After being shown her signed card, however, she
remembered that she had actually filled out the card
with Ponce or Hector Lopez telling her what to fill in,
including an address at which she did not live. Padilla
stated that she had never actually seen any employees
fired at Multimatic, but that Luz Fuentes, a friend, had
told her that she had been laid off. Padilla related that
she, Fuentes, and Lopez drove to and from work each
day and that Fuentes had disclosed her layoff while they
were in Lopez' car. Padilla added that she had not
served as an interpreter when Fuentes was laid off.21
What occurred thereafter
In late June 1978 this case was reassigned to Field At-
torney Stanley Goodman because Cecilia Roudiez was
leaving the Board's employ. Goodman had commenced
his employment in the Board's Region 29 office in
March 1978 and this matter constituted his first unfair
labor practice tria1. 22 Goodman testified that a hearing
was scheduled to commence on 28 August 1978 23 and in
preparation thereof, he met with "perhaps a dozen" wit-
nesses personally, spoke to "perhaps three or four"
others by telephone, Secured an affidavit from Armando
Ponce, a union representative, "completed" an affidavit
from Union Official Hector Lopez, which had not been
completed or signed prior to that, 24 and sent out subpoe-
nas for witnesses' attendance at the hearing and "perhaps
twelve questionnaires to employees who had signed
Union authorization cards but who had not supplied affi-
davits during the course of the investigation authenticat-
ing their cards," including questionnaires to employees
Robert Papandrew, William Eric Holmgren, Albert
12 The Respondent apparently raises as an issue the General Counsel's
alleged "prejudicial" failure to disclose the two statements of Carmen Se-
greto until the second reopened hearing.
22 Kline testified that he had taken Padilla's affidavit. Padilla can read
some English but understands "very, very little" of what she has read.
Nor can Padilla converse m English.
21 At the second reopened hearing, during which Padilla testified, the
Respondent raised for the first time the General Counsel's "prejudicial"
failure to previously disclose her statement
22 Goodman left the Board's employ m late June or early July 1981.
23 The hearing had originally been scheduled for commencement in
July 1978, but was adjourned to 28 August 1978 at the Respondent's re-
quest.
24 Goodman testified that he had spoken to Roudiez about Lopez' in-
complete affidavit but he could not remember what reason she had given
him for this, if any at all, whether Lopez may have left before complet-
ing his statement because it was getting late and he had to be elsewhere,
or because he had refused to complete and sign his statement because he
was unhappy with Roudiez or the content of his statement, or that Rou-
chez could- not remember what had occurred.
1326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Giammarinaro, Dominick Lauriano, Jose Arias, and
Maria Bolta Vazquez. 25 Goodman stated that he also
spoke to Roudiez about this case "once or twice," as he
was concerned about his "inability to meet with and pre-
pare certain witnesses who were important people as
, framed in the complaint, especially Papandrew, Holm-
gren and Dominick Lauriano and Jose Arias," and had
called Roudiez for any information or assistance she
could give him Goodman related that "for the most part
she told me whatever she knew was in the file."26
Goodman added that throughout these proceedings the
Union had taken the position that it had secured 31
signed authorization cards from the Respondent's em-
ployees and had presented these cards to the Kipnes
brothers on 20 February 1978, when the Union made its
request for recognition and bargaining.27
Concerning Robert Papandrew and William Eric
Holmgren
Goodman related that from Roudiez' notes in the case
file it had been alleged that Papandrew and Holmgren
had been unlawfully discharged and that their signed au-
thorization cards should be included in the proof to be
presented in establishing the Union's majority status at
the time of its demand for recognition and bargaining.
The evidence shows that Goodman had received com-
pleted questionnaires that he had sent to Papandrew and
Holmgren, and these questionnaires contained the same
information that had been previously recorded in the
case file, and that both of these employees had signed
their authorization cards on 17 February 1978. No men-
tion was made by either Papandrew and Holmgren that
25 Goodman testified that many of the questionnaires and subpoenas
that he mailed to necessary witnesses were returned to him as "undeliver-
able," including the one sent to Maria Botta Vazquez. Goodman stated
that as he was experiencing this difficulty in establishing contact with
these witnesses, he had asked the Union to bring in as many of them as it
could locate about the day the hearing commenced, which the Union did,
so that Goodman, therefore, had to interview them in the lobby of the
motel where the hearing was scheduled and during the first day of trial,
including Maria Bolts Vazquez. Moreover, while Goodman at first
denied that he was advised by the Union that Bolta Vazquez was unwill-
ing to testify, and while subsequently maintaining that he could not really
remember, he acknowledged that he had stated in his request for a sub-
poena issuance regarding BoIta Vazquez, that the reason was because
"she had not given any prior statement and the Umon is unsure of her
cooperation."
26 Roudiez testified that Goodman had contacted her on two occasions
after she had left the Board's employ. She related that Goodman had
asked her 'about information in the "Field Investigation Report," and had
remarked about the extent of the case in terms of the number of witnesses
involved and the numerous issues Roudiez also recounted that Goodman
mentioned that he was having difficulties in obtaining the cooperation of
some of the potential witnesses, including Holmgren and Papandrew, and
had asked her about the basis of the 8(a)(3) allegations mvolvmg them as
there were no affidavits from Holingren and Papandrew in the case file.
Roudiez stated that she had told Goodman that there was a file note re-
flecting that Holmgren and Papandrew had been , granted permission to
leave work early, that they had then signed authorization cards for the
Union, and that both had been discharged when they returned to work.
Roudiez added that the reason there were not affidavits from all the dis-
cruninatees in the case file was that several of them had refused to meet
with her or had refused to execute such affidavits and, besides there was
sufficient other evidence in the file to warrant the issuance of the com-
plaint.
27 Goodman testified that the Union's position was also reflected in the
affidavits of its officials, Alex Musachio, Hector Lopez, and Armando
Ponce.
their -cards had been backdated. Because there were no
affidavits from Papandrew and Holmgren present in the
case file, Goodman sought to meet with these employees
to ascertain the circumstances of the signing of their au-
thorization cards, their discharges, and the chronology. 28
Goodman stated that he then called Papandrew and
Holmgren "maybe three or four times" each and that,
"They were very vague. . . . the tenor of the conversa-
tions was to the effect of leave me alone. I don't want to
get involved. I don't remember." Goodman continued
that Papandrew and Holmgren then gave him conflicting
dates as to when they had signed their authorization
cards and the dates of their discharge, "It was never the
same thing, the same way twice during those two or
three conversations with each, or just I don't remem-
ber." Goodman added, "I was never able to get a cohe-
sive story and they were never subpoenaed to meet with
me either in the Regional Office or somewhere on the
Island to sit down and attempt to straighten it out."25
Goodman testified that on 24 August 1978, the Thurs-
day prior to the commencement of the trial in this pro-
ceeding, he telephoned Holmgren in order to get a
"straight story" from him and to prepare him for the
hearing, and for the very first time Holmgren told Good-
man that:
We left work with the permission of our employer
in the middle of the day on Thursday, didn't show
up Friday. . . . Holmgren, came in Monday morn-
ing and my supervisor. . . . told him you're fired,
your attendance and tell your friend Papandrew he
is fired too, and . . . he left. . . . [W]e went back
the next Thursday to get our last paycheck and
there was a picket line, and someone, one of the
Union guys came up and asked us if we worked
there. We said, we used to work there and he asked
us to sign cards, and we said we didn't work there
anymore and he said, we'll put down the last day
that you worked then we will get you back pay,
which he said they did, and then they picked up the
paycheck and went home."
28 Goodman testified that there had been a "notation" in the case file
that Papandrew and Holmgren had left work early on 17 February 1978
with the permission of their supervisor and had signed authorization
cards for the Union "on the way out of work," and were then discharged
without explanation on Monday morning, 20 February 1978. Goodman
added that Papandrew had indicated in his questionnaire that he was last
employed by the Respondent on 15 February 1978 and the Respondent's
employment records had indicated that he had worked past that date, and
he wanted to clear up this discrepancy.
29 Goodman testified that the case file also indicated that Papandrew
and Holmgren had failed to appear "as scheduled for appointments to
give affidavits." Goodman maintained that he was unsuccessful in his at-
tempts to meet with these employees and to obtain statements from them.
3° Goodman testified that at the time of this conversation Holmgren
was unable to identify the union representative by name who had pro-
posed the backdating of his authorization card Moreover, Goodman also
was unsure now whether Holmgren had mentioned anything about back-
pay during this conversation. According to Goodman, had Holmgren
mentioned anything about backpay to him it would have been included
by Goodman in his 24 August 1978 report to Regional Director Kayn-
ard. Goodman stated that he inquired of the Union who had solicited
Holmgren's card and was referred to Armando Ponce, who said that he
had collected the cards of Holingren and Papandrew and acknowledged
Continued
MULTIMATIC PRODUCTS 1327
Goodman stated that he then called Papandrew to ascer-
tain what had occurred but Papandrew was again less
than cooperative, telling Goodman that he did not re-
member anything about the signing of the cards, that he
did not want to get involved, that Goodman should
leave him alone and "get off [his] back," and that he
really did not want to talk to Goodman at all.
Goodman continued that after his conversation with
Holmgren and Papandrew he was quite distressed and
spoke to Regional Director Samuel Kaynard and Acting
Regional Attorney Max Schwartz about what Hohngren
had told him, and asked Kaynard for guidance as to how
to proceed. After Goodman had advised Kaynard that
there was no other evidence in the case file that Holm-
gren and Papandrew had been discriminately discharged,
Kaynard decided that, "in fairness to the Union and the
individuals, rather than simply move before the Judge
alone, that we should administratively dismiss the charge
at this point, in which case they would have an opportu-
nity to appeal . . . and then at the same time move,
when the hearing opened before the Administrative Law
Judge, to withdraw the allegation." Goodman stated that
the main concern of this discussion focused on the dis-
criminatory discharge allegations rather than the alleged
backdating of Holmgren's and Papandrew's authorization
cards, and he could not remember if the backdating was
discussed or "it was just simply understood [Holmgren
and Papandrew] would not be part of the bargaining unit
which we were alleging the Union consisted a majority
of it . . . . They were out of the case. . . . That was it."
Goodman added:
We didn't specifically discuss the cards. . . . I ad-
vised them that it was my belief that the Counsel
for the Respondent, Mr. Bernstein, upon seeing the
letter and seeing me taking the action that I was to
take to withdraw those allegations would ask me
why I was doing what I was doing, and I asked the
Director what if anything I should tell Mr: Bern-
stein since I assumed he would ask, as I would, and
what I was told by the Director was, these people
are dropped from the case for all purposes, and ev-
the same in his affidavit. Goodman continued that at the initial hearing he
reminded Ponce of this and Ponce told him that he had been mistaken
and that he had not solicited these cards. At the first reopened hearing,
however, Holmgren was able to identify from a photograph Alfred Mu-
sachio, the Union's vice president, as the union official who had solicited
his card and requested that he backdate it. Goodman related that he pre-
viously interviewed Alfred Musachio a few days before the hearing com-
menced with "the possibility of using him as a corroborating witness with
regard to certain events where other witnesses placed him at the scene.
. . . He had absolutely no recollection of any of the events, and I did not
call him as a witness." Goodman, however, did testify that he suspected
that Alfred Musachio had solicited the cards of Dominick Lauriano and
Jorge Arias, As noted before, neither Holmgren nor Papandrew could
identify Alfred Musachio as the union official who had solicited his card
until he was called as a witneo during the first reopened hearing. Good-
man also testified that he first learned that Alfred Musachio was the
union representative involved in the incident either during a meeting be-
tween Bernstein, Kaynard, and himself, after the initial hearing had
closed and Bernstein had revealed this information to them, or at the re-
opened hearing when Holmgren and Papandrew identified Musachio
from a photograph shown to them. It appeared to me that Goodman's
testimony on cross-examination regarding what steps, if any, he had taken
to investigate the information about the backdating of Holmgren and Pa-
pandrew's authorization cards was somewhat guarded and evasive.
erything he needs to know is in the dismissal
letter.3'
Goodman testified that after his discussion with Kayn-
ard and Schwartz, "I wrote up the memorandum. . . in-
corporating the recommendations, the decisions that we
had reached32 and the suggested dismissal language that
we discussed."33
Goodman related that he now called Alex Musachio,
the Union's president, and told him that, "a question had
arisen with regard to cards being back dated. . . [Mu-
sachio] was adamant to the effect that they had gotten
the thirty-one cards and they had shown them to the
boss and anything else was not true." Goodman stated
that he also telephoned the Union's attorney, Lloyd
Somer:
Well, I think this might have been after the Region
had determined to dismiss administratively the alle-
gations in the charge relating to Papandrew and
Holmgren. I think I called him to tell him that, and
also tell him that a question had arisen with regard
to their cards being back dated . . . . and his atti-
tude basically was well, if you are going to dismiss
it, dismiss it. If Alex says we had thirty-one cards,
we had thirty-one cards.
Goodman recounted that in his preparation for the trial
of this matter he had subpoenaed "perhaps twenty-five"
witnesses to appear and testify, including Papandrew and
Hohngren, and admitted that after his discussion with
gl Goodman admitted that there was no discussion at the tune about
"a serious allegation of fraud" that had to be investigated, or that "if
these two cards are back dated, other cards might be back dated as
well," or that the identity of the union official who had 'solicited the
cards of Holmgren and Papandrew should be ascertained and a statement
taken from him.
g2 In his memorandum, "Supplemental Investigation Report," Good-
man wrote:
The evidence indicates that these two discrimmatees engaged in
no protected activity before the time of their discharges. Nor does
the evidence indicate that there was a basis for mistaken belief on the
part of the employer that they had engaged in protected activity.
Rather, the evidence mdicates that they were discharged for the
reasön suggested by the employer, i e., poor attendance.
Moreover, Goodman mentioned nothing in this memorandum about
Holmgren's allegation that he and Papandrew had been told that if they
backdated their cards a claim for backpay would be made by the Union
on their behalf.
The "Suggested Dismissal Language" in Goodman's memorandum
states:
The investigation did not establish that Multunatic Products, Inc.,
herein called the Employer, discharged employees Papandrew and
Holmgren because of their membership in and activities on behalf of
Industrial Trade Union Local 231, herein called the Union as alleged
in your charge. Rather, the evidence tends to show that the Employ-
er had no knowledge of Union activities on the part of employees
Papandrew and Holnigren, and that there was no illegal motivation
involved in their discharges. In view of the above, I am refusing to
issue complaint on this portion of your charge. ,Other portions of
your charge will be processed further. [G.C. Exit. 481
Changes in the suggested wording of the dismissal letter, however,
were made apparently by Regional Director Kaynard as follows: The
second sentence above was changed to read, "Rather the evidence is in-
sufficient to establish that the Employer had knowledge of Union activi-
ties on the part of Papandrew and Holmgren, and that the discharges were
discriminatorily motivated:" and, the last sentence was changed to, "Other
Portions of your charge are being processed further"
1328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Kaynard and Schwartz, which the decision was made to
dismiss the unlawful discharge allegations regarding Pa-
pandrew and Holmgren, he may have advised them that
they need not appear at the hearing, notwithstanding the
subpoenas. 34 A letter dated 25 August 1978, encompass-
ing the revised language in Goodman's recommended
dismissal letter was mailed to all parties in this proceed-
ing. 3 5
Michael Bernstein, the Respondent's trial counsel in
this proceeding, testified that because there were a
number of curious circumstances about this case that
"defied logical explanation," 36 on 24 August 1978, he
sent a letter to Goodman stating:
As you know, Section 10380 of the National Labor
Relations Board Casehandling Manual (Part One)
provides in pertinent part that the Board's trial at-
torney, though an advocate and representative of
the General Counsel, "must not suppress or distort
material evidence." We expect, of course, that you
will honor this provision and disclose, now and
hereafter, any evidence that is or may become mate-
rial to the case even though it might not support
the General Counsel's position herein. Please regard
this as a continuing request. s?
Bernstein explained that although he had "no specific
knowledge of any fraud or anything of that nature. . .
one of my partners, as a matter of fact, pointed out the
provision to me," Bernstein felt that it would be worth
writing the letter to the Board since he had not been in-
volved as the Respondent's counsel during the initial in-
vestigation of this matter "at the regional level, and
therefore I didn't have the same grasp that I would have
had otherwise, and yet, as I started to get into the case,
there were a number of issues which you could not rec-
oncile."38 Bernstein added that this was the only case in
which he had ever sent out a "letter or any request
based on 10380."33
34 At the first reopened hearing Papandrew and Holmgren testified
that Goodman had told them that they need not appear at the initial
hearing to testify.
35 See G C. Exh 49.
36 The discrepancy regarding the date of the Union's demand for rec-
ognition, the issue of Papandrew's and Holmgren's authorization cards,
the question of a card signed by an alleged employee Jimmy Williams
who never worked for the Respondent, etc
37 Sec. 10380 of the Board's Casehandhng Manual (Part One), Unfair
Labor Practice Proceedings, provides:
Role and Conduct of Trial Attorney:
The trial attorney is an advocate. As the representative of the
General Counsel, who has caused the complaint to be issued, it is
his/her duty to introduce admissible evidence that will support the
allegations of the complaint. In so doing, he/she must not suppress
or distort material evidence, or in any way reflect a desire to obtain
a "conviction at any cost"; but this does not mean he/she must
present the respondent's defenses.
Both Bernstein and Goodman testified that Sec. 10380 was never dis-
cussed with them while they were employed by the Board as field attor-
neys
33 Bernstein stated, however, that he could not really say what he
knew then about Holmgren and Papandrew that contnbuted to his writ-
ing this letter.
39 Noting the fact that Bernstein had worked for the Board previously
as a field attorney for approximately 2-1/2 years, and the tenor of his tes-
timony concerning the circumstances surrounding his issuance of this
letter, it is highly inferrable that he strongly suspected, at this point, that
Although acknowledging receipt of the letter, Good-
man could not recall "at any point specifically discussing
the letter until much later in the proceeding, when
[Bernstein] was saying that I had an obligation under this
to have told him what he had since found out what I
had not told him, but in the early days of the hearing, I
don't recall discussing it." Interestingly, Goodman relat-
ed an incident that had occurred between him and Bern-
stein, either during the initial hearing or during the first
reopened hearing, in which Bernstein had placed a
"news article on counsel's table, your table." Goodman
recounted:
[O]ne morning I came in to this hotel for a day of
hearing, and there was a newspaper clipping from
some news periodical describing a situation where
an associate in a law firm was either disbarred, im-
prisoned or both for having put something in evi-
dence at the instruction of a senior partner who was
not a party to the case, and was not disciplined in
any way. I believe that we commented on it later in
the day. Mr. Bernstein said something like you are
an attorney, you have got to do what you think is
right. You have an obligation. You just can't sit
back and tell me that my superiors told me I could
do this or not to do this, but I do not recall if it was
in the earlier stages or the later stages of the hear-
ing.
What occurred at the initial hearing
The initial trial in this proceeding started on 28 August
1978. Bernstein testified that just prior to the commence-
ment of the hearing there was a pretrial conference be-
tween him, Goodman, and Max Schwartz in which they
discussed various issues present in the case, one of which
concerned the allegations that Papandrew and Holmgren
were unlawfully discharged in violation of Section
8(a)(3) of the Act. Bernstein related that Schwartz ad-
vised him that the General Counsel had decided to
amend the complaint and would move at the outset of
the trial to delete the 8(a)(3) allegations pertaining to Pa-
pandrew and Holmgren. Bernstein remembered vividly
that Schwartz had interjected, "And we decided to do
that prior to receiving your letter." Bernstein continued
that, "We didn't discuss that issue any further at that
point because we went on to discuss a host of other
issues, possible stipulations, that sort of thing, including,
as I recall, questions concerning which employees would
go into an appropriate unit. And the trial was about to
commence, so we focused largely on those issues which
were still alive in the case." Goodman testified that
either during their pretrial discussion or soon after the
hearing commenced he and Bernstein worked out a stip-
the Union had engaged in misconduct in the course of its organizational
campaign at the Respondent's plant Moreover, given that sec. 10380
refers to the Board's trial counsel only, Bernstein most likely also suspect-
ed that Goodman might then be or could conceivably become during the
course of the hearing aware of some misconduct on the Union's part.
This appears as the most reasonable and logical explanation for Bern-
stein's action in writing this letter, notwithstanding his havmg testified
that its issuance was a matter of routine "in the sense that I didn't have in
mind anything along the lines of what ultimately developed in this case."
MULTIMATIC PRODUCTS

1329
ulation regarding the inclusion of various employees in
the bargaining unit, the exclusion of others like Holm-
gren and Papandrew, and with several employees re-
maining in dispute.
Goodman related that pursuant to his discussion with
the Regional Director he moved at the opening of the
hearing on 28 August 1978 to withdraw the allegations
in the complaint that asserted Holmgren and Papandrew
had been unlawfully discharged. There was no objection
raised by any of the parties regarding this motion, nor
did anyone question the reasons underlying it and, there-
fore, I granted the motion. Goodman stated that thereaf-
ter the General Counsel never took the position that
either Papandrew or Hohngren should be included in the
unit for purposes of establishing the Union's majority
representation under Gissei."
With the presentation of the General Counsel's case
now commencing, Goodman recounted:
It was my intention to offer into evidence—we
had thirty-one cards in the file, and only a lesser
number related to the question of majority status,
thirty-one cards. Two of them of Papandrew and
Holmgren who were not being alleged to be part of
the unit.
In addition to Papandrew and Holmgren there
are perhaps three or four other cards that were exe-
cuted by the employees sometime after the organi-
zational campaign commenced, but who were not in
the unit for one reason or another on the date of the
demand, one of which was Albert Giammarinaro
and others. It was my intention to offer only those
cards that were relevant, which might have been
twenty-five in my view of the case. [Hector] Lopez,
who was very active in authenticating cards was to
have testified and authenticated perhaps eight or ten
cards, including his own . . . . He authenticated
two or three of the cards including his own, and
then he faltered on the date of a particular card. He
indicated that he had no recollection when it was
signed.
At that point the counsel for the Union . . . Mr.
Pollack.4 ' who is an experienced trial attorney, who
I was relying on to some extent in my first hearing,
leaned over and said why don't you put in all the
cards that were shown to the boss on the date of
the demand, and that will show that all of the cards
you are going to rely on were signed on or before
that date, and it would in effect cure the problem
Mr. Lopez had created by his inability to remember
that particular card, which was not Papandrew's or
Holmgren's, but some card that I was relying on.42
4° NLRB v. Gissel Packing Go, 395 U.S. 575 (1969).
41 Although Goodman had been in contact mainly with Lloyd Somer,
"a younger associate of t,he firm" representing the Union in this proceed-
ing, it was Sanford Pollack, a partner in the law firm who appeared as
trial counsel for the Union that day
42 The 31 signed authorization cards were offered into evidence as
being the cards shown to the Employer on the day the Umon made its
demand for recognition and bargaining The Respondent at no time
raised any objection to this and the cards were admitted mto evidence,
although there was some discussion among counsel as to what precisely
the evidence offered represented, and how it impacted on the issues.
Goodman added that while he was aware at the time of
the question of the "bonafideness" of the cards of Papan-
drew and Hohngren, he had forgotten this, "It was not
on my mind at the moment I introduced the cards" into
evidence.
Bernstein testified that during the first week of trial,
There were a host of issues, including issues which
seemed to arise in the course of testimony, that had
to be dealt with . . . . The reality, as far as we
were concerned, was that we were forced to focus
on the matters which were still the subject of the
proceeding and we felt we were chasing one issue
after another. And it wasn't until the beginning of
the next week, when no trial date was scheduled,
that I was able to focus again on the question of Pa-
pandrew and Holmgren.42
Bernstein stated that he was troubled by the fact that
their cards were dated 17 February 1978 when, accord-
ing to the Respondent's records, their last day of work
was 16 February 1978. Therefore, according to Bern-
stein, he drafted a letter dated 5 September 1978 ad-
dressed to Goodman, which stated:
During the course of the hearing you introduced
into evidence authorization cards allegedly signed
by Robert Papandrew and Robert Eric Holmgren
on 17 February 1978.
As you know, the last working day of both indi-
viduals was 16 February 1978. There is a serious
question, therefore, as to the circumstances sur-
rounding the Union's submission of these cards to
the NLRB. The evidence suggests at the very least,
that the cards are not bona fide; that, even if signed
by these individuals at some time, it was not while
they were working at /vlultimatic Products, Inc.
You have amended the complaint to withdraw
any 8(e)(3) allegations to either. However, the cards
Also, Bernstein admitted that he was aware at the time of this offer that
Holmgren's and Papandrew's cards were dated 17 February 1978, and
that the Respondent contended that these employees had been discharged
on 16 February 1978, and that the backdating of authorization cards were
"on his mind" during the initial hearing.
Although it appeared, from his testimony as a witness for the General
Counsel in the second reopened hearing, that Pollack did not that clearly
remember what had occurred at the initial hearing during the days he
appeared therein as counsel for the Union, he did recall that he had sug-
gested to Goodman that "as long as the door is open, let's put the [au-
thorization] cards in [evidence]," somewhat affirming Goodman's account
of what had occurred concerning the offer of the 31 authorization cards
in evidence.
During the first 5 days of the hearing, from 28 August through 1
September 1978, Goodman called 17 witnesses and virtually completed
the General Counsel's case-in-chief. During this 5-day period, the Re-
spondent's counsel engaged in what the record evidences as vigorous
cross-examination of the General Counsel's witnesses, particulatly with
respect to the circumstances surrounding their signatures and the dates
on their authorization cards. Moreover, while the Respondent contends
that its cross-examination of these witnesses was hampered by the ab-
sence of affidavits or prehearmg statements, the record shows that the
Region produced sworn statements or signed questionnaires for almoSt all
of these witnesses prior to their cross-examination by the Respondent, in-
cluding Alex Musachto, Lopez, Kipnes, Darcy, Walker, Donnelly, Diaz,
Hector Lopera, Woods, Fuentes, Bonfante, Ponce, and Lauriano. Pre-
hearing statements were not provided for witnesses Ezegehan, A.
Lopera, Bolts Vazquez, and Cruz.
1330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
remain in evidence. Moreover, if there was any im-
propriety in connection with these cards, it may
well have a bearing on the validity of other cards
offered into evidences by you, and on the credibil-
ity of those who have testified in regard thereto.
Certainly the evidence to date suggests, at the very
least, that this is no mere remote possibility.
Accordingly, we again draw your attention to
our letter of August 24, 1978 and ask for immediate
and full disclosure of any and all facts of which we
should be aware.
Bernstein testified that after preparing this letter he
telephoned Goodman "as a, courtesy" and told Goodman
that:
I was about to send him a letter and I read to
him the contents of the letter; the heart of it, not
the entire letter, not the salutation for example. And
I stated that if he could assure me that there was no
impropriety as far as the card-signing of Papandrew
and Holrngren was concerned, that that was not the
reason for the deletion of the 8(a)(3) allegations, I
would accept his representation at face value and I
would not bother to send the letter, I would drop
it. Mr. Goodman said to me that he could not pro-
vide any details, but he could assure me that there
was no impropriety, that there was nothing wrong,
there was nothing to it. I told him that his represen-
tation was good enough for me and that I would
not send the letter.44
Concerning this alleged conversation, Goodman testified
that about 5 September 1978, "I really don't recall being
read a letter. But, I recall conversations about this topic,
but I don't recall being read a letter and then being told
that if I gave assurances it would not be sent or anything
to that affect. It may very well have happened, but I
don't recall."46
44 In an affidavit in support of the Respondent's motion to reopen the
initial hearing, signed by Bernstein less than 2 months after the 5 Septem-
ber 1978 conversation between he and Goodman allegedly took place,
Bernstein related his conversation with Goodman as follows.
I telephoned Mr. Goodman and advised hun of the fact that I was
about to send the letter but would refrain from doing so if he assured
me that there was no impropriety of which I should be aware. Mr
Goodman declined to give me any details but at the same time as-
sured me that there was no impropriety involved which would re-
flect on the case. I told him. . . that I would accept his assurance at
face value and, accordingly, would not bother to send him the letter.
This presents a somewhat different wording of what Bernstein testified
was said in this conversation. Bernstein does not mention the names of
Papandrew and Holmgren therein, nor that he read the letter to Good-
man.
Moreover, in the Respondent's brief in support of exceptions, previous-
ly submitted on 27 March 1981, Bernstein related the September 5 con-
versation as follows:
As a courtesy, respondent's counsel, on 5 September 1978, read
him a proposed letter respondent intended to send, again requesting
"immediate and full disclosure of any and all facts of which we
should be aware" Counsel for the General Counsel was told that the
letter would not be sent if he offered his personal assurance that
there was no improprieties . Counsel for the General Counsel
assured respondent's counsel that there were no improprieties. Re-
spondent accepted at face value his word and the letter was not sent.
46 Goodman, in making reference to Bernstein's "different versions in
his papers" of the assurances Goodman had allegedly made to him, "that
Approximately 2 weeks after the alleged conversation
between Bernstein and Goodman on 5 September 1978,
the hearing resumed with Goodman resting the General
Counsel's case on 21 September 1978 and the Respond-
ent presenting its case for the next 6 days. The Respond-
ent called approximately 20 witnesses as part of its de-
fense. Neither the General Counsel nor the Respondent
called Papandrew or Holmgren as witnesses at the initial
hearing, which closed on 28 September 1978.46
What occurred after the initial hearing closed
Bernstein testified that after the close of the hearing on
28 September 1978 he was still "bothered" by the "ques-
tion of Papandrew and Holmgren" and he then asked
Irving Kipnes, one of the Respondent's owners, to con-
tact either Papandrew or Holmgren and find out what
had transpired. 47 According to Bernstein, Kipnes report-
ed back to him shortly thereafter that he had spoken to
Holmgren who had advised him about the backdating of
his and Papandrew's cards. Bernstein stated that shortly
thereafter Kipnes advised him that another employee,
there were no improprieties" and "that there was nothing that related to
the merits of the case of which [Bernstein:I should be advised," testified.
But, in the context of what my instructions were and the context
of the events going on at the time, if [Bernstein] had asked me that
question, which you probably did, my response was probably the
latter of the two, which is there is nothing relating to the merits of
the case of which you should be aware as opposed to me assuring
you there were no improprieties whatever on the part of the Union's
conduct.
Goodman added that in his opinion the allegations in the complaint
concerning Papandrew and Holmgren were being withdrawn and their
cards were not being counted towards the Union's majority representa-
tion, therefore the circumstances concerning these employees, "were not
relevant to the other issues once the charges were dropped . . In the
sense that they no longer related to any material aspect of the case . . .
There was a question as to whether the Union had asked someone to
backdate cards, yes, but to say that because there were other cards, that
is relevant, is not my understanding. . . ."
46 According to the Respondent's counsel, he suspected as of the first
day of the hearing, at least, that Papandrew's and Holmgren's cards had
been backdated. Bernstein related, as one of his reasons for not pursuing
his suspicions until after the close of the hearing, that he was burdened
by time consumed in preparing a defense due to the fact that "we didn't
have the benefit of affidavits that we could use for. questioning"
47 When I asked why he had waited until after the nutial hearing had
concluded to set this investigation in motion, when as early as 28 August
1978 he had been highly suspicious and "bothered" by the alleged dates
of signing on Papandrew's and Holmgren's cards, Bernstein answered.
There were so many allegations, there were so many issues, and
we didn't have the benefit of affidavits that we could use for the
purpose of questioning, we didn't have the benefit of an investigation
wherein the Board, prior to trial, would have asked us many of these
questions so that we would have been prepared for them once a trial
began In addition, from a personal standpoint, I felt at a tremendous
disadvantage in that I was not counsel nor was my firm counsel
during the main part of the investigation. I—we came into the pic-
ture, I believe, in mid-March, and at a time the investigation had
been all but completed.
Moreover, when asked by counsel for the General Counsel on cross-
examination why he had not investigated his suspicions about the back-
dating of Papandrew's and Holmgren's cards during the initial hearing,
Bernstein responded that he had done nothing in this respect because he
"regarded it as a matter of survival to merely deal with all the allegations
that were still pending in the case. I didn't have time. We worked day
and night on the issues that were still in the case." Additionally, when
Bernstein was asked on cross-examination if he had questioned witnesses
duhng the hearing as to the circumstances surrounding the signing of
their cards and whether they had been backdated, his answers appeared
tentative and equivocal, somewhat defensive
MULT1MATIC PRODUCTS 1331
Albert Giammarinaro, had also told him about the back-
dating of his card. 48 Bernstein related that he asked
Kipnes to obtain written statinents to this affect from
Holmgren and Giammarinaro, which Kipnes did on 13
October 1978. On Bernstein's receipt of these statements,
he contacted Regional Director Kaynard and advised
him that the Respondent had important new evidence,
and that Bernstein would like to meet with him
Sometime in late October 1978 Bernstein met with
Kaynard, Regional Attorney Harold Richman, and
Goodman at the Board's Region 29 offices. Bernstein tes-
tified that he told Kaynard what had happened, showed
them the statements of Holmgren and Giammarinaro,
and advised Kaynard that Goodman had been previously
made aware of Holmgren's allegation that he and Papan-
drew had backdated their authorization cards at the
Union's request. Bernstein recounted that he asked
Goodman at various times during the conversation to ac-
knowledge this but, "at first Mr. Goodman merely kept
quiet—what I would call stonewalling. Finally Mr.
Goodman said, when I said, 'Do you deny it?' and I
have to admit I said so rather angrily, and his response
was, 'No." Bernstein then requested that the General
Counsel join the Respondent in a motion to reopen the
case and that the Region undertake to investigate "the
inconsistencies, the fabrications, to which I have alluded
to at various times in the course of these proceedings.
. . . that where there was evidence of fraud, the Gov-
ernment had an obligation to investigate that, and that it
should not put the burden on the Respondent." Bernstein
added that he also suggested that Kaynard refer this
matter to the Department of Justice or the FBI, who,
among other things, could furnish the Region with a
handwriting expert to resolve some of the questions in
the case. According to Bernstein, Kaynard "caucused"
with the other Regional people, out of Bernstein's pres-
ence, and then told Bernstein that, "he would like some
more time to give it consideration," and the meeting was
concluded.4 9
Bernstein testified that shortly thereafter Kaynard ad-
vised him that the Respondent would have- to move on
its own to reopen the hearing, although the Region
would not necessarily oppose it. On 2 November 1978,
the Respondent moved to reopen the hearing on the
grounds of newly discovered evidence. 50 By Order
dated 17 November 1978, I granted the Respondent's
motion to reopen the hearing.
43 According to Giammannaro, he never told anyone from the Region
that he backdated his authorization card. Moreover, the Region never
took the position that Giammannaro should be included in the unit for
bargaining order purposes.
42 Goodman's version of what occurred at this meeting was less de-
tailed than Bernstein's, but was basically similar in nature although con-
tainmg some differences and/or omissions,
5 ° Bernstein stated that because the General Counsel did not oppose
the motion, "various obstacles, from our standpoint, were placed m our
way and we . . did not feel that counsel for the General Counsel was
being cooperative at all." By letter dated 16 November 1978, however,
Bernstein requested copies of all affidavits previously given to the Re-
spondent for purposes of cross-examination during the initial hearing. On
21 November 1978 Goodman sent Bernstein the requested affidavits and
statements of witnesses. It should also be noted that the Union opposed
the motion to reopen.
What occurred at the first reopened hearing
The first reopened hearing commenced on 11 Decem-
ber 1978. Robert Papandrew, William Eric Holmgren,"
and Albert Giammarinaro testified as witnesses for the
Respondent. Also during the first day, Bernstein de-
manded that Goodman admit on the record that he knew
about the alleged backdating of Papandrew and Holm-
gren's cards at the Union's request at the time of the ini-
tial hearing and, when Goodman refused, threatened to
subpoena Goodman to testify as a witness. However,
Bernstein never sought authorization from the General
Counsel in Washington, D.C., as required to have Board
agents testify under the Board's Rules Ind Regulations,
Section 102.118. 52 At the close of the first day of the
first reopened hearing, an adjournment was granted, by
me sine die. Bernstein testified that he now had discus-
sions with Goodman concerning the Respondent's posi-
tion that evidence of the backdating of the cards of Pa-
pandrew, Holmgren, and Giammarinaro required the
General Counsel to "reconsider its position in this case,
not only with respect to the impact of these three cards
in and of themselves, but on various other issues which I
felt were part of an overall pattern . . . ."
Bernstein continued that thereafter, but before 3 Janu-
ary 1979, he met again with Kaynard, Richman, and
Goodman and they discussed the Respondent's request
that the Region amend or withdraw the complaint or, in
the alternative, seek adjournment of the reopened hear-
ing in order for the Region to reinvestigate the case, in
view of the testimony of the Respondent's witnesses on
11 December 1978, and what the Respondent believed to
be numerous discrepancies and inconsistencies in the
record testimony. Bernstein stated that Kaynard resisted
this and asked Bernstein to submit in writing, "all these
discrepancies, inconsistencies, contradictions, and what
not, so that I can consider something concrete." Bern-
stein related that he told Kaynard that, "I would be will-
ing to do it, but in effect you're asking me to write my
brief while we're still in the midst of the trial. You're
asking me. . . to tip my hand as to what our position is,
what it will be, where we see the inconsistencies in the
record." Bernstein recounted that he told Kaynard that
while he was very reluctant to do this since he felt that
Kaynard had not been "sensitive" to his feeling of out-
rage because of what had occurred, if Kaynard was
"really serious about this . . . and if you will assure me
that you in turn will reveal to me what you have in your
files that, in effect, comes within the meaning of Section
10380, then I'll do it." 53 Bernstein added that Kaynard
"gave me his assurance that he will do that."
Si Surprisingly, on cross-examination, Holmgren testified that he told
Jack Kipnes, the Respondent's other owner, that he had backdated his
card, sometime in August or September 1978. According to Bernstein, he
received word of Holmgren's backdated card from Irving Kipnes after
the hearing closed in September 1978. However, HoImgren changed his
testimony about this on redirect examination by the Respondent's coun-
sel.
52 Moreover, at the initial hearing on 28 August 1978, Bernstein had
caused to be issued a subpoena duces tecum seeking documents in the Re-
gion's case file. Goodman moved to quash the subpoena "on the grounds
of the prohibition in Section 102.118 of the rules and regulations." The
motion to quash was granted
53 See fn. 37 above.
1332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
By letter dated 3 January 1979 Bernstein informed
Kaynard:
In response to your request, I have agreed to out-
line, prior to the resumption of any hearing, certain
portions of the testimony I intend to adduce. I am
taking this unusual step in the hope it will convince
the Region that, at the very least, it should invoke
its full investigatory resources before it proceeds
any further with this hearing in order to ascertain
the extent of fraud and deception involved in this
case. I am doing so, moreover, based upon your as-
surance that the Region will disclose whatever in-
formation it has which conflicts with the testimony
adduced to date.54
Bernstein then recited the instances of "fraud and decep-
tion" involving the authorization cards of Papandrew,
Holmgren, and Giammarinaro; the Union's "propensity
for distortion of dates further revealed in connection
with its demand for recognition"; "lies" involving the
discharges of Hector Lopez, Luz Fuentes, and Maria
Bolta Vazquez; conflicting testimony concerning a
number of the authorization cards offered by the Union
to support its assertion of majority representation; and
the findings of a handwriting expert, hired by the Re-
spondent to evaluate the authorization cards, etc. Bern-
stein mentioned the difficulty encountered in locating
witnesses, which could have been avoided "had the
original deception been revealed at the outset," and re-
quested that the Region "follow up on the leads we have
furnished and pursue its investigation of the fraud we
claim exists."
Goodman testified that immediately before or after the
receipt of Bernstein's 3 January 1979 letter he was invit-
ed to meet with Bernstein at Bernstein's office, to review
the evidence that Bernstein allegedly had uncovered, in-
cluding the findings of a handwriting expert hired by the
Respondent. Goodman stated that he then reported to
Kaynard what Bernstein had presented and after discuss-
ing the evidence in the case to date, Kaynard "indicated
that notwithstanding Mr. Bernstein's statements . . . that
he had evidence which established the Union has done
these other area fabrications, what have you, that there
was nothing that cemented that." Goodman related that
Kaynard asked him to prepare a memorandum incorpo-
rating, "a summary of these areas in dispute in this case
and the new information or evidence that Mr. Bernstein
had brought to our attention," which Goodman did on
10 January 1979. Goodman stated that he concluded
that:
Much of what Respondent alludes to in its allega-
tions of "fraud" are mere inconsistencies in the testi-
mony of General Counsel witnesses. . . . Similarly,
54 At the second reopened hearing, Bernstein stated that he was not
asking for "any and all inconsistencies" m the case file, but only those
that reflected "fraud and deliberate misleading" in the context of the
issues of this case Bernstein admitted that the language he used in his
letters to Kaytiard regarding the assurances alleged to have been given
went "well beyond" what Bernstein meant and believed to be what he
was entitled to, although Bernstein maintained that Kaynard knew what
he was referring to and requesting, despite the language used.
with regard to the evidence concerning authoriza-
tion cards and the findings of Respondent's hand-
writing expert, the individuals involved have al-
ready given testimony at the hearing. The state of
the record does not warrant the withdrawal of the
complaint or any portion thereof. It is further sub-
mitted that recalling, administratively, for investiga-
tory purposes, various witnesses would accomplish
little, if anything, as these witnesses have already
given sworn testimony before the Administrative
Law Judge of their accounts, and their testimony
will be duly evaluated by the Administrative Law
Judge. . . . The attorney for Respondent, in a
moment of candor, stated that his client's funds are
exhausted and that the Government should follow
up on his "leads." . . . Finally, while Counsel for
the General Counsel might object to Respondent re-
calling General Counsel witnesses to re-examine
them in light of the alleged newly-discovered evi-
dence of card back-dating, as these witnesses were
all vigorously cross-examined during General Coun-
sel's case-in-chief, it is recommended that the Coun-
sel for General Counsel contact the Union and use
his best efforts to obtain the addresses of these wit-
nesses and make them available to Respondent. We
could issue subpoenas so that they are available.55
Goodman added that Regional Director Kaynard's posi-
tion at that time and thereafter remained that this matter
was, "best resolved by the Administrative Law Judge,
give him your evidence."
By letter dated 25 January 1979, Kaynard notified
Bernstein that he had "carefully considered" the Re-
spondent's request that the Region withdraw the com-
plaint in this matter, or in the alternative, "reinvestigate
the case in light of the alleged inconsistencies in the evi-
dence, which you have mentioned." Kaynard continued
therein:
In view of the fact that the case is presently in hear-
ing before an Administrative Law Judge, I believe
the better course is for all testimony to be given in
open hearing, subject to cross-examination by Coun-
sel and any questions the Administrative Law Judge
may choose to ask.
Kaynard then advised Bernstein that he had directed
Goodman to assist the Respondent in locating any wit-
nesses the Respondent desired to call at the hearing."
In a letter dated 26 January 1979, responding to Kayn-
ard's above letter, Bernstein reminded Kaynard that he
had submitted an outline of "certain portions of the testi-
mony" he intended to rely on in this case, based on
Kaynard's "assurance that the Region will disclose what-
ever information it has which conflicts with the testimo-
ny adduced to date." Bernstein noted in his letter that no
such information had been forthcoming and therefore he
assumed that the Region had none. After again mention-
55 See G.C. Exh. 56.
56 Kaynard made no reference in this letter to his alleged assurance as
mentioned in Bernstein's 3 January 1979 letter.
MULTIMATIC PRODUCTS 1333
ing Kaynard's alleged "prior assurance," Bernstein con-
tinued:
Mr. Goodman, in this connection, has indicated that
the Region is not permitted to turn over to me
copies of any affidavits with respect to any individ-
uals who have not yet testified . . . I respectfully
submit that this would not preclude your advising
me of any conflicts of the type described above. To
conclude otherwise would be to render meaningless
the provision of the Board's Regulations which ob-
ligates counsel for the General Counsel not to sup-
press or distort any material evidence, just as it
would render meaningless your assurances that the
Region will disclose whatever information it has
which conflicts with the testimony adduced to date.
Moreover, by letter to Kaynard dated 29 January
1979, Bernstein requested that in view of the "already es-
tablished" fact that union officials fraudulently induced
the backdating of certain authorization cards, this matter
be "turned over to the United States Attorney's office."
Bernstein also remarked his belief that the Region had
taken no steps to secure sworn statements from Union
Officials, Alex Musachio, Alfred Musachio, Armando
Ponce, and Hector Lopez regarding the backdating of
these cards. Regarding this, Goodman testified that at
Kaynard's request, he prepared a memorandum dated 2
February 1979 in which he recommended to Kaynard
that since the evidence adduced at the hearing up to that
point, "suggests that the officials of Local 231 may have
manipulated the processes of this Agency by submitting
evidence during the investigation of the charge which
they knew was not true . . . the Regional Director
advise the Division of Operations—Management as to
these facts."
Goodman testified that after Kaynard had received
Bernstein's letter of 26 January 1979 he called Goodman
into his office. Goodman related that "[Kaynard] was
very upset about the letter and insisted to me that he had
made no such assurances, or that it warranted a response
on his part." Goodman recalled that Kaynard had asked
him if he remembered any such assurances being made
by himself at their meetings with Bernstein as alleged,
and Goodman responded that he could not recall Kayn-
ard having made any such assurances. Goodman added
that, "I don't know if there was more than one meeting
at this point, but I was at all of the meetings that were
had with Mr. Bernstein and Mr. Kaynard during this
time. I do not recall such a statement being made by Mr.
Kaynard. It may have been, but I don't recall it."57
Shortly thereafter, by letter dated 2 February 1979,
Kaynard advised Bernstein that he found it necessary "to
correct a misunderstanding which you have expressed in
57 Goodman also testified, however, that when he attended the meet-
ing between Kaynard, himself (perhaps Richman also), and Bernstein, in
which the assurance was allegedly made by Kaynard, he had arrived at
the meeting after it had already started and he admitted that he was un-
aware of what had transpired prior to his appearance in Kaynard's office.
Interestingly, Goodman offered his observation that, "knowing Kayn-
ard," he did not believe that Bernstein had received any such assurance
from Kaynard as alleged.
your letter," dated 26 January 1979. Kaynard went on to
say:
When we met in my office in late December, 1978,
you asserted that your investigation on behalf of
your clients had discovered evidence which clearly
disproved a number of the allegations which the
Region had alleged in its complaint and . . . I ex-
pressed a willingness to examine your findings and
to consider what, if any, changes in the position of
the region were warranted. I suggested that you
reduce your findings to the form of a letter for my
consideration. At no time did I assure you that "the
Region would disclose whatever information it has
which conflicts with the testimony adduced to date.
It has been my intention throughout this proceeding
to cooperate with the Respondent and offer to you
all of the assistance that I may, subject to the limita-
tions of the Rules and Regulations of the Board,
particularly Section 102.118.58
The first reopened hearing resumed and continued on
5, 6, and 26 February 1979. Bernstein testified that he did
not feel that counsel for the General Counsel or the
Region was being cooperative at all during the first re-
opened hearing. Bernstein explained:
First, interposing various objections. . . . Secondly,
when it came to eliciting evidence, we felt that
counsel for the General Counsel, rather than trying
to develope a record which provided for a com-
plete disclosure of what had happened, seemed to
be taking positions which were designed to limit the
developement of the record. When it came to pro-
ducing witnesses, we met all kinds of resistence.
the case of Mr. Ponce, there is a whole story there,
in and of itself, concerning the location of Mr.
Ponce, culminating in Mr. Ponce's statement that,
"Had they wanted to find me,"—there he was refer-
ring to the Union—"they knew where they could
get me," or something to that effect. Also, in refus-
ing to join in any stipulation; refusing to state on
the record whether, for example, there was any
truth to the allegations of Papandrew and Hohn-
gren; refusing to even deny on the record what was
being attested to. If authorization was required, re-
fusing to seek such authorization for the witness to
testify. Apparently refusing to investigate once
these individuals came forward; refusing to press for
affidavits from people such as Alfred Musacliio; re-
fusing to deal with some of the inconsistencies on
the cards or to submit them for examination.
58 It should be noted that, while the Respondent made numerous refer-
ences throughout tins proceeding and in its papers submitted here, to
Kaynard's alleged assurance, at the second reopened hearing Bernstein
stated:
Your honor, I aught add that parenthetically that I don't contend
that this question of the assurances is crucial or material to the issues
of the case as far as the merits are concerned. But, since the question
did come up, I felt obliged to go into this further.
1334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Goodman testified that he had been instructed by
Kaynard to assist the Respondent is locating witnesses
and making them available at the hearing, which he at-
tempted to do. Goodman stated that he had asked union
officials for help in locating persons whom the Respond-
ent indicated would be called as witnesses. In this con-
text, according to Goodman, while the Union indicated
that it was unaware of the whereabouts of former Union
Official Armando Ponce, Ponce himself testified at the
first reopened hearing that the Union could have con-
tacted him in Florida, where he had relocated, if it had
wanted to and knew where he was in that State at the
time." Goodman related that he was not particularly
successful in assisting Bernstein by "providing wit-
nesses," as the Region's case file "never had good ad-
dresses" for some of the witnesses requested and the
Union on its part was allegedly unable to locate these
people. Goodman stated that prior to the reopening of
the hearing Bernstein had requested copies of the affida-
vits of witnesses who had previously testified at the ini-
tial hearing and the Region supplied Bernstein with such
affidavits. Goodman, however, added that during the
first reopened hearing the General Counsel called no
witnesses to testify.6°
Additional evidence
Alfred Musachio, the Union's vice president, testified
that although he played little part in the Union's organi-
zational campaign at Multimatic he did once or twice
distribute authorization cards to employees, approximate-
ly 10.61 He did not recall, however, whether the cards
of Papandrew and Holmgren were among these. Musa-
chio stated that when he distributed the cards he told the
employees to fill out and sign the cards, and this would
authorize the Union to represent them in bargaining with
their employer. 62 According to Musachio, no employee
to whom he gave an authorization card asked him any
questions about it and he denied that any of these em-
ployees had informed him that they no longer were em-
ployed by Multimatic at the time they were given their
cards. Musachio also denied that he had requested any
employee to backdate a card or had discussed obtaining
backpay for employees who did so. Musachio related
that he had appeared at the initial hearing and had been
told by the Union's attorney, Sanford Pollack, that he
was not needed as a witness and he then left the hearing
59 Goodman testified that the Region "did subpoena one witness up
from Florida" Apparently this witness was Ponce
60 The General Counsel, in the "Response To Notice To Show
Cause," stated:
The reopened hearing took place on December 11, 1978, February
5 and 6, 1979, and February 26, 1979. Consistent with the position of
the Region that the purpose of the reopening was to permit Re-
spondent full freedom to examine and cross-examine witnesses,
Counsel for the General Counsel called no witnesses of his own but
made available, for examination or further cross-examination by Re-
spondent, those witnesses requested by Respondent, even bringing in
a former Union official from Florida for this purpose.
5 " Musachio testified that Armando Ponce and Hector Lopez had se-
cured most of the cards.
62 Musachio testified that he did not receive any of the completed and
signed cards back personally from the employees.
site.63 Musachio added that he had never been ques-
tioned about this case by any Board agent prior to
Lauren Rich, counsel for the General Counsel at the
second reopened hearing, who had interviewed him pre-
paratory to his appearance as a witness.
Musachio testified that he first learned that Papandrew
and Holmgren had alleged that he had asked them to
backdate their authorization cards to a date before their
discharge, for which the Union would seek to secure
them backpay, at the time of the second reopened hear-
ing when the Union's attorney, Stuart Altman, had asked
him if he had engaged in such conduct. Musachio stated
that he advised Altman that, "there was no truth to it."
Musachio at first maintained that Altman had told him
about Papandrew's and Holmgren's testimony as to the
backdating of their cards at Musachio's request at the
time that Altman questioned him about these allegations
just before he testified at the hearing. However, after
close and continued questioning, Musachio admitted that
Altman had actually discussed these accusations with
him prior to the second reopened hearing, although he
could not recall when this had happened. Musachio also
denied ever discusssing the question of backdated cards
or backpay with his brother Alex Musachio, the Union's
president. Moreover, Musachio was questioned at length
about the circumstances surrounding the Union's request
for recognition and bargaining. His testimony on that
was generally similar to that previously given at the ini-
tial hearing by Alex Musachio, Hector Lopez, and Ar-
mando Ponce. Although Musachio's testimony did con-
tain some inconsistencies, i.e., Alfred Musachio testified
that the Union had exhibited 32 cards to Kipnes on 20
February 1970 in support of its demand for recognition
and bargaining, while the other witnesses testified that
the cards numbered 31.
Alex Musachio testified that he first learned about the
allegations of the backdating of authorization cards in-
volving his brother Alfred "many years ago" from the
transcript of the first reopened hearing. He also acknowl-
edged having discussed such allegations with the Union's
attorney, Altman, also "many years ago." However, Mu-
sachio denied any prior knowledge of the allegation that
his brother had "promised to arrange for backpay claims
based on those backdated cards."64 Musachio added that
at the time he learned about the allegation of backdated
cards, which would have occurred "many years ago," he
then discussed this with his brother Alfred.
B. Analysis and Conclusions
In its Order Remanding Proceeding, the Board's stated
purpose for the remand was to have me adduce further
evidence and make appropriate findings concerning the
Respondent's allegations of fraud on the part of the
Union, as well as the Respondent's allegations of improp-
er conduct by Regional Office personnel, and how that
conduct, to the extent engaged in, affects the validity of
my prior rulings, findings, conclusions, and recommend-
63 Musachio related that there was no one else present at the tune this
happened.
64 It should be noted that the transcnpt of the first reopened hearing
also contained this "backpay" allegation as well.
MULTIMATIC PRODUCTS 1335
ed Order. The Board also instructed me to make credi-
bility resolutions, findings of fact, and conclusions of
law, "in light of the evidence already received, and any
new evidence adduced at the second reopened hearing."
Of course, the burden of proving fraud on the Union's
part and improper conduct by Regional Office personnel
rests with the Respondent.
1. The Union's alleged fraud
The record discloses that during the initial investiga-
tion of the charges filed by the Union in this proceeding,
various affidavits were obtained by Board agents from
the Respondent's employees, union officials, and repre-
sentatives of the Respondent. Additionally, the Union
submitted 31 signed authorization cards to the Board, in-
cluding those of Robert Papandrew, William Eric Holm-
gren, and Albert Giammarinaro, which the Union al-
leged had been shown to the Respondent on 20 February
1978 when it made its request for recognition and bar-
gaining. Affidavits had not been obtained from Papan-
drew and Holmgren because they generally had been un-
cooperative and had clearly indicated to the Region that
they "didn't want to get involved," 66 even though they
had been alleged in the complaint to have been unlawful-
ly discharged for which reinstatment and backpay were
possible remedies. 66 As for Giammarinaro, "he was not
employed by the Employer on the date recognition was
requested, and he was not alleged as a discriminatee . .
not included in the appropriate unit, and his card was
not counted as part of the majority showing of the
Union. Accordingly, he was not interviewed during the
investigation."
In connection with his trial preparation and despite the
uncooperative attitude of Pa,pandrew and Holnagren,
counsel for the General Counsel, Stanley Goodman, had
telephoned these employees on several occasions to as-
certain the true circumstances surrounding the signing of
their authorization cards since they had given hint con-
flicting dates as to when they had signed their cards and
as to the date of their discharge,67 although it would
appear that Papandrew and Hohngren also continued to
defend the validity of their cards during these conversa-
tions. On 24 August 1978, however, with the hearing
scheduled to commence on 28 August 1978, Goodman
telephoned FIolmgren in order to get "a straight story"
from him and to prepare him for trial whereupon Holm-
gren changed his account of what had occurred regard-
65 The evidence shows that Papandrew and Hohngren failed to appear
for scheduled appointments and declined to meet personally with _Board
agents, although they did complete and return questionnaires containing
information about the signing of their authorization cards sent to them by
counsel for the General Counsel, Stanley Goodman.
66 The General Counsel asserts that smce the cards of Papandrew and
Holnigren were dated 17 February 1978, and the Region's investigation,
at least up through 24 August 1978, had indicated that these employees
were discharged on 17 February 1978, although Papandrew's question-
naire hsted his last date of employment as 15 February 1978, and "based
upon the timmg of their alleged discharges, the Employer's anti-union
ammus, and the evidence of substantial unfair labor practices, the Region
concluded that their discharges should be alleged as unlawful in the com-
plaint."
67 Also, in his questionnaire, Papanclrew had listed that his last day of
work was 15 February 1978 while the Respondent's employment records
stated that Papandrew had worked on 16 February 1978.
ing the signing of his and Papandrew's authorization
card. Holingren now advised Goodman that he and Pa-
pandrew had left work early on Thursday (16 February
1978) with the Respondent's permission, but had failed to
appear for work the following day, Friday (17 February
1978). When Holmgren reported for work on Monday
(20 February 1978), he was told that both he and Papan-
drew were fired and Holmgren left the plant. Hohngren
and Papandrew returned to the Respondent's plant on
Thursday (23 February 1978) to pick up their final pay-
checks and observed a picket line at the plant. Papan-
drew and Holmgren were approached by a "Union guy"
who asked if they were employees of the Respondent,
and when they advised him that they were no longer
employees, he requested that they sign authorization
cards anyway, backdate the cards to the last day they
worked there, and then the Union would get them back-
pay for this. Papandrew and Holmgren signed the au-
thorizations cards, backdating them. Holmgren could not
identify the union representative who had requested the
backdating of their cards at this time."
Goodman then called Union President Alex Musachio
and asked whether there had been any backdating of
cards as alleged by Holmgren and was told that there
was no truth to this allegation. Goodman also contacted
the Union's attorney, Lloyd Somer, who supported Mu-
sachio'S denial of any backdating of authorization cards.
In this connection, it should be noted that the Union
maintained throughout this proceeding that 31 cards, in-
cluding those of Papandrew, Holmgren, and Giammarin-
aro, were shown to the Respondent at the time the
Union made its request for recognition and bargaining,
with the Union alleging that this had been done on 20
February 1978.
The initial hearing commenced on 28 August 1978, at
which time Goodman moved to amend the complaint to
withdraw the allegations of unlawful discharge and fail-
ure to reinstate Papandrew and Holmgren. The motion
was granted without opposition raised thereto. More-
over, the 31 authorization cards, including those of Pa-
pandrew, Hohngren, and Giammarinaro, were received
in evidence without objection, albeit for a limited pur-
pose only, as set forth above. Neither Papandrew, Holm-
gren, or Giammarinaro were called as witnesses to testi-
fy, by any of the parties. The hearing closed on 28 Sep-
tember 1978.
On motion by the Respondent to reopen the hearing
and granted by me over the objection of the Union, a
first reopened hearing commenced on 11 December
1978. Papandrew, testifying as a witness for the Re-
spondent, stated that his last day of employment was 16
February 1978. On 23 February 1978, when he returned
to the Respondent's plant to pick up his paycheck, a
union official, Alfred Musachio, handed him an authori-
zation card to sign. Papandrew related that although he
told Musachio that he no longer worked for the Re-
spondent Musachio requested that he sign the card
anyway, backdate it to 17 February 1978, and the Union
68 Goodman also called Papandrew to confirm Holmgren's statements
but Papandrew could not recall the sequence of events and refused to get
involved and told Goodman to "get off his back" and leave him alone.
1336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would get him "backpay or something like that." Papan-
drew then signed the authorization card and backdated
it." Holmgren testified that his last day of work was
also on 16 February 1978. Holmgren stated that he was
with Papandrew when Alfred Musachio gave them both
authorization cards to sign. Musachio told Holmgren to
sign and backdate the card to 17 February 1978, even
though Holmgren advised Musachio, as Papandrew had,
that he was no longer employed by the Respondent. Ac-
cording to Holmgren, Musachio promised to obtain
backpay for Ho/mgren as wel1. 70 Additionally, Giam-
marinaro testified that on the last day he worked for the
Respondent, 10 February 1978, he was given an authori-
zation card to sign by Armando Ponce who requested
that he backdate the card to 6 February 1978, which he
did. 71 Alfred Musachio was not called as a witness to
testify at the first reopened hearing by any of the parties.
At the second reopened hearing upon remand, Alfred
Musachio testified that while he had distributed authori-
zation cards to "approximately ten employees" he could
not remember if Papandrew and Holmgren were among
the 10. Musachio denied that he had asked any employee
to whom he gave a card to backdate it, or promised
them backpay if they signed and backdated their cards.
However, I do not credit Musachio's denial regarding
this. Musachio's testimony was fraught with contradic-
tions and his denial of instigating the backdating of Pa-
pandrew's and Holmgren's authorization cards and
promising them backpay as an inducement to do so, was
unconvincing. For example, Musachio initially testified
that he first learned about the accusations made against
him by Papandrew and Hohngren, when he was told
about this by the Union's attorney, Stuart Altman, at the
second reopened hearing, just before he was scheduled
to testify. However, on close questioning by the Re-
spondent's counsel, Musachio admitted that Altman had
actually discussed these allegations with him prior to that
time although he could not recall exactly when this had
occurred. 7 2
Additionally, Musachio testified that he had never dis-
cussed the question of backdated cards or backpay with
his brother Alex Musachio, the Union's president. How-
ever, Alex Musachio testified that on learning of the ac-
cusations alleging the involvement of his brother in the
backdating of Papandrew's and Holmgren's authorization
"Although Papandrew testified that he had informed a Board agent
investigating the case and counsel for the General Counsel of this, he ad-
mitted that he had also told Goodman that he did not want to testify in
this proceeding. His testimony concerning this was at times equivocal
and contradictory. I do not believe that he informed anyone at the
Region about the backdating until he testified at the first reopened hear-
ing.
70 Holmgren testified as a witness for the Respondent and stated that
he had advised Goodman that he backdated his authorization card al-
though he admitted that he initially told him that he had signed the card
on the date set forth, 17 February 1978.
71 Giammarmaro testified as a witness for the Respondent. Moreover,
because of the unconvincing nature of Ponce's testimony at the first re-
opened hearing, I discounted his denial that he asked Giammarinaro to
backdate his authorization card. I find no valid reason to change this
ruling or to credit Ponce's denial now.
72 It should be noted that Altman was present on 11 December 1978
when Papandrew and Holmgren testified at the first reopened hearing in
the capacity "Of counsel for Gutterman and Pollack, Esqs.," the Union's
attorneys' of record at the time
cards he had discussed this with his brother Alfred,
"many years ago" and prior to the second reopened
hearing, although he denied having discussed the ques-
tion of backpay with him 7 3 Moreover, it should be re-
membered that Papandrew and Holmgren testified on 11
December 1978, the first day of the first reopened hear-
ing. The Union failed to call Alfred Musachio during
that phase of the hearing as a witness to controvert the
testimony accusing him of complicity in the backdating
of their cards and promising them backpay for this un-
lawful act. Even though Musachio subsequently did testi-
fy some time later in the second reopened hearing in
February 1983, his failure to testify previously, without
adequate explanation, must reflect adversely on his sub-
sequent testimony concerning this issue and adds to its
suspect nature. I, therefore credit the testimony of Pa-
pandrew, Holmgren, and Giammarinaro concerning the
backdating of their cards at the Union's request and
promises of backpay for their cooperation in this.74
In my original decision dated 30 January 1981 and re-
garding the above incidents, I stated, "I am disturbed by
the conduct of the Union and the implications the above
evidence carries therewith. . . ." After consideration of
the entire record in this proceeding,'" I realize the inad-
equacy of that statement. The evidence clearly shows
that the Union engaged in misconduct and fraud through
the actions' of its officers and agents, Alfred Musachio
and Armando Ponce, and I so find. Moreover, such a
finding further casts doubt on the account given by
union Officials as to what occurred on the day the Union
demanded recognition and bargaining, since there could
not have been 31 authorization cards in existence, as al-
leged by the Union, when it made such demand on 21
February 1978. 76 Therefore, Alex Musachio, Hector
Lopez, Armando Ponce, and Alfred Musachio knowing-
ly misstated the facts both during the investigation and in
their testimony given in this proceeding. The record
strongly suggests that union officials may have tnanipu-
73 Alex Musachio denied any prior knowledge of the allegation that
his brother Alfred had "promised to arrange for backpay claims based on
those backdated cards,' until the second reopened hearing. This seems in-
credible, smce Musachio admitted that Altman "long ago" had discussed
with him the allegation of the backdating of Papandrew's and Holm-
gren's cards. I cannot believe nor understand why Altman would refrain
from mentioning to Musachio, a companion, an equally serious accusa-
tion, that of procuring fraudulent backpay, when he already had apprised
him of the other one and this leads me to doubt Alex Musachio's testimo-
ny in this regard.
74 I am aware that Papandrew and Holmgren had previously stated
that their cards had been signed on the date set forth above, and without
any mention of backdating at the Union's request or the promise of back-
pay However, these statements were made orally or in questionnaires
and were unsworn declarations The fact that their later testimony was
given under oath and subject to crimmal perjury statutes, and there being
no evidence produced to even suggest another motive for the nature of
their testimony other than a regard for the consequences of lying under
oath, leads me to believe that their testimony given at the hearing was
true. This also is applicable to thammaruaaro's testimony
75 This includes the evidence at the initial and first reopened hearings,
and the additional evidence submitted at the second reopened (remand)
hearing.
76 Although the Union maintained that it had made its demand for rec-
ognition and bargainmg to the Respondent on 20 February 1978, in my
decision I concluded that the demand was actually made on 21 February
1978. After reviewing the additional evidence in the second reopened
hearing, I find no valid reason for changing that conclusion.
MULTIMATIC PRODUCTS 1337
'
lated the processes of the Board by submitting evidence
in this proceeding that they knew to be untrue. Under
these circumstances, I recommend that the Board consid-
er referring the evidence of the Union's fraudulent con-
duct to appropriate authorities for possible prosecu-
tion. 7 7
2. The alleged improper conduct by Regional
Office personnel
Section 102.118(a)(1) of the Board's Rules and Regula-
tions, in substance, prohibits any Board officer or em-
ployee from producing or presenting any files, docu-
ments, reports, memoranda, or records of the Board or
of the General Counsel, whether in response to a subpoe-
na duces tecum or otherwise, or testifying in behalf of
any party to any cause pending before the Board, with
respect to any information, facts, or other matter coming
to his knowledge in his official capacity or with respect
to the contents of any files, documents, reports, memo-
randa, or records of the Board or the General Counsel,
whether in answer to a subpoena or otherwise, without
the written consent of the Board or where applicable the
General Counsel.
Section 102.118(bX1), in substance, provides that after
a witness called by the General Counsel or the Charging
Party testifies in a hearing any statement of such witness
in the possession of the General Counsel, which relates
to the subject matter to which the witness testified, must
be produced upon motion of the Respondent and as or-
dered by the administrative law judge, and given to the
Respondent for his examination and use for the purpose
of cross-examination.
Moreover, and as indicated above, Section 10380 of
the Board's Casehandling Manual (Part One), Unfair
Labor Practice Proceedings provides that the Board's
trial attorney, as a representative of the General Counsel,
has a duty not to "suppress or distort material evidence,
or in any way reflect a desire to obtain a 'conviction at
any cost"; but this does not mean he must present the re-
spondent's defenses."
The evidence shows that after issuance of the com-
plaint, this case was reassigned to Board Attorney Stan.-
ley Goodman for trial preparation. 78 In preparing the
case, Goodman had obtained signed and completed ques-
tionnaires from alleged discriminatees Robert Papandrew
and William Eric Holmgren which seemed to confirm in-
formation already obtained by the Region during the
precomplaint investigation to the effect that they had
signed their authorization cards on 17 February 1978.
During the weeks immediately preceding the scheduled
trial date, 28 August 1978, however, Goodman's efforts
to secure affidavits from Papandrew and Holmgren were
met with frustration and a lack of success. 79 Although
77 Marine's Memorial Club Assn , 261 NLRB 1357 (1982). Also see sec.
10054.5 of the Board's Casehandhng Manual (Part One), Unfair Labor
Practice Proceedings
78 It should be noted that this was Goodman's first unfair labor prac-
dee case trial and involved allegations of multiple violations of Sec.
8(a)(1), (3), and (5) of the Act, and the issue of a remedial Gissel case
bargaining order,
78 Papandrew and liolmgren had failed to appear for scheduled ap-
pomtments to furnish affidavits and had declined to meet with Goodman
Goodman spoke to them by telephone on at least three
occasions, Papandrew and Holmgren maintained their
unwillingness to cooperate with the Board or "to get in-
volved," the claims on their behalf notwithstanding.
More importantly to Goodman, he was unable to obtain
a "cohesive" version of the events involving their dis-
charge and the signing of their authorization cards from
either Papandrew or Holmgren, and the trial commence-
ment date was fast approaching.
Therefore, on 24 August 1978, 4 days before the hear-
ing was scheduled to open, 8 ° Goodman once again con-
tacted Holmgren in an effort to obtain a "straight story"
and to prepare him for trial as a witness. During their
telephone conversation and for the first time, Holmgren
told Goodman that he and Papandrew had backdated
their cards at the request of a union representative.
Holmgren related that he and Papandrew had left work
early on Thursday, 16 February 1978, with their supervi-
sor's permission, had failed to return to work the next
day, Friday, 17 February 1978, without permission, and
when Holmgren reported for work the following -
Monday, 20 February 1978, he was advised by the Re-
spondent that he and Papandrew were fired because of
their poor attendance record. Holmgren continued that
when he and Papandrew returned to the Respondent's
plant on Thursday, 23 February 1978, to pick up their
final paychecks "someone" from the Unions ' asked them
to sign authorization cards, to backdate the cards to their
last date of employment, and promised to obtain backpay
for them, notwithstanding that they told the union agent
that they no longer were employed by the Respondent at
that time. 82 After his conversation with Holmgren,
Goodman called Papandrew, but Papandrew would nei-
ther confirm nor deny Holmgren's account of what had
occurred, instead telling Goodman that he could not re-
member what happened, that he wanted to be left alone,
that he did not want to get involved, and that Goodman
should "get off my back."
With all the above as background, now occurred the
events on which the Respondent bases its allegations of
misconduct and a "cover-up" by Regional Office person-
nel.
On 24 August 1978, immediately after his conversa-
tions with Holmgren and Papandrew, Goodman met
with Regional Director Kaynard and Acting Regional
Attorney Schwartz and reported to them what had just
transpired, seeking their advice and guidance as to what
to do next. After some discussion, and there apparently
being no other evidence in the file to establish that the
Respondent had discriminatorily discharged Papandrew
and Holmgren, it was decided that the charges involving
these former employees would be dismissed administra-
personally to provide information about their alleged unlawful discharges
and the signing of their authorization cards.
88 This occurred on Thursday with the trial scheduled to commence
on the following Monday, 28 August 1978.
Goodman testified that he asked Holmgren if he could identify the
union representative or agent, but Holmgren was unable to do so.
82 Goodman was unsure whether Holmgren had mentioned anything
about the Union's promise of backpay during their telephone conversa-
tion because Goodman had omitted to include this in his report of the
conversation to Regional Director Kaynard.
1338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tively88 and that Goodman, as counsel for the General
Counsel, would move at the hearing to withdraw the al-
legations in the complaint alleging violations of Section
8(a)(3) and (1) regarding Papandrew and Holmgren,
seeking to amend it accordingly. It was also decided to
exclude Papandrew and Holmgren from the unit appro-
priate for the purposes of collective bargaining and not
to count their signed authorization cards towards estab-
lishing the Union's alleged majority status for "Gissel
bargaining order purposes." Moreover, Goodman was
advised by Kaynard that should the Respondent's coun-
sel, Bernstein, ask the reason for the General Counsel's
action in withdrawing the allegations in the complaint
concerning Papandrew and Holmgren he was to tell
Bernstein that "everything he needs to know is in the
dismissal letter." 8 4
Soon after this meeting and also on 24 August 1978,
Goodman telephoned Union President Alex Musachio,
and told him that there had been an assertion made that
authorization cards had been backdated at the Union's
request, but Musachio denied that there was any truth to
this. Goodman also called Lloyd Somer, one of the
Union's attorneys, who supported Musachio's denial of
any alleged backdating of cards.
Additionally, shortly after his discussion with Regional
Director Kaynard, Goodman prepared a memorandum
"Supplemental Investigation Report" in which he states
as to Papandrew and Holmgren-
The evidence indicates that these two alleged discri-
minatees engaged in no protected activity before
the time of their discharges. . . . Rather the evi-
dence indicates that they were discharged for the
reason suggested by the employer, i.e., poor attend-
ance.
Also included was "Suggested Dismissal Language" to
be used in the letter to the Union,85 dismissing the
charges regarding Papandrew and Holmgren, as follows:
The investigation did not establish that. . . the Em-
ployer, discharged employees Papandrew and
Holmgren because of their membership in and ac-
tivities on behalf of. . . the Union, as alleged in the
charge. Rather the evidence tends to show that the
employer had no knowledge of Union activities on
the part of Papandrew and Holmgren, and that
there was no illegal motivation involved in their
discharges.
The language of the letter of dismissal issued by the
Region, as modified by Kaynard, reads:
83 According to Goodman, Kaynard had decided to take this action in
order to give the Union, Papandrew, and Holmgren "an opportunity to
appeal."
84 Goodman admitted that there was no discussion at this meeting
about any "serious allegation of fraud" that should be investigated, or
consideration that "if these two cards are backdated, other cards might
be backdated as well," or that the Identity of the union official who had
solicited the cards of Papandrew and Holmgren should he ascertained
and a statement obtained from him
85 The dismissal letter, addressed to the Union, was sent to the Union,
the Respondent, and to their respective legal counsel.
Rather, the evidence is insufficient to establish that
the Employer had knowledge of Union activities on
the part of employees Papandrew and Holmgren
and that the discharges were discriminatorily moti-
vated.
The Respondent asserts in its brief:
In the language Goodman suggested for the letter
of dismissal, however, that unequivocal denial of
union activity was replaced by ambiguous language
implying both employees had engaged in protected
activity, but the employer was unaware of it. He
drafted it in this manner after receiving instructions
from the Regional Director as to how the letter
should read. . . .
Even this language proved unacceptable to the
Regional Director. The latter modified it in such a
way as, in Goodman's words, "to make it more am-
biguous". . . .
As Goodman testified, "Draw your own conclu-
sion.". . . Goodman had asked the Regional Direc-
tor what he should tell Michael I. Bernstein, coun-
sel for the respondent, since he assumed Bernstein
would ask . . . upon receipt of the letter and after
the complaint was amended, why this was being
done. Goodman was told by the Regional Director,
"these people are dropped from the case for all pur-
poses, and everything he [Bernstein] needs to know
is in the dismissal letter." (This of course, was not
the case, as Goodman pointedly conceded: The dis-
missal letter "does not state the conclusion [e.g.,
that there was no protected activity] that I drew in
my memorandum) "
Moreover, by letter dated 24 August 1978, Bernstein
wrote to Goodman requesting that he honor the provi-
sions of Section 10380 of the Board's Casehandling
Manual (Part One), which provides that the Board's trial
attorney "must not suppress or distort material evi-
dence," and requested that Goodman disclose "now and
hereafter, any evidence that is or may become material
to the case even though it might not support the General
Counsel's position herein."88
The Respondent, in substance, asserts that what oc-
curred above, plus the absence of any real investigation
by the Region into the facts surrounding Holmgren's al-
legation of the backdating of his and Papandrew's au-
thorization cards at the insistence of the Union, gives rise
to a strong inference that the Region engaged in a delib-
erate "cover-up" of the Union's misconduct and failed to
disclose this information so as not to weaken the General
Counsel's case against the Respondent. Moreover, the
Respondent argues that the evidence of backdating
should have been disclosed, so that the credibility of wit-
nesses and the validity of other cards could be attacked,
also relying on Casehandling Manual, Section 10380,
providing that the General Counsel's trial attorneys are
required not to "suppress or distort material evidence."
86 Bernstein admitted that this was the first case before the Board in
which he had issued such a letter as counsel for one of the parties
Therefore, by such actions, the Region engaged in im-
proper conduct. I disagree.
Until 24 August 1978 both Papandrew and Holmgren,
in verbal statements to Goodman and in their signed
questionnaires, had maintained that they signed their au-
thorization cards on the date set forth, 17 February 1978,
making no mention of the backdating of their cards or
the Union's involvement. It was only on 24 August 1978
when Goodman was attempting to persuade Holmgren
to appear for trial preparation, which both he and Papan-
drew had refused to do before, that Holmgren informed
Goodman of the circumstances of his and Papandrew's
discharge and that their authorization cards had been
backdated at the Union's request. Papandrew, when con-
tacted by Goodman, failed to corroborate or support
Holmgren's "eve-of-trial" verbal recantation of his prior
account of their discharge and the signing of their au-
thorization cards. Additionally, when Goodman sought
to further investigate into this question and contacted
Union President Alex Musachio and the Union's attor-
ney, Lloyd Somer, both denied that any backdating of
cards had occurred. Moreover, Goodman's pretrial ques-
tioning of other card signers disclosed no infirmities in
their cards and the Respondent was not challenging at
the time the assertion that 31 cards were presented to it
at the time the Union requested recognition and bargain-
ing (a figure consistent with no backdating).
The General Counsel asserts:
MULTIMATIC PRODUCTS
circumstances the Region, given the imminence of
trial, took steps to drop the two employees from the
case and proceed to trial.
In hindsight, it may have been more prudent to
postpone the trial and to make the exhaustive in-
quiry. However, even if this hindsight judgment is
correct, this is not a situation where the Region
chose not to inquire for fear of what might be
found. As set forth above, the Region did inquire,
and found nothing to support Holmgren's last
minute assertion. In these circumstances, the failure
to make a fuller inquiry was simply a judgment call,
made in the light of the available evidence and the
imminent trial date. Even assuming arguendo that, in
hindsight, a different course would have been pref-
erable, there was no purposeful decision to termi-
nate the inquiry so as to void and conceal the truth.
1339
Faced with the above evidence that Papandrew and
Holmgren may have back -dated the cards, Counsel
for the General Counsel was confronted with a seri-
ous question as to which position of Papandrew and
Holmgren was truth, their assertions in_their ques-
tionnaires and phone conversations before August
24, or the August 24 information. . . .
The Region thereupon, took the immediate action
of removing Papandrew and Holmgren from the
complaint by dropping the Section 8(a)(3) allega-
tions and by eliminating any reliance on their cards
to support the majority status allegations of the
complaint." At that the point in the proceeding the
Region was satisfied that it had taken all the appro-
priate steps in light of the back-dating allegation by
Holmgren. The extensive pretrial preparation by
Counsel for the General Counsel in which employ-
ees had been questioned in great detail about the
circumstances of their card signing, including par-
ticularly the date and place of such signing, togeth-
er with the failure of Papandrew to corroborate
Holmgren and the denials by the Union, not only
left the evidence of the back-dating of the Holm-
gren and Papandrew cards inconclusive, but also in-
dicated that any back-dating that may have oc-
curred was limited to those two cards.
It may be that a further inquiry by the Region
would have uncovered more evidence to support
the proposition that back-dating had occurred. . .
At the time, however, the only evidence involving
back-dating related to Papandrew and Holmgren's
cards and there was no evidence that there was any
back-dating involved with any other cards. In these
12 The Region's action in dismissing those portions of the com-
plaint concerning the discharges of Papandrew and Holmgren sub-
sequent to Holmgren's disclosure that their cards had been back-
dated at the behest of a Union agent may lead to the misapprehen-
sion that in taking the aforesaid action that the Region gave cre-
dence to Holmgren's assertion that their cards had been fraudulent-
ly back-dated The fact is that the Region was not able to resolve
administratively the issue of whether such back-dating occurred.
Rather the Region simply concluded that it could not sustain its
burden of establishing that Papandrew and Holmgren were dis-
charged for discriminatory reasons.
I concur with the General Counsel's reasoning as sup-
ported by the evidence in the record. s7 The Region was
not required, at this juncture of the case, to disclose to
the Respondent, the eve-of-trial verbal assertion by
Holmgren that he and Papandrew had backdated their
authorization cards at the Union's request, contrary to in-
formation provided previously by them, uncorroborated
by Papandrew who was also involved in this incident, in-
consistent with much of the other evidence amassed by
the Region during the investigation of the case, and the
occurrence of which was denied by the Union. Holm-
87 This position is also consistent with Regional Director Kaynard's
revision of the language used in the letter of dismissal sent to the parties,
which the Respondent points to as evidence of an intent to suppress and
distort the evidence Moreover, I do not find that Goodman's testimony
concerning this necessarily refutes the above Goodman testified that the
wording of the letter did not reflect his own evaluation of the material in
the Region's case file and hinted that revision of his proposed wording of
the latter might warrant an adverse inference by statmg, "[D]raw your
own conclusions" This, however, was Goodman's first trial He was ad-
mittedly inexperienced, although I found him to be generally an able trial
lawyer as counsel for the General Counsel during this proceeding, and
his trial strategy and "judgment calls" were subject, even more so by his
own action in seeking direction from the Regional Director as to this in-
cident, to review and possible change and modification based on Kayn-
ard's more experienced evaluation
Moreover, when Goodman testified as a witness at the second re-
opened hearing, it was obvious that he was thoroughly shaken and upset
by the Respondent's allegations against the Region, which necessarily
and clearly impacted on his reputation and conduct as trial counsel. De-
fensively, as it appeared to me, Goodman, when he stated "Draw your
own conclusion," in affect was saying that on the chance that misconduct
is found on the part of the Region he was not to blame, that he was only
following his superior's orders, rather than that he was confirming a de-
liberate and calculated plan on the Region's part to mislead the Respond-
ent or "cover-up" the Union's misconduct so as not to detract from the
General Counsel's case.
1340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gren's revelation was neither reliable nor conclusive, al-
though if true, it could have been relevant under certain
circumstances, to other issues in the case. Moreover, ex-
isting Board law and policy prohibited the disclosure of
this material." Thus, the Region engaged in no miscon-
duct in this respect.
As to the Respondent's argument that Casehandling
Manual, Section 10380, required and warranted the Re-
gion's disclosure of Holmgren's backdating assertion, its
reliance there is misplaced. Holmgren's last-minute
verbal recantation of prior information given by him to
the Board is not the type of evidence that must be dis-
closed during a trial attorney's prosecution of a case.
The Casehandling Manual section refers to a situation in
Which the General Counsel has in his possession clear
evidence that is relevant and material to the case, and he
suppresses or distorts that evidence." Moreover, as
stated in the Casehandling Manual its purpose is to estab-
lish procedural and operational instructions for the guid-
ance of the agency staff in administering the National
Labor Relations Act. The instructions are not Board rail-
ings or directives, and are not a form of authority bind-
ing on the Board.
In Birdsall Construction Co., 198 NLRB 163, 165
(1972), however, the Board affirmed an administrative
law judge's fmding that:
[An administrative law judge] is bound by the
Board's Rules and Regulations but not by General
Counsel's instructions to members of his staff. This
is not to say, however, that a paucity of evidence or
an irregularity in procedure which is in violation of
the General Counsel's instructions to its staff will
have no effect upon the decision reached by the
[administrative law judge]. The effect will depend,
not upon noncompliance with the General Coun-
sel's instructions qua instructions, but upon the
quantum of reliable evidence presented or the inher-
ent fairness of the procedures followed. [Emphasis
added.]
Moreover, the Board has consistently held, as reflected
in Aeroglastics, Inc., 228 NLRB 1157, 1158 (1977), that
"as the NLRB Casehandling Manual confers no legal
rights, the Respondent could not have been legally prej-
udiced regardless of the purported non compliance."90
88 See Board's Rules and Regulations, Sec 102.118(a)(1).
89 "[H]indsight" notwithstanding, however, compliance by the Region
with the General Counsel's own procedural guidelines contained in the
Casehandling Manual (Part One), Unfair Labor Practice Proceedings,
dictated a "different course" of action by the Region, that of postponing
the trial and making an "exhaustive inquiry" into not only Holmgren's
allegations, but if found to be true, the residual effect and impact on
other allegations and charges made by the Union. See Casehandhng
Manual, Secs. 10057(1-4), 11028(1, 2, and 4), and 10054.5. Thus, if the
Region pressed the matter it may have discovered that Alfred Musachio
was the solicitor of Holmgren's and Papandrew's cards and rigorous ex-
amination of Musachio might have revealed the truth. Also, it may have
been discovered that Giammarinaro also backdated his authorization card
at the Union's behest, this time by Union Representative Armando
Ponce
9 ° Accord. B C Hawk Chevrolet, 226 NLRB 527 (1976); West Side
Manor Nursing Home, 203 NLRB 100 (1973).
On 28 August 1978 the first day of the initial hearing,
a pretrial conference was held between the parties during
which Goodman advised Bernstein that he intended to
move to amend the complaint to withdraw the allega-
tions of unlawful discharge concerning Papandrew and
Holmgren. The Respondent did not request an explana-
tion for this nor did the General Counsel offer any. At
the outset of the trial the motion was made and with no
objection being raised thereto, I granted the motion.
That same day and during the course of the hearing,
under the circumstances described above, Goodman of-
fered into evidence 31 signed authorization cards, includ-
ing those of Papandrew and Holmgren, for the limited
purpose of establishing that these cards were in existence
on 20 February 1978, the date the Union alleged it had
demanded recognition and bargaining from the Respond-
ent." The Respondent raised no objection to the intro-
duction of these cards into evidence although admittedly,
the Respondent's trial counsel, Bernstein, strongly sus-
pected that the cards of Papandrew and Holmgren may
have been backdated, since the dates on their cards read
17 February 1978, while the Respondent's records indi-
cated that these employees' final day of work was 16
February 1978.92
According to Bernstein, during a week's recess in the
hearing, he began to be "troubled" by the authorization
cards of Papandrew and Holmgren. Therefore, on 5 Sep-
tember 1978 Bernstein drafted a letter to Goodman,
which made reference to these authorization cards, sug-
gested that they were not "bona fide," pointed to the
fact that although the allegations in the complaint con-
cerning Papandrew and Holmgren had been withdrawn
their cards remained in evidence, and requested "disclo-
sure of any and all facts of which [Respondent] should
be aware," apparently in connection with the authoriza-
tion cards. Bernstein then -called Goodman and advised
him about the contents of the letter and proposed that if
Goodman could assure him that there were no impropri-
eties regarding the card signing of Papandrew and Holm-
gren he would refrain from sending the letter. Bernstein
testified that Goodman responded, "that he could not
91 This action was taken at the suggestion of the Union's attorney, Pol-
lack, a substantially more experienced lawyer in both labor law and trial
tactics than was counsel for the General Counsel, Goodman, in order to
avoid a problem with witness Hector Lopez, whose testimony was being
used to provide a foundation for the introduction of signed authorization
cards into evidence, some of which would be used eventually to establish
the Union's majority status When Lopez' memory as to the dates of sign-
ing faltered, the Union's attorney recommended that Goodman offer all
the cards into evidence for the limited purpose set forth above, which
Goodman did. Notwithstanding the fact that the General Counsel no
longer maintained that Papandrew and Holmgren were part of the appro-
priate unit, nor that their signed authorization cards should count to-
wards the Union's majority, their cards were mcluded in the 31 cards of-
fered in evidence by the General Counsel. Goodman testified, however,
that this had been done inadvertently, that when the suggestion was
made to him by the Union's attorney he had forgotten that Papandrew
and Holmgren's cards were included in the pack.
92 Bernstein testified that his failure to seek a reason for the General
Counsel's withdrawal of the complaint allegations regarding Papandrew
and Holmgren and his failure to object to the introduction of their au-
thorization cards into evidence was due to his total concentration being
focused on the many substantial issues that remained unresolved in the
case, since any issues concerning these employees had presumably been
-resolved with such withdrawal.
MULTIMATIC PRODUCTS

1341
provide any details, but he could assure me that there
was no impropriety, there was nothing wrong, there was
nothing to it."
Goodman testified that about 5 September 1978, "I
really don't recall being read a letter. But, I recall con-
versations about this topic, but I don't recall being read a
letter and then being told that if I gave assurances it
would not be sent or anything to that affect. It may very
well have happened, but I don't recall." Goodman also
testified:
But, in the context of what my instructions were
and the context of the events going on at the time,
if [Bernstein] had asked me that question, which
[Bernstein] probably did, my response was probably
the latter of the two, which is there is nothing relat-
ing to the merits of the case which you should be
aware as opposed to me assuring you there were no
improprieties whatever on the part of the Union's
conduct.
Counsel for the General Counsel asserts in his brief
that "there is considerable doubt whether any conversa-
tion took place on September 5 between Goodman and
Respondent's counsel. . . Even if such a conversation
did take place on September 5, there is considerable
doubt as to what was said, particularly in view of the
different versions of this conversation advanced by Re-
spondent's counsel." I do not agree. Although there is
some doubt in my mind as to what Goodman's response
to Bernstein's proposition regarding "assurances" was,
there is no doubt that such a conversation did take place
between Bernstein and Goodman. Goodman all but ad-
mitted that it did. Whichever version of Goodman's re-
sponse to Bernstein is accepted, under the unusual cir-
cumstances of what occurred, however, it is my belief
that the Region should now have disclosed the allegation
of the Union's misconduct to the Respondent, Section
102.118(a) of the Board's Rules and Regulations and
"hindsight" notwithstanding, or in the alternative sought
permission from the General Counsel to do so. 93 This
would have been the fair and proper course of action by
the Region.
I am fully aware that existing Board law and policy
normally prohibits the disclosure of such information or
material. However, under the special circumstances
present in this case, disclosure should have been made. I
perceive this as analogous to what is intended under Sec-
tion 102.118(b)(1) of the Board's Rules and Regulations.
Pursuant to that section, after a witness called by the
General Counsel testifies, any statement of that witness
in the possession of the General Counsel and relating to
the subject matter of the witness' testimony must be pro-
duced on request and given to a respondent for purposes
of cross-examination. This is only fair and reasonable
under due process considerations. In analogy, when
Goodman allowed the authorization cards of Papandrew
and Holmgren to be received in evidence knowing that
there was a question whether they were bona fide and
reliable for the purpose offered, although done inadvert-
93 Sec. 102.118(aX1) of the Board's Rules and Regulations.
ently and unintentionally, on Bernstein's request for in-
formation about this because of his suspicion of union
misconduct in connection with these cards, the Region
should have either investigated more fully or sought per-
mission from the General Counsel to disclose what infor-
mation it had on this or actually directly advised the Re-
spondent that such a problem existed. 94 The result of
Goodman's statement to Bernstein could only have re-
suited in misleading the Respondent despite being done
unintentionally and without unlawful considerations.
The Respondent seeks a finding that the above occur-
rences indicate a deliberate "coverup" of the Union's
misconduct by the Region and constituted improper con-
duct by Regional Office personnel. This is a most serious
charge, as the Board recognized in remanding the case to
me and reopening the hearing for a second time. The
burden of proving such a serious allegation by the Re-
spondent, rests with the Respondent, and it is a substan-
tial burden indeed. Under the facts present in this case, I
fmd and conclude that the Respondent has not sustained
that burden of proof.
The evidence shows that at this stage of his legal
career Goodman was an inexperienced trial attorney, this
matter being his first unfair labor practice trial for the
Board. The evidence also supports Goodman's assertion
that the introduction into evidence of Papandrew and
Holmgren's authorization cards was unintentional,"
Moreover, Goodman had been instructed by Regional
Director Kaynard not to disclose to Bernstein any infor-
mation in the case file concerning Papandrew and Holm-
gren because the Region had decided to withdraw the al-
legations in the complaint and dismiss the charges filed
regarding them. 96 Additionally, Goodman testified that
because the allegations in the complaint concerning Pa-
pandrew and Holmgren had been withdrawn, and the
Region maintained that their cards were not to be count-
ed towards determining the Union's majority status,
having stipulated to the exclusion of Papandrew and
Holmgren from the appropriate unit, the circumstances
concerning these employees "were not relevant to the
other issues once the charges were dropped. . . . In the
sense that they no longer related to any material aspect
94 It should be remembered that the Region, while investigating Holm-
gren's allegation of union misconduct in initiating the backdating of Pa-
pandrew's and Holmgren's cards, questioned the Union about this allega-
tion.
95 The circumstances surrounding the introduction of the signed au-
thorization cards of Papandrew and Holmgren into evidence and the cor-
roborative testimony of the Union's former attorney, Sanford Pollack,
fully support this. Even assuming, arguendo, that since Goodman never
sought thereafter to withdraw these cards at the initial stage of the hear-
ing he had an ulterior motive for not doing so, the more reasonable ex-
planation would suggeat, if anything, that he was seeking to Cover up his
own trial error rather than any union misconduct. Although the Re-
spondent Infers that the Region's motive in the alleged cover up of the
Union's misconduct was to protect and preserve the strength of its case,
there is no red evidence in the record to show that the Region, Kaynard,
or Goodman acted in any fashion to warrant a hehef that their actions
stemmed from a desire to "obtain a conviction at any cost"
96 I find no evidence in the record sufficient to sustain a finding that
Kaynard's actions were motivated by a desire to coverup the Union's
misconduct. It appears that this was a judgment call on Kaynard's part,
based on the then evidence in the file, and the merits of the case as he
perceived it, and also in compliance with Sec. 102.118(a)(1) of the
Board's Rules and Regulations.
1342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the case. . . . There was a question as to whether the
Union had asked someone to backdate cards, yes, but to
say that because there were other cards, that is relevant,
is not my understanding.. . ."97
Although I do not agree with the Region's handling of
this matter, I cannot find from the evidence present in
the record that Regional Office personnel engaged in any
improper conduct.
After the close of the initial hearing on 28 September
1978, Bernstein, still "bothered" by the "question of Pa-
. pandrew and Holmgren," asked the Respondent's owners
to contact these employees, which was done, resulting in
Holmgren's revelation that he and Papandrew had back-
dated their authorization cards at the Union's request and
with the promise of backpay. After securing written
statements from Holmgren and another employee who
had alleged he backdated his card, Albert Giammarinaro,
Bernstein met with Kaynard, Regional Attorney Rich-
man, and Goodman at the Region's office in late October
1978, with Bernstein apprising Kaynard of what he had
learned. Bernstein now requested that the Region initiate
its own investigation into what the Respondent termed
"inconsistencies and fabrications" by the Union in this
matter, or that the Region join with the Respondent in a
motion to reopen the hearing on the basis of newly dis-
covered evidence. Shortly thereafter, ICaynard advised
Bernstein that the Respondent would have to move on
its own to reopen the hearing, which Bernstein did on 2
November 1978.
The first reopened hearing commenced on 11 Decem-
ber 1978 with Papandrew, Holmgren, and Giammarinaro
testifying as to the backdating of their cards at the
Union's request. Thereafter, but sometime before 3 Janu-
ary 1979, Bernstein met again with Kaynard and Good-
man at the Region's office and urged Kaynard to with-
draw the complaint or reinvestigate the case in view of
the testimony of the Respondent's witnesses. Kaynard re-
quested that Bernstein summarize the Respondent's posi-
tion in writing. Bernstein objected to this as "tipping his
hand," but agreed to do so if the Region would reveal to
him what was contained in the case file that, "in effect,
comes within the meaning of Section 10380 [of the Case
Handling Manual].. . ." Bernstein alleged in his testimo-
ny that such an assurance was given by Kaynard.
By letter dated 3 January 1979, Bernstein "outlined
certain portions of the testimony [the Respondent] intend
to adduce. . . based upon [Kaynard's] assurance that the
Region will disclose whatever information it has which
conflicts with the testimony adduced to date." Kaynard
then assigned Goodman to prepare an analysis of the evi-
dence already in the record, the Respondent's conten-
tions and allegations concerning the Union's instances of
"fraud and deception," and additional evidence the Re-
spondent would submit at the hearing to support its alle-
gations, which Bernstein had set forth in his January 3
letter. Kaynard decided after reviewing all this material
that since the case was "presently in hearing before an
Administrative Law Judge, I believe the better course is
97 This was Goodman's analysis of what was relevant and while it may
be challenged for astuteness, in no way constitutes impropriety or sug-
gests a coverup of misconduct.
for all testimony to be given in open hearing, subject to
cross-examination by Counsel and any question the Ad-
ministrative Law Judge may choose to ask." Bernstein
was notified of the Region's position by letter dated 25
January 1979. By letter dated 26 January 1979, Bernstein
reminded Kaynard of his alleged "prior assurance . . .
that the Region will disclose whatever information it has
which conflicts with the testimony adduced to date,"
that such information had not been forthcoming and as
Goodman had indicated to him that the Region was not
permitted to turn over copies of affidavits of individuals
who had not testified as yet at the hearing, the Region
nonetheless was not precluded from "advising me of any
conflicts" in such affidavits that "conflicts with the testi-
mony adduced to date." By letter dated 2 February 1979,
Kaynard denied that he had ever assured Bernstein that
"the Region would disclose whatever information it has
which conflicts with the testimony adduced to date," but
offered the Region's assistance in the case "subject to the
limitations of the Rules and Regulations of the Board,
particularly Section' 102.118."
The Respondent implies that the Region's failure to
disclose "whatever information it has which conflicts
with the testimony adduced to date" was part and parcel
of its misconduct in the "knowing suppression of the
Union's fraud." I do not agree. As found above, the Re-
spondent has not sustained its heavy burden of establish-
ing that Regional personnel knowingly suppressed evi-
dence of the Union's fraudulent actions. Moreover, the
Respondent's contention that it was entitled to disclosure
of any exculpatory evidence in the Region's file, evi-
dence that "conflict's" with testimony given at the hear-
ing, is invalid. The Respondent's contention is contrary
to Board and court decisions that clearly hold that the
General Counsel has no duty to come forward with in-
consistencies or exculpatory evidence. Thus, in North
American Rockwell Corp. v. NLRB, 389 F.2d 866, 873
(10th Cir. 1969), the Tenth Circuit was confronted with
a contention that the "exculpatory evidence" rule in
criminal proceedings98 operated to taint the Board's pro-
ceedings. In rejecting that contention, the court said:
"Brady did not declare that a prosecutor must on
demand comb his file for" bits and pieces of evidence
which conceivably could be favorable to the defense."99
A similar result was reached by the Board in Magic
Pan, Inc., 242 NLRB 840 (1979), a case in which the ad-
ministrative law judge concluded that an employer's
effort to obtain exculpatory material was tantamount to
an attempt to procure prehearing discovery. As a matter
of Board law, it is clear that the Brady rule does not
apply to Board proceedings. 100 In this regard, in Erie
County Plastics Corp., 207 NLRB 564 (1973), the Board
without comment, adopted an administrative law judge's
98 Brady v. Maryland, 373 U S. 83 (1963).
99 See also Kayser-Roth Hosiery Co. v. NLRB, 447 F.2d 396, 399 (6th
Cir. 1971).
00 See also Nueva Engineering, 269 NLRB 999 (1985); NLRB v. Inter-
boro Contractors, 432 F.2d 854 (2d Cir. 1970); NLRB v. Clement-Blythe
Cos., 415 F.2d 78 (4th dr. 1969); Texas Industries v. NLRB, 336 F.2d 128
(5th Or. 1964).
NIULTIMATIC PRODUCTS 1343
conclusion that the Brady rule does not apply to Board
proceedings.
Additionally, the Respondent's claim for a broad ex-
culpatory rule should be rejected for policy reasons as
well. Concerning this, it should be noted that it is not
unusual for Regional Office files to contain inconsisten-
cies among the various affidavits it has procured in a
case. To adopt the Respondent's view that all exculpato-
ry and conflicting evidence be produced would be tanta-
mount to imposing a requirement that the Regional
Office files be discoverable in virtually all cases. This
would be contrary to the Board's well-considered policy,
upheld by the courts, against discovery in Board pro-
ceedings.
Moreover, as stated above, the Respondent's reliance
on Section 10380 of the Casehandling Manual is mis-
placed in this case. The Casehandling Manual imposes no
affirmative duty on the General Counsel to disclose ex-
culpatory information contained in the Board's files. The
Board has consistently held that the Casehandling
Manual confers no legal rights and therefore the Re-
spondent could not have been legally prejudiced regard-
less of the purported noncompliance.101
The Respondent also seeks a mistrial or dismissal of
the complaint on the grounds that:
Respondent has been severely prejudiced by the
failure of the government to disclose evidence of
this nature at a trial when the government at the
time was aware of it, evidence which had a direct
bearing on many of the events and allegations here
in question, evidence which ties in directly with the
credibility of the essential witnesses, evidence
which, had it been made public at the time it was
discovered, may well have changed the course of
the proceeding.
The Respondent maintains that it was materially preju-
diced by the Region's nondisclosure.
The courts of appeals and the Board have adopted a
firm stance concerning the obligations of the General
Counsel at hearings to protect the legitimate interests of
all parties. In NLRB v. Selwyn Shoe Mfg. Corp., 428 F.2d
217, 224-225 (8th Cir. 1970), the court stated:
The findings of the Board are of course conclu-
sive when supported by substantial evidence, but
this "presupposes a full compliance by the Board
with the fundamental requisites of a fair hearing. A
party to an administrative proceeding has the right
to prove facts showing that the procedure followed
renders the order of the administrative agency
void." Guppies Company Manufacturers v. N.L.R.B.,
103 F.2d 953, 956 (8th Cit. 1939). See Ohio Bell Tel.
Co. v. Public Utilities Comm. of Ohio, 301 U.S. 292,
304-305, 57 S.Ct. 724, 81 L.Ed. 1093 (1937); Morgan
v. United States, 304 U.S. 1, 14-15, 58 S.Ct. 773, 82
L.Ed. 1129 (1938). We are fully cognizant that not
all departures from proper procedures justify a re-
viewing court in setting aside administrative deci-
101 Aeroglastics. Inc., supra; B. C. Hawk Chevrolet, supra; West Side
Manor Nursing Home, supra.
sions—that material prejudice to the interest of the
complaining litigant must clearly appear. N.L.R.B.
v. Ford Motor Co., 114 F.2d 905, 909 (6th Cir.
1940), cert. denied 312 U.S. 689, 61 S.Ct. 621, 85
L.Ed. 1126 (1941).
In Selwyn Shoe, the court, at 224, held in effect that
whether the General Counsel's treatment of evidence in
possession warrants dismissal of the complaint, "depends
on whether prejudice has resulted to such an extent as to
vitiate the entire proceedings?'
Additionally, in NLRB v. Lee Office Equipment, 572
EU 704 (9th Cir. 1978), the court, quoting from NLRB
v. Fishermen's Union, 374 F.2d 974, 981 (9th Cir. 1967),
cert. denied 389 U.S. 913 (1967), stated:
[A] court, on review, of an administrative determi-
nation, should take due account of the rule of preju-
dicial error. Procedural irregularities are not per se
prejudicial; each case must be determined on its in-
dividual facts and, if errors are deemed to be minor
and insubstantial, the administrative order should be
enforced notwithstanding. Moreover, "the burden of
showing that prejudice has resulted" is on the party
claiming injury from erroneous ruling. [Emphasis
added,] 1 ° 2
So long as the Respondent in the instant case "had a full
and fair hearing with ample opportunity to cross-examine
[and that] no showing is made of denial of subpoena
power to compel `attendance of witness[es], the Respond-
ent must accept the inference of "no prejudice" absent
an affirmative showing to the contrary.1°3
Furthermore, it seems clear from the facts and circum-
stances in this case that any argument the Respondent's
attorney might make that his preparation for trial was
prejudiced by the General Counsel's alleged misconduct
is mooted by the granting of the Respondent's motion to
reopen and the subsequent first reopened hearing. It
should be remembered that at the initial hearing the
General Counsel called approximately 19 witnesses and
the Respondent's counsel engaged in vigorous cross-ex-
amination of these witnesses, particularly with respect to
the circumstances surrounding the signing and the dates
of their authorization cards.' " Moreover, the Region
produced sworn statements or signed questionnaires for
almost all of these Witnesses prior to cross-examination
by the Respondent's counsel.'" During the first re-
opened hearing, which took place approximately 3 or 4
months after the close of the initial hearing, the Re-
spondent recalled five of the General Counsel's witnesses
who had testified previously at the initial hearing and
102 CC Hopkins v. U S., 414 F 2d 464 (9th Cir. 1969).
1" NLRB v. Lee Office Equipment, supra at 708; also see Electrome
Design & Dev. Co. v. NLRB, 409 F.2d 631 (9th Cir. 1969),
104 See, for instance, the cross-examination of Hector Lopez, Ran-
dolph Woods, Luz Fuentes, Steven Ezegelian, Maria Bolta-Vazquez, Lil-
lian Cruz, Armando Ponce, Dominick Lauriano, and Hector Lopera.
105 Affidavits or questionnaires were provided to the Respondent prior
to cross-examination for witnesses Alex Musachio, Hector Lopez, Kipnes,
Darcy, Walker, Donnelly, Diaz, Hector Lopera, Woods, Fuentes, Bon-
fante, Ponce, and Lauriano. Statements were not provided for Ezegelian,
Amando Lopera, Bolta-Vazquez, and Cruz..
1344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
questioned them extensively with respect to the signed
authorization cards.'" The Respondent also called wit-
nesses who had not previously testified, including a
handwriting expert. Although not calling any witnesses
on behalf of the General Counsel, Goodman subpoenaed
all witnesses requested by the Respondent.
Additionally, it should be remembered that Bernstein,
the Respondent's counsel, even prior to the opening of
the initial hearing, suspected that the cards of Papandrew
and Holmgren may have been backdated. This strong
suspicion never left him despite the Region's failure to
disclose Holmgren's recantation about his and Papan-
drew's cards and the fact that Goodman had introduced
their cards, among others, for a limited purpose into evi-
dence. Notwithstanding "judgment calls" or "hindsight,"
it might be argued that Bernstein should have at least ex-
plored his suspicions during the recess in the initial hear-
ing in order to protect his client's interests without reli-
ance on any statements made by Goodman. It took his
clients only a few days to discover Holmgren's allegation
of union misconduct immediately after the close of the
initial hearing. Be that as it may, I accept his explanation
as to the reason he failed to do so earlier as I accepted
Goodman's assertion that his inclusion of the cards of
Papandrew and Holmgren, among those offered into evi-
dence, was inadvertent. It is not unreasonable to believe
that during the "heat of trial," especially involving a case
containing many issues, some of which are complex, trial
counsel will momentarily forget something while con-
centrating on other issues or problems of strategy, and
their next move or action in the case.
It should also be noted that at the time this proceeding
was first reopened the Respondent was aware of what
the Region knew concerning the Union's misconduct. I
made all parties aware, at this stage of the hearing, that I
would give the Respondent broad scope in producing
evidence, such as the recall of witnesses, introduction of
new evidence, etc., and did so over the Union's consist-
ent objections. The Respondent cites the numerous occa-
sions in which witnesses claimed inability to remember,
"or more often obviously hid behind an alleged inability
to recollect," as evidence of its being prejudiced by the
Region's nondisclosure of evidence in its files. However,
I believe that these witnesses would have done the same
no matter what the circumstances, and as between the
initial hearing and the first reopened hearing only a few
months had intervened, not really long enough to justify
a failure of recall between the two hearings.
The Respondent also asserts in its brief:
The Administrative Law Judge himself long ago
recognized the original cross-examination necessari-
ly would have differed had respondent been timely
apprised of the evidence in question:
Judge Kleiman: Again, assume that this knowl-
edge has [sic] been in the Respondent's hands at the
time.
Do you [Union counsel] think that cross examina-
tion of these witnesses would have remained the
106 These witnesses included Hector Lopez, Alex Musachio, Lillian
Cruz, Maria Boha-Vazquez, and Armando Ponce
same as it were? And after a handwriting expert
had reviewed the cards.
Although I believe that the cross-examination of certain
witnesses would have differed somewhat based on the
handwriting expert's analysis, others would not have,
and the Respondent was allowed to remedy this by re-
calling witnesses at the first reopened hearing. Moreover,
my above statement was made in response to constant
objections raised by the Union's counsel, which I over-
ruled, as to the extent to which I was allowing Bernstein
to reexamine recalled witnesses and was not meant to
convey my feelings that the Respondent had been
strongly prejudiced by what had occurred.
Thus, the reopened hearing gave the Respondent the
opportunity to present any new witnesses it desired to
testify about any alleged backdating, and to reexamine
any witnesses it wanted as to the circumstances of their
card signing as well as other matters. This was sufficient
to remove any prejudice that might have resulted from
the General Counsel's alleged failure to disclose the evi-
dence of backdating at the initial hearing.
In Morrison-Knudsen Co., 213 NLRB 280, 290-291
(1974), a respondent's counsel moved to dismiss the com-
plaint on the grounds that Board procedures "don't
afford the Respondent due process," more specifically
that, "the Board does not allow respondent to read any
statements that the Board investigator may have obtained
which contain exculpatory statements." The Board held
that Section 102.118 of its Rules and Regulations did not
deprive the respondent of a fair trial. Moreover, nothing
in the Constitution or the Administrative Procedure Act
mandates that an agency grant discovery, nor are the dis-
covery provisions of the Federal Rules of Civil Proce-
dure or the Federal Rules of Criminal Procedure applica-
ble to Board proceedings." 7 Also, the discovery rules
promulgated by the Board in Section 102.118 of its Rules
and Regulations have been found to meet the require-
ments of due process and the Jencks Act.108
Even assuming, arguendo, the Respondent was to
make out a prima facie case of misconduct by counsel
for the General Counsel and other Regional personnel,
that fact in and of itself does not serve to negate a find-
ing that the Respondent engaged in unfair labor practices
in violation of the Act. As the courts have stated,
"[N]either a perfect record nor 'laboratory conditions'
are prerequisites to a fair hearing. The record when
viewed as a whole, must only reflect proceedings which
are conducted in a manner 'free from bias and prejudice
and imbued with the desire to accord to the parties equal
consideration.'" 0 9
In Kawasaki Motors Corp., 257 NLRB 502 (1980,11°
the respondent excepted to the administrative law
107 NLRB v. Interboro Contractors, 432 F.2d 854 (2d Cir. 1970), cert
denied 402 U.S. 915 (1971). McClelland v. Andrus, 606 F.2d 1278 (D.C.
Or. 1979).
108 Stephens Produce Co. v. NLRB, 515 F.2d 1373 (8th Or. 1975).
109 Great Lakes Screw Corp. v. NLRB, 409 F.2d 375 (7th Cir. 1969);
NLRB v. Bryan Mfg. Co., 196 F.2d 477 (7th Cir 1952); Inland Steel Co. v.
NLRB, 109 F 2d 9 (7th Or 1940)
110 Enfd. Kawasaki Motor Corp. v. NLRB, 691 F 2d 507 (9th Cir
1982), cert. dented 459 U S. 1202 (1983).
MULTIMATIC PRODUCTS 1345
judge's refusal to grant its motion for a mistrial based on
the conduct of the General Counsel's trial attorneys
during the hearing. Specifically, respondent objected to
the use by counsels for the General Counsel of a tape re-
corder; their rifling through the respondent counsel's
papers; their knowingly offering as an exhibit a docu-
ment that was not a true copy; their failure to pay their
share of the cost of transcribing certain tapes offered into
evidence; their failure to tender witnesses' affidavits to
the respondent prior to the respondent's cross-examina-
tion; and their refusal to obtain affidavits given by two
witnesses to the Department of Labor. The Board held
that although some of the above action by counsels for
the General Counsel were injudicious there was no merit
to the respondent's exception because "none of the con-
duct of counsels for the General Counsel resulted in
prejudice to Respondent, and thus their conduct does not
warrant a mistrial."1"
From all of the above, I find and conclude that the
Respondent has failed to sustain its burden of proof in
showing that Regional personnel knowingly engaged in
any misconduct. Moreover, I also find that the Respond-
ent has not been prejudiced to the extent of warranting a
mistrial or dismissal of the complaint, by any actions
taken by Regional personnel in this proceeding.
3. Prior rulings, findings, conclusions, and
recommended Order
Acts of interference, restraint, and coercion
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act. In my initial decision I concluded that:
3. The Respondent has interfered with, re-
strained, and coerced its employees in the exercise
of their rights guaranteed in Section 7 of the Act,
and has thereby engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act by:
(a) Coercively interrogating its employees con-
cerning their union activities and sympathies.
I" See also Pope Maintenance Corp., 228 NLRB 326 (1977). By letter
dated 7 July 1983 and with notice to all parties, the Respondent request-
ed that I consider the decision in U.S. v. Hogan, 712 F.2d 757 (2d Cir.
1983), as related to the instant proceeding. I do not find that this case
supports the Respondent's position that the complaint should be dismissed
or a mistrial declared because of the Region's alleged misconduct. Al-
though I agree that counsel for the General Counsel, not unlike the as-
sistant United States attorney (AUSA), is, in substance, subject to similar
rules of conduct as set forth by the United States Court of Appeals for
the Second Circuit in Hogan, that "In short, a prosecutor as an officer of
the Court is sworn to ensure that justice is done, not simply to obtain an
mdictment," the Hogan case is inapposite otherwise. In Hogan the court
found that, "If not for the clear prejudice resulting from the AIISA's miscon-
duct appellants might not have been indicted." (Emphasis added.) Even if
one analogizes the criminal prosecution in Hogan with the mstant civil
administrative proceedmg, significant differences between the cases are
evident Importantly, the indictment that brought the Hogan case to trial
resulted from the "prosecutor's" misconduct, thus clearly establishing
prejudice, no misconduct, no mdictment, and subsequent trial. In Multi-
mane's, even assuming the Region's misconduct arguendo, the Respond-
ent's conduct in violation of the Act was still triable without warrantmg
dismissal of the complaint or a mistrial, unless the alleged misconduct re-
sulted in such prejudice to the Respondent aslo deprive it of due process
as a matter of law
(b) Threatening and warning its employees with
discharge and with plant closure if they engaged in
union activities or supported or became members of
the Union.
(c) Creating the impression that the employees'
activities on behalf of the Union were under surveil-
lance.
(d) Expressly and impliedly promising more
wage increases to its employees for the purpose of
inducing them to refrain from joining or supporting
the Union.
(e) Urging and directing its employees to allow
the Respondent to sponsor a labor organization of
its own choosing.
I have carefully reconsidered all the above conclusions
in the light of the initial evidence on which these find-
ings were predicated and the additional evidence ad-
duced at the second reopened hearing on remand, and I
affirm my fmdings and conclusions as set forth above.112
Moreover, the Respondent has failed to show how the
Union's fraud in soliciting authorization cards and its
other misconduct taints the evidence adduced through
credited employee witnesses concerning the incidents of
unlawful conduct by the Respondent in violation of Sec-
tion 8(a)(1) of the Act. As to these issues, the Respond-
ent had ample opportunity to submit evidence at the first
and second reopened hearings with knowledge of the
fraud, at which times it failed to produce any connection
between the fraud and the testimony of these witnesses.
Similarly, the conduct of the General Counsel's repre-
sentatives in the Region in no way alters such findings.
The unlawful discharges
Section 8(a)(3) of the Act prohibits an employer from
discriminating against its employees in regard to hire,
tenure, and other terms and conditions of emplyment for
the purpose of encouraging or discouraging membership
in a labor organization.
The discharges of Dominick Lauxiano and Jorge
Arias
In my initial decision in this proceeding, I found that:
In view of all the above, the knowledge of the
Respondent of Lauriano's union activities (his sign-
ing of a union authorization card), the Respondent's
virile union animus and the timing of the discharge,
I am inexorably lead to the conclusion that Latv-
ian° was discharged because he signed an authoriza-
tion card and but for this he would not have been
fired at the end of the day.
In Wright Line, 251 NLRB 1083 (1980) . . . the
Board set forth the basic criteria for "examining
causality in cases alleging unlawful discrimination."
The General Counsel must make a prima facie
showing to support the inference that the protected
I have also considered changes in Board case law affecting these
same issues since the publication of my initial decision, and find that even
in the light thereof, no disturbance of these findings is warranted. See, for
example, Rossmore House, 269 NLRB 1176 (1984) (interrogation).
1346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conduct was a "motivating factor" in the employ-
er's decision. Once this is established, the burden
shifts to the employer to demonstrate that the same
action would have taken place even in the absence
of the protected conduct.
The record, as discussed above, clearly shows
that the General Counsel has made a prima facie
showing sufficient to support the inference that the
union activity of Lauriano and Arias 2 " was a moti-
vating factor in the Respondent's decision to dis-
charge them. Also as set forth above, the Respond-
ent's defense does not stand scrutiny and the Re-
spondent has not presented persuasive evidence that
it would have discharged Lauriano and Arias for
reasons other than their protected activities or that
these discharges would have taken place even in the
absence of their having signed union authorization
cards. I therefore find that the Respondent violated
Section 8(a)(3) and (1) of the Act by discharging
Dominick Lauriano and Jorge Arias.
2" While Arias did not testify at the hearing, the circum-
stances of his discharge so parallels that of Lamm° as to strongly
suggest the applicability of the above to him. Arias started work
the same day as Lauriano; he signed an authonzation card when
Lauriano did; and right after Kipnes interrogated Lauriano about
his having signed a card, Kipnes was observed to have had a con-
versation with AVMs, although there was no testimony m the
record concerning what was said When, as here, a company inter-
rogates employees about their union activities and engages in sur-
veillance of such activities, it is not unreasonable to assume that it
obtains some information in this regard.
After reviewing the entire record in this matter, I
affirm my prior determination that Dominick Lauriano
was unlawfully discharged by the Respondent in viola-
tion of Section 8(a)(3) and (1) of the Act. I find that my
analysis and conclusions concerning his discharge is not
affected by any new evidence adduced at the second re-
opened hearing or any other finding made here, and my
reasons for finding as I did then remain to me as cogent
today as they did then. Regarding the discharge of Jorge
Arias, who failed to testify at any of the three hear-
ings," 3 the evidence of his discharge, although circum-
stantial, still gives rise to a strong inference that it was
unlawfully motivated, which transcends suspicion, and I
cannot see my way clear to reverse this fmding. I there-
fore find and conclude on the record as a whole that
Lauriano and Arias were unlawfully discharged by the
Respondent in violation of Section 8(a)(3) and (1) of the
Act.
The discharge of Maria Bolta-Vazquez
The prior decision in this matter states:
The General Counsel has made out a prima facie
showing sufficient to support the inference that the
Respondent discharged Maria Bolta Vazquez be-
"3 At the second reopened hearing, it was disclosed that Arias had
been less than cooperative with Board Agent Roudiez and had told her
that he did not wish "to get involved" in this case, although he was al-
leged to be a discrimmatee in the complaint. Arias' refusal to cooperate
in the preparation for trial should not be condoned, and consideration of
this can be assessed in the remedy portion of this supplemental decision.
cause of her union activities. The Respondent's evi-
dence does not rebut that prima facie showing nor
establish that it would have discharged Bolta even
in the absence of her union activities. I therefore
find that the Respondent violated Section 8(a)(3)
and (1) of the Act by discharging Maria Bolts Vaz-
quez because of her union activities.
A review of the record as a whole, including the addi-
tional evidence adduced at the second reopened hearing
on remand, and an affirmative finding as to the Union's
fraudulent conduct in this case, causes me to reassess the
above finding as incorrect requiring a reversal thereof.
Maria Bolta-Vazquez (Bolts) commenced her employ-
ment with the Respondent on 13 February 1978. There is
"some justification and support in the record, that Bolta
was unable to perform her work properly although the
Respondent had tried her at various types of jobs in the
plant," and she was also a "slow worker." Bolta had tes-
tified that she had signed a union authorization card on
20 February 1978 and was discharged later that same
day after her supervisor learned that she had engaged in
such union activity." 4 As I stated in my prior decision,
"There is such contradictory evidence in the record that
this date [on which she allegedly signed her card] is in
doubt." Moreover, a handwriting expert testified that the
date on Bolta's card had been changed from 28 February
to 20 February 1978. Considering the evidence here in
light of the Union's misconduct in getting employees to
backdate their authorization cards, I now find that the
probability of Bolta having signed her card on 28 Febru-
ary is substantially greater than her having signed the
card on 20 February. That being so, Bolts in actuality
had engaged in no union activity on 20 February 1978,
the day she was discharged.
I am aware that the evidence in the record shows that
the Respondent learned on 20 February 1978 that the
Union was attempting to organize its employees and that
its immediate reaction to this activity was to engage in a
pattern of unfair labor practices, which reflected strong
union animus on its part. Additionally, I assumed from
the evidence present at the time of my prior decision
that the Respondent suspected that some of its Spanish-
speaking employees had signed authorization cards and
that Bolta could be one of them." 13 In fact, the above,
plus the timing of her discharge, lead me to believe then
that Bolta's discharge had been unlawful. I now realize,
however, that the Respondent's suspicion that Bolta en-
gaged in union activity was merely that, suspicion or
conjecture, especially if Bolta had not signed an authori-
zation card until 28 February 1978, as found. Moreover,
the fact that the Respondent did not discharge other
Spanish-speaking employees that afternoon, whom it just
114 Bolta testified that Carmen Segreto was present at the time of her
discharge, but Segreto's testimony at the second reopened hearing does
not support this or Bolta's account of the discharge.
"5 Jack Kipnes testified that while he was making his "rounds" of the
plant on the afternoon of 20 February 1978, Bolta asked him, "What is a
union?" It should also be remembered that Kipnes admitted observing
union organizing activities outside the Respondent's plant on 20 February
1978
MULTIMATIC PRODUCTS 1347
as well could have suspected had also signed cards for
the Union, takes on some significance as well.
In Wright Line, 251 NLRB 1083 (1980), 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), ap-
proved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983), the Board set forth the basic criteria
for "examining causality in cases alleging unlawful dis-
crimination." The General Counsel must make a prima
facie showing to support the inference that the protected
conduct was a "motivating factor" in the employer's de-
cision. Once this is established, the burden shifts to the
employer to demonstrate that the same action would
have taken place even in the absence of the protected
conduct. Under the circumstances present in this case,
the General Counsel has failed to make out a prima facie
showing sufficient to support the inference that the Re-
spondent discharged Maria Bolta Vazquez because of her
union activities." 6 I therefore find that the Respondent
did not violate Section 8(a)(3) and (1) of the Act by dis-
charging her, and that the allegations in the complaint so
alleging should be dismissed.
The discharge of Hector Lopez
As set forth in ray prior decision:
Hector Lopez commenced his employment with
the Respondent on January 20, 1978. He signed a
union authorization card on the same day. Lopez
was discharged by the Respondent on February 20,
1978. Lopez testified that after the Union had made
its request to the Respondent for recognition and
bargaining and after the Union's president had ex-
hibited signed authorization cards the Union had
obtained from the Respondent's employees, Irving
Kipnes summarily discharged him as he stood
alongside the union representatives while this was
occurring. 2 2 3
The Respondent's witnesses testified that Lopez
was fired on Monday, February 20 the day before
the Union made its demand for recognition to the
Respondent, which actually occurred on Tuesday,
February 21, and for the reason that his production
rate was unacceptably low and his attitude toward
his work was poor and disdainful.
[T]hat Hector Lopez was discharged on Monday,
February 20, 1978 is uncontested.
222 Alex Musachio and Armando Ponce, the union officials
present when this allegedly occurred, testified similarly. -
In this supplemental decision I previously found that
the Union engaged in fraud and misconduct in soliciting
the backdating of authorization cards from employees no
longer working for the Respondent, and by knowingly
misstating the facts and submitting evidence that it knew
to be untrue, including the account of what occurred
when union officials requested recognition and bargain-
"6 The General Counsel failed to satisfactorily show that Dolts had
engaged in any union activities on 20 February 1978, the day she was
discharged, nor that the Respondent could reasonably believe, beyond
mere suspicion, that she had done so.
ing, which also encompassed Lopez' discharge. This
being, so it strongly appears, that Lopez and his fellow
union officials totally fabricated their account of his dis-
charge.
The Respondent in its brief asserts:
Clearly, the Government failed to meet its burden
of proving an unlawful discharge by a "preponder-
ance of the evidence." The facts as alleged by Gen-
eral Counsel were totally discredited by the Admin-
istrative Law Judge. The record contained no other
facts to support Lopez' account of his discharge.
Even under Wright Line, supra, it cannot be said
General Counsel has established 'a prima facie case,
or that he has repudiated the controverted account
of Lopez' discharge as related by respondent's wit-
nesses, and as confirmed in essential part by General
Counsel's own witnesses.
I agree. Therefore, I find and conclude that the Re-
spondent did not violate Section 8(a)(3) and (1) of the
Act when it discharged Hector Lopez, and that the as-
sertions in the complaint alleging such violations should
be dismissed.
The discharge of Luz Fuentes
Previously, in my initial decision, I found that Luz
Fuentes was discharged by the Respondent because of
her union activity in violation of Section 8(a)(3) and (1)
of the Act. In reconsidering this finding, especially in
light of the Union's penchant for fabricating accounts of
occurrences to suit its own purposes as found above,"7
I find the Respondent's arguments in defense of its posi-
tion that Fuentes was not unlawfully discharged some-
what persuasive. After reviewing the various inconsisten-
cies in the testimony of Fuentes, Woods," 8 Ponce, and
Yvette Padilla,'" as to what was said by whom, who
served as interpreter, who was present, and when the in-
cident occurred, I now suspect that the incident may not
have happened as stated by these witnesses. Although I
do not prescribe to the Respondent's assertion that "The
notion respondent would have terminated Fuentes, sum-
marily, arbitrarily and without even an explanation—and
in the presence of so many witnesses—simply has no plausi-
bility whatsoever," and I have not completely satisfied
my lingering doubts as to the Respondent's motives con-
cerning the discharge of Fuentes for the reasons ex-
117 The evidence shows that Fuentes was well acquainted and friendly
with Hector Lopez, a union official whose actions were found to be ques-
tionable.
ii6 It is not unusual that, based on the evidence in the record, the tes-
timony of a witness may be credited in part, while other segments thereof
are discounted or disbelieved. Although I generally believed Wood's tes-
timony as set forth in my prior demon, he may have been confused as to
this incident, registering what he had heard about employees being alleg-
edly discharged by the Respondent because of their union activities and
mistaking the employees involved
119 Padilla testified as a witness for the Respondent at the second re-
opened hearing on remand, Although Padilla testified that Fuentes had
told her that Fuentes was "laid off" by the Respondent, Padilla's testimo-
ny concerning this was unclear and equivocal as to the circumstances
surroundmg this incident.
1348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pressed in my prior ruling, 120 I am constrained to now
find that the General Counsel has not met its burden of
proving this allegation in the complaint by a preponder-
ance of the evidence. Moreover, while the General
Counsel may have established a prima facie case under
the Wright Line standard, the Respondent has sufficiently
rebutted the evidence adduced by the General Counsel
under that standard.121
In view of the above, and although not without some
doubt, 1 find and conclude that the Respondent did not
discharge Luz Fuentes in violation of Section 8(a)(3) and
(1) of the Act and that the allegations in the complaint
so asserting should be dismissed.
Steven Ezegelian
As set forth in my prior decision in this case:
Steven Ezegelian started working for the Re-
spondent in mid-November 1977. On Monday, Feb-
ruary 20, 1978, about 12:30 p.m., during lunchtime,
he signed a union authorization card. According to
the credited testimony of Ezegelian, sometime
during the early afternoon of that day Jack Kipnes
asked him if he had joined the Union. Ezegelian
denied having done so but admitted having "asked
for information" from the union representatives.
Soon thereafter Ezegelian "heard" that Eileen
Darcy and Patricia Walker had been fired for join-
ing the Union and when he next saw Kipnes in the
plant that day he quit his employment with the Re-
spondent, telling Kipnes that he "didn't want to
work in a shop that would fire employees for join-
ing a union." Ezegelian also testified that although
"nobody on behalf of management" ever told him
that he would be discharged for signing an authori-
zation card he did actually quit his job because he
was afraid that he would be fired when it was
learned that he signed the card.
Relying on Masdon Industries, 212 NLRB 505 (1974), I
concluded that Steven Ezegelian was constructively dis-
charged on 20 February, 1978. On review of this finding,
I conclude that I was in error and would be remiss not
to remedy that mistake.
As set forth in Corn General Corp., 251 NLRB 653,
657-658 (1980):
A constructive discharge is not a discharge at all
but a quit which the Board treats as a discharge be-
cause of the circumstances which surround it. Such
situations may arise when an employer confronts an
120 The Respondent was aware on 20 February 1978 that the Union
was organizing Its employees, the Respondent did not want the Union to
represent its employees and demonstrated its union animosity by engag-
ing in unfair labor practices commencing that day; and the Respondent
had good reason to suspect that Fuentes was a union sympathizer.
121 I also predicated my prior determination regarding Fuentes on the
fact that the Respondent had included Fuentes name in a list, sent to the
Board, of employees discharged dunng January and February 1978,
though the Respondent neither claimed to have discharged her nor had
reason to believe she quit In an affidavit annexed to this list, owner
Irving Kipnes had explained that if the employee's work record was
good, he treated a failure to appear as a "quit," and if the employee's
record was poor, he treated the "walkaway" as a "discharge."
employee with the Hobson's choice of either con-
tinuing to work or foregoing rights protected by the
Act. In such instances, the confrontation must be
clear and unequivocal and the employees' predica-
ment not one which is left to inference or guess
work on his part. Masdon Industries, Inc., 212
NLRB 505 (1974); Marquis Elevator Company, Inc.,
217 NLRB 461 (1975); Superior Sprinkler, Inc., 227
NLRB 204 (1976). A constructive discharge may
also occur when an employer harasses a union ad-
herent to the point where his job situation becomes
intolerable and he is forced to quit. Thurner Heat
Treating Corporation, 226 NLRB 716 (1976); Hoerner
Waldorf Corporation, 227 NLRB 612 (1976); North
Valley Lumber Saks, Inc., 229 NLRB 1209 (1977);
John Dory Boat Works, Inc., 229 NLRB 844 (1977).
Moreover, in Valley West Welding Co., 265 NLRB 1597
(1982), the Board held:
In Crystal Princeton Refining Company, 222
NLRB 1068 (1976), the Board set forth elements re-
quired to show a constructive discharge. The Board
stated:
There are two elements which must be proven to
establish a "constructive discharge." First, the bur-
dens imposed upon the employee must cause, and
be intended to cause, a change in working condi-
tions so difficult or unpleasant as to force him to
resign. Second, it must be shown that those burdens
were imposed because of the employee's union ac-
tivities.
. . . .
. . . the Board has long held that an employee who
quits in protest against unfair labor practices is not
deemed to have been constructively discharged.
Ezegelian was not told to forgo union activity or to
leave the plant, nor was he harassed on the job by the
Respondent. Ezegelian quit because he was protesting
the alleged discharges of fellow employees Darcy and
Walker because they joined the Union (an unfair labor
practice, if true). Ezegelian also quit because he felt that
if he did not quit he would be fired for the reason that
he signed a union authorization card. Ezegelian's conclu-
sion was wholly speculative on his part. He was never
told he would be fired for signing an authorization card.
His quitting in anticipation of the mere possibility that he
might be discharged does not constitute a constructive
discharge.
In view of the above, I find and conclude that Steven
Ezegelian was not constructively discharged on 20 Feb-
ruary 1978, but voluntarily quit his employment with the
Respondpit. 12 2
Eileen Darcy
In my prior decision I found:
152 Also see Price's Pic-Pac Supermarkets, 256 NLRB 742 (1981); Town
& Country Family Center, 219 NLRB 1098 (1975)
MULT1MATIC PRODUCTS 1349
Since the causation test set forth by the Board in
Wright Line236 would be applicable to the situation
concerning Darcy, I conclude from all the above
that the General Counsel has made out a prima
facie showing sufficient to support the inference
that the Respondent failed and refused to reinstate
Eileen Darcy in a timely and prompt manner be-
cause of her union activity. The Respondent has not
rebutted that prima facie showing. I therefore find
that the Respondent violated Section 8(a)(3) and (1)
of the Act by failing and refusing to reinstate Eileen
Darcy timely and promptly because of her union
activity.
236 Wright Line, supra.
On reviewing the total record, I reaffirm this ruling.
The refusal to bargain
Section 8(a)(5) of the Act prohibits an employer from
refusing to bargain collectivelywith the representatives
of its employees. In my prior decision in this proceeding,
I held that:
From all of the above, I find and conclude that by
refusing to recognize and bargain with the Union
on request and engaging in the unfair labor prac-
tices found, the Respondent violated Section 8(aX5)
and (1) of the Act, and that a bargaining order is
necessary and appropriate to protect the majority
sentiment expressed through authorization cards and
to otherwise remedy the violations committed.
In its Order Remanding Proceeding, the Board directed
me to review my prior rulings made in my original deci-
sion, in light of the evidence adduced at the initial and
first reopened hearings, and any additional evidence sub-
mitted at the second reopened hearing on remand.
The appropriate bargaining unit
Undisputedly, and as found previously, the unit appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act consists of all
production and maintenance employees employed by the
Respondent at its Plainview plant, exclusive of all cleri-
cal employees, guards, and supervisors as defined in Sec-
tion 2(11) of the Act.
The Union's majority status
As set forth in detail in my prior decision the parties
stipulated to the inclusion of 33 employees in the appro-
priate unit." 3 In its initial brief the Respondent agreed
to the inclusion of two more employees (Eileen Darcy
and Luz Fuentes). I also excluded various employees
from the unit for reasons set forth above that are still
valid today. 124 Moreover, in my previous decision I
found that
123 See JD-(SF)-21-81.
124 Hector Lopez, Armando Ponce, Esther Lopez, Mercedes Living-
ston, Roger Wdhams, and Howard Kipnas,
[Flour other employees are includable in the unit
(Dominick Lauriano, Jorge Arias, Maria Bolta Vaz-
quez, and Steven Ezegelian). Therefore as of Febru-
ary 21, 1978, the date on which the Union requested
recognition and bargaining, there was a total of 39
employees in the appropriate bargaining unit de-
scribed above.259
259 This would also be true as of February 20, the date the Re-
spondent commenced its unfair labor practices.
As previously set forth in this supplemental decision,
however, Maria Bolta-Vazquez was lawfully discharged
by the Respondent on 20 February 1978 and Steven Eze-
gelian voluntarily quit his employment on that same day.
Therefore, the total number of employees in the appro-
priate unit on 21 February 1978 when the Union made
its demand for recognition and bargaining was 37, not
39.
Moreover, in my prior decision I found that, "Applica-
ble thereto, the General Counsel offered 20 signed union
authorization cards which I credited to support the
Union's claim of majority status." Since Bolta-Vazquez
and Ezegelian were no longer employees includable in
the appropriate unit as of 21 February 1978, however,
the total number of credited authorization cards as of
that date would be 18, one short of a majority." 5 Ac-
cordingly, I find that on the day the Union made its
demand for recognition and bargaining, it did not repre-
sent a majority of the Respondent's employees in the ap-
propriate unit.
The General Counsel's brief asserts:
The Board has held that a bargaining order may
be imposed commencing from the date the respond-
ent commenced its unfair labor practices to under-
mine the union's majority status. Trading Port, Inc.,
219 NLRB 298 (1975). Even if the union never
makes a demand for recognition, the appropriate
remedy for pervasive Section 8(a)(1) and (3) viola-
tions is to order respondent to bargain with the
union as of the date of the commencement of unfair
labor practices. Beasley Energy, Inc., 228 NLRB 93
(1977); Hombre Hombre Enterprises, Inc., 228 NLRB
136 (1977).
In the case at bar, it is clear that the Union en-
joyed majority support among 20 of the 39 unit em-
ployees as of February 20, the date the Respondent
commenced its unfair labor practices, because Eze-
gelian continued to work for the Respondent until
late in the afternoon on that date. Thus, even if the
Administrative Law Judge concludes, as Respond-
ent requests, that Ezegelian's card cannot be count-
ed for majority purposes as of February 21, the date
of the Union's recognition demand, Ezegelian's card
225 I am aware that the Respondent agreed in its initial brief to the
inclusion of Luz Fuentes in the appropriate unit as of 21 February 1978.
However, in view of my finding in this supplemental decision that
Fuentes had left her employment prior to that date, her signed authoriza-
tion card would not be counted towards establishing the Union's alleged
majority status and the number of applicable cards for that purpose
would be reduced to 17.
1350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
should be counted as evidence of majority support
as of February 20. Since this was the date on which
Respondent embarked on its unfair labor practice
campaign, a remedial bargaining order should be
imposed as of that date.
I do not agree.
Although the principles of law enunciated by the Gen-
eral Counsel are valid, the fact remains that on 20 Febru-
ary 1978, when the Respondent commenced its unfair
labor practices, the Union had not attained the status of
majority representation. Adding Ezegelian and Bolta-
Vazquez to the list of employees in the appropriate unit
on 20 February 1978, would raise the number to 39.
Even counting Ezegelian's card, the Union would still
fall short of a majority, 19 of 39, since Bolta-Vazquez did
not sign her card until 28 February 1978, days after her
lawful discharge took place as found here. Moreover,
consideration of the status of Luz Fuentes would reduce
the number of valid signed cards further.
Accordingly, I find and conclude that the Union did
not represent a majority of the Respondent's employees
in the appropriate unit either on 21 February 1978 when'
it made its demand for recognition and bargaining, or on
20 February 1978 when the Respondent first engaged in
unfair labor practices in this case.126
The applicability of a bargaining order
In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969),
the Supreme Court approved the Board's use of bargain-
ing orders to remedy an employer's independent 8(a)(1)
and (3) violations which undermine a union's ability to
achieve majority status and fatally impede the holding of
is fair election. In doing so, the Court held that such
orders would be permissible, notwithstanding its ac-
knowledged preference for an election, in two instances.
The first involves unfair labor practices which are so
"outrageous and pervasive" that traditional remedies
cannot eliminate their coercive effect, with the result
that a fair election is rendered impossible (Gissel I cases).
The second category (Gissel II cases), as described by
the Court at 614-615, involves, "less extraordinary cases
marked by less pervasive practices which nonetheless
128 The Respondent maintains that by reason of the Union's miscon-
duct regarding the authorization cards of Papandrew, Holmgren, and
Giammannaro and in view of its handwriting expert's testimony concern-
ing other authorization cards, i e., different handwriting on cards indicat-
ing the cards had been filled out by more than one person, misdating or
date changes on cards, etc., there arises a strong inference that other au-
thorization cards should also be invalidated However, the Board has
held that because dates and signatures display different handwriting with-
out more this is insufficient to Overcome the presumption that the author-
ization cards were signed on the date appearing on them. "It is not un-
common for employees to sign cards which have been dated by another
person, often the card solicitor." Zero Corp., 262 NLRB 495 (1982); Gor-
donsville Industries, 252 NLRB 563 (1980); Kroehler Mfg Co., 243 NLRB
172 (1979). Moreover, the Board has also held that, "Although three of
the authorization cards introduced into evidence may have been signed
on dates different from those indicated on the cards, there is no evidence
that these cards had been purposely misdated. In any event, the misdating
of cards does not affect their validity as a showing of union support."
Axton Candy Tobacco Co., 241 NLRB 1034 fn. 4 (1979); Ultra-Sonic De-
Burring Inc., 233 NLRB 1060 (1977). Also see Mandel Management Co.,
245 NLRB 273 (1979), Murcel Mfg. Corp., 231 NLRB 623 (1977); Tilton
Tanning Corp., 164 NLRB 1168 (1967).
still have a tendency to undermine majority strength and
impede the election process." In the latter instances, it
must be demonstrated that the Union had attained major-
ity status.
As previously determined in this supplemental deci-
sion, on reconsideration of all the evidence in this pro-
ceeding, the Union failed to establish that it had achieved
majority status among the Respondent's employees in the
appropriate unit and is therefore not entitled to a bar-
gaining order under "Gissel cate,gory case consider-
ations. Moreover, I do not find that a bargaining order is
warranted here under the "Gissel I" category of cases in-
volving "outrageous and pervasive" unfair labor prac-
tices committed by an employer.
In Gourmet Foods, 270 NLRB 578, 583 (1985), the
Board held:
We view the principle [majority rule] as a direct
limitation on the Board's existing statutory remedial
authority as well as a policy that would render im-
proper exercise of any remedial authority to grant
nonmajority bargaining orders which the Board
might possess. . . . Accordingly, we overrule those
cases in which the Board has found that it has statu-
tory remedial authority to issue nonmajority bar-
gaining orders and in which the Board has exer-
cised that authority.127
Moreover, the courts have held that "employee turn-
over and lapse of time may. . . become major factors in
close cases" in determining the applicability of a bargain-
ing order. 122 In the instant case the lengthy lapse of time
since the occurrence of the incidents involved, and the
strong possibility of a significant employee turnover as
indicated by the record evidence, demonstrates that these
have become major factors in considering a denial of a
bargaining order in this case. Although the unfair labor
practices of the Employer are serious, yet, I am not con-
vinced that the Board's traditional remedies to correct
and eliminate the coercive effects of such conduct in im-
peding the election process are insufficient to render a
fair election possible. 12 9
Furthermore, concerning the Union's acts of miscon-
duct in this case, the discussion of the "clean hands"
doctrine by Administrative Law Judge Richard D. Ta-
plitz in Marine's Memorial Club, 261 NLRB 1357 (1982),
is worth citing as relevant here:
First, consideration will be given to the question
of the abuse of the Board's process by a charging
party in an unfair labor practices proceeding. In
1V.L.R.B. v. Indiana & Michigan Electric Company,
et al., 318 U.S. 9 (1943), the United States Supreme
127 Conair Corp., 261 NLRB 1189 (1982), United Dairy Farmers Coop-
erative Assn., 242 NLRB 1026 (1979), enfd as modified 633 F 2d 1054 (3d
Cir. 1979).
128 Jamaica Towing Co. v. NLRB, 236 NLRB 1700 (1979), enfd. 632
F.2d 208 (2d Cir. 1980), Red Oaks Nursing Home v NLRB, 633 F.2d 503
(7th Cir. 1980). Also see Sr Francis Federation of Nurses v NLRB, 729
F.2d 844 .(1) C. Cir. 1984).
128 NLRB v. Gissel Packing Co. supra Also see NLRB v. J. Coty Mes-
senger Service, 119 LRRM 2779 (1985).
MULTIMA'FIC PRODUCTS 1351
Court held that misconduct by a charging party did
not deprive the Board of jurisdiction but that the
Board need not move on every charge and could
decline to be imposed upon or to submit its process
to abuse. Where the misconduct of the charging
party taints the reliability of evidence which is nec-
essary for the finding of the violation, then the com-
plaint must be dismissed. Thus, in Hollywood Ranch
Market, 93 NLRB 1147 (1951), the Board refused to
be imposed upon where a token hiring and firing of
an employee for the purpose of access to the Board
did not give rise to a bona fide employer-employee
relationship. However, the general rule is set forth
in [LB. T.j, Local 294 (Island Dock Lumber, Inc.),
145 NLRB 484, 492, enfd. 342 F.2d 18 (2d Cir.
1965),25 where the Board held:
The "clean hands" doctrine of equity does not
operate against a charging party since proceed-
ings such as this are not for the vindication of
private rights but are brought in the public inter-
est and to effectuate statutory policy. N.L.R.B. v.
Plumbers Union of Nassau County, Local 475, etc.,
299 F.2d 497, 2; 1V.L.R.B. v. Springfield Building
and Construction Trades Council, 262 F.2d 494
(C.A. 1).
In unfair labor practice cases, the charge simply ini-
tiates an investigation by the General Counsel. Any
litigation is keyed to the allegations of a complaint
that is issued by the General Counsel. In issuing a
complaint the General Counsel is acting as a public
official and is attempting to effectuate statutory
policy in the public interest. The fact that a matter
was brought to the attention of the General Counsel
for investigation by someone (a charging party)
who is not worthy of equitable relief can not be al-
lowed to impair the General Counsel's legitimate
function where the General Counsel has engaged in
no wrongdoing. However, in appropriate cases, the
Board can and does tailor its remedies to prevent
wrongdoers from reaping benefits to which they are
not fairly entitled. Thus, the Board has refused to
order an employer to bargain with a union where
the union resorted to violence rather than peaceful
legal process to pursue its aims. Laura Modes Com-
pany, 144 NLRB 1592 (1963). Thus the complaint is
not subject to attack but equitable considerations
must be weighed with regard to the remedy. Service
Garage, Inc., 256 NLRB 931 (1981).
25 See also Plumbers Local 457 (Bomat Plumbing and Heating),
131 NLRB 1243, enfd. 299 F.2d 497 (2d Cir. 1962); Hotel. MoteL
Restaurant, High-Rise Employees and Bartenders Union Local 355,
AFL-CIO (Dora! Beach Hotel), 245 NLRB No 100 13°
130 The court, in New Fairview Hall Convalescent Home v. NLRB, 520
F 2d 1316, 1321 (2d Cir. 1975), noted the difficulty of fashioning an ap-
propriate remedy where the employer and the union are both guilty of -
misconduct, and recognized that the duty of the Board is to "measure the
effect of the Company's violations against the gravity of the Union's mis-
conduct in deciding whether a bargaining order was appropriate."
From all the above and on the evidence in the record
as a whole, I find and conclude that by refusing to rec-
ognize and bargain with the Union, on request, the Re-
spondent did not violate Section 8(a)(5) and (1) of the
Act, and that notwithstanding the Respondent's commis-
sion of other unfair labor practices found, no bargaining
order is warranted, appropriate or necessary to remedy
the violations committed.
C. The Effect of the Unfair Labor Practices on
Commerce
The activities of the Respondent set forth in section 3,
above, found to constitute unfair labor practices occur-
ring in connection with the operations of the Respondent
as described in section I of the prior decision, 131 have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow.
D. The Remedy
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
As the unfair labor practices committed by the Re-
spondent were serious and go to the very heart of the
Act, I shall recommend that it cease and desist therefrom
and in any other manner from interfering with, restrain-
ing, and coercing its employees in the exercise of the
rights guaranteed to them in Section 7 of the Act.'"
Having found that the Respondent did unlawfully dis-
charge Dominick Lauriano and Jorge Arias, it is recom-
mended that the Respondent offer them reinstatement to
their former positions, or if those positions no longer
exist, to substantially equivalent positions, without loss of
seniority or other benefits, and make them whole for any
loss of pay resulting from the discrimination against them
by payment of a sum of money equal to the amount they
normally would have earned as wages from the date of
their discharge to the date of a bona fide offer of rein-
statement, less net interim earnings. The backpay due
under the terms of the recommended Order shall include
interest to be computed in the manner prescribed by the
Board in F. W. Woolworth Co., 90 NLRB 289 (1950), and
Florida Steel Corp., 231 NLRB 651 (1977).133
Having found that the Respondent discriminated
against Eileen Darcy by failing and refusing to reinstate
her in a timely and prompt manner, I will recommend
that the Respondent make Eileen Darcy whole for any
loss of pay resulting from the discrimination against her
by payment of a sum of money equal to the amount she
normally would have earned as wages from the date she
should properly have been reinstated to the date she was
131 JD-(SF)-21-81.
132 Hickrnott Foods, 242 NLRB, 1357 (1979); NLRB v. Express Publish-
ing Co, 312 U.S. 426 (1941), NLRB v. Entwistle Mfg. Co., 120 F 2d 532
(4th CIS. 1941).
133 See generally Isis Plumbing Co, 138 NLRB 716 (1962). Also see
Olympic Medical Corp, 250 NLRB 146 (1980); Pioneer Concrete Co., 241
NLRB 264 (1979).
1352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
actually reinstated, less any net interim earnings during
the period.'" The backpay due under the terms of the
recommended Order shall include interest to be comput-
ed in the manner prescribed by the Board in F. W. Wool-
worth Co., supra, and Florida Steel Corp., supra.i35
CONCLUSIONS OF LAW
1. The Respondent, Multimatic Products, Inc., is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Industrial Trade Union Local 231, International
Union of Dolls, Toys, Playthings, Novelties and Allied
Products of the ,United States and Canada, AFL-CIO is
a labor organization within the meaning of Section 2(5)
of the Act.
3. The Respondent has interfered with, restrained, and
coerced its employees in the exercise of their rights guar-
anteed in Section 7-of the Act, and has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act
by:
(a) Coercively interrogating its employees concerning
their union activities and sympathies.
(b) Threatening and warning its employees with dis-
charge and with plant closure if they engaged. in union
activities or supported or became members of the Union.
(c) Creating the impression that the employees' activi-
ties on behalf of the Union were under surveillance.
(d) Expressly and impliedly promising more wage in-
creases to its employees for the purpose of inducing
them to refrain from joining or supporting the Union.
(e) Urging and directing its employees to allow the
Respondent to sponsor a labor organization of its own
choosing.
4. By discharging and failing and refusing to reinstate
Dominick Lauriano and Jorge Arias, and by failing and
refusing to timely reinstate Eileen Darcy, all because
they had engaged in union or other protected concerted
activity, with the intent to discourage unit employees
from engaging in union or other protected activities, the
Respondent has engaged in unfair labor practices in vio-
lation of Section 8(a)(3) and (1) of the Act.
5. All production and maintenance employees of the
Respondent, employed at its Plainview plant, exclusive
of all office clerical employees, guards and supervisors as
defined in Section 2(11) of the Act, constitute a unit ap-
propriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
6. By refusing on or after 20 February 1978, to recog-
nize and bargain with the Union as the collective-bar-
gaining representative of its employees in the unit found
appropriate above, the Respondent has not violated Sec-
tion 8(a)(5) and (1) of the Act.
7. The unfair labor practices found above are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
8. Except as set forth above, the General Counsel has
not established by a preponderance of the credible evi-
dence that the Respondent has further violated the Act.
34 See JD-(SF)--21-81
135 Fn. 133, supra
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed136
ORDER
The Respondent, Multimatic Products, Inc., Plainview,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Coercively interrogating its employees concerning
their union activities and sympathies.
(b) Threatening and warning its employees with dis-
charge and with plant closure if they engaged in union
activities or supported or became members of the Union.
(c) Creating the impression that the employees' activi-
ties on behalf of the Union were under surveillance.
(d) Expressly and impliedly promising more wage in-
creases to its employees for the purpose of inducing
them to refrain from joining or supporting the Union.
(e) Urging and directing its employees to allow the
Respondent to sponsor a labor organization of its own
choosing.
(f) Discouraging membership in or support of Industri-
al Trade Union Local 231, International Union of Dolls,
Toys, Playthings, Novelties and Allied Products of the
United States and Canada, AFL-CIO, or any other labor
organization, by discharging or refusing to reinstate in a
timely fashion, or otherwise discriminating against em-
ployees in their hire and tenure.
(g) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them under Section 7 of the Act.'"
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Dominick Lauriano and Jorge Arias immedi-
ate and full reinstatement to their former positions or, if
those positions are no longer available, to substantially
equivalent positions without prejudice to their seniority
or other rights and privileges previously enjoyed.
(b) Make Dominick Lauriano, Jorge Arias, and Eileen
Darcy whole for any loss of pay that they may have suf-
fered by reason of the discrimination against them, in ac-
cordance with the recommendations set forth in the
remedy section of this decision.
(c) 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.
136 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.
137 A broad order is warranted as indicated by the serious unfair labor
practices found. Backstage Restaurant, 232 NLRB 1082 (1977); Stride Rite
Corp., 228 NLRB 224 (1977); Ann Lee Sportswear, Inc. 220 NLRB 982
(1975).
MULTIMATIC PRODUCTS

1353
(d) Post at its Plainview, New York facility, copies of
the attached notice marked "Appendix." 138 Copies of
the notice, on forms provided by the Regional Director
for Region 29, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
138 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."
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.
(e) 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 those allegations in the
complaint as to which no violations have been found are
dismissed.