Waterbed World

National Labor Relations Board - Board Decisions

Jan 5, 1990

301 N.L.R.B. 589 (N.L.R.B. 1990)

589
301 NLRB No. 82
WATERBED WORLD
1 The Respondent has requested oral argument. The request is denied as the
record, exceptions, and briefs adequately present the issues and the positions
of the parties.
2 The Respondent has 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 evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
The Respondent also asserts that the judge’s decision is the result of bias
and prejudice. Some of the Respondent’s assertions were found without merit
in the underlying proceeding. With regard to the allegations pertaining to the
instant phase of this proceeding, we have examined the record and find that
the Respondent’s allegations are without merit.
3 286 NLRB 425 (1987).
4 Musa testified, inter alia, that Respondent’s secretary-treasurer, Jaime Rico,
told her that he knew that Marquez had brought the Union into the Company
and that she should not get involved.
5 289 NLRB 808.
6 The hearing was originally scheduled for January 30, 1989. The judge
granted two postponement requests by the Respondent as it had been unable
to locate Musa. The judge denied the Respondent’s request for a third post-
ponement.
7 Unless otherwise noted, all dates between July and December are in 1987
and all dates between January and June are in 1988.
Omnix International Corporation, d/b/a Waterbed
World and Union Independiente de
Supermercados y Tiendas Por Departamentos.
Cases 24–CA–5160 and 24–CA–6985
January 5, 1990
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On January 5, 1990, Administrative Law Judge El-
bert D. Gadsden issued the attached supplemental deci-
sion. The Respondent filed exceptions and a supporting
brief;1 the General Counsel filed an answering brief to
the Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order for the
reasons set forth below.
On September 30, 1987, the Board issued a Deci-
sion, Order, and Certification of Representative3 adopt-
ing in relevant part the judge’s findings that the Re-
spondent had violated Section 8(a)(3) and (1) by refus-
ing to permit employee Marilu Marquez to rescind her
resignation and by discharging employee Gloria Garcia
and Section 8(a)(1) by threatening employee Raisa
Musa Quinones with unspecified reprisals for union
activities. The Board adopted the judge’s credibility
resolutions with regard to Musa’s testimony.4 On Janu-
ary 22, 1988, the Respondent filed a motion to reopen
the record and attached a statement dated December
15, 1987, and purportedly executed by Musa asserting
that her testimony was false. On July 13, 1988, the
Board granted the motion and remanded the case for
resolution of the credibility issues raised by the mo-
tion.5 A hearing pursuant to the Board’s Order was
held on April 17, 1989.6
Musa did not appear at the reopened hearing. The
Respondent asserts that Musa is a declarant unavail-
able as a witness under Rule 804 of the Federal Rules
of Evidence and that the December 15, 19877 out-of-
court declaration is admissible as an exception to the
hearsay rule.8 The Respondent argues further that the
December 15 document, quoted in full by the judge,
requires a finding that the Respondent did not violate
the Act as found in the underlying proceeding.
Rico testified at the reopened hearing that he first
read the Board’s decision in November 1987, did not
agree with Musa’s testimony, and met with Musa, who
told him that ‘‘she wanted to clarify things that she
had been forced to do and say against her will—
against [Rico].’’ They agreed to meet again. On De-
cember 15, the date set for the second meeting, Rico
prepared a statement for Musa to sign. At a restaurant
that evening, he and an attorney, Ortiz-Murias, met a
woman and man who identified themselves as Musa
and her husband. Rico showed the statement to the
woman, who identified the statements as her own and
stated that she could ‘‘live with that.’’ She signed the
statement with Musa’s name. Ortiz-Murias testified
that he accompanied Rico to the December 15 meeting
because Rico wanted a statement preserved under oath.
Ortiz-Murias did not verify the woman’s identity. She
told him that she made the statements in the document
of her own free will. After she had signed it, Ortiz-
Murias informed her that he wished to notarize the
document, took it from her, and typed a notarial dec-
laration on it in his office after the meeting had ended.
At the reopened hearing, the Respondent sought the
admission of Rico’s testimony regarding the conversa-
tions with Musa and of the December 15 document.
The General Counsel objected that the statements were
inadmissible as hearsay. The General Counsel also
conditionally introduced an affidavit allegedly signed
by Musa and dated March 5 declaring, in pertinent
part, that Musa ‘‘never signed a sworn statement or
any other type of document in which I have changed
my testimony at the hearing.’’ She acknowledged hav-
ing met with Rico and an attorney, but in the show-
room of one of the Respondent’s stores. She stated that
Rico asked her whether she had been threatened by
Marquez and Garcia: ‘‘I said yes, that on one occasion
Marilu [Marquez] had made me a death threat, but that
it . . . had nothing to do with the Union.’’ With re-
gard to the December 15 document, Musa stated,
‘‘[t]his is the first time that I see that document. I have
never seen a document equal to this one in Spanish ei-
590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Concerning the Respondent’s efforts to produce Musa, the parties stipu-
lated that Cruz, a process server, visited Musa’s last known address and em-
ployer on January 26, visited the address of a man with whom Musa was re-
ported to be living with on February 24, visited Musa’s mother on February
25, and visited Musa’a address again on February 25 and 27. On April 15,
Cruz again visited Musa’s mother, who informed him that Musa might have
been in a local women’s prison. Cruz called the prison but received no answer.
Rico testified that he called the prison on April 16 and was told that no one
named Raisa Musa Quinones was incarcerated there.
9 Fed.R.Evid. 804 reads in pertinent part:
(a) Definition of Unavailability.—‘‘Unavailability as a witness’’ includes
situations in which the declarant—
. . . .
(5) is absent from the hearing and the proponent of his statement has
been unable to procure [his] attendance (or in the case of a hearsay ex-
ception under subdivision (b)(2), (3), or (4), [his] attendance or testimony)
by process or other reasonable means.
10 Neither party has excepted to the judge’s admission of Rico’s testimony
regarding his conversations with Musa, the December 15 document, or the
March 5 document. Under Sec. 10(b) of the Act, the Board applies the rules
of evidence applicable in the Federal courts ‘‘so far as practicable.’’ See also
Alvin J. Bart & Co., 236 NLRB 242 (1978).
11 In adopting the judge’s conclusions, we do not rely on his discussion of
the Federal Rules of Evidence or the laws of the Commonwealth of Puerto
Rico.
12 We note that a showing that a witness is unavailable under Rule 804 is
merely the first step toward the admission and crediting of out-of-court state-
ments. Under Rule 804(b)(3), which the Respondent argues is applicable to
the December 15 document, ‘‘[a] statement tending to expose the declarant to
criminal liability and offered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of the state-
ment.’’ Thus, even assuming that Musa is unavailable, we are obliged to scru-
tinize statements alleged to be hers—whether introduced by the Respondent
or by the General Counsel—with great care.
13 See 286 NLRB at 427.
14 Of course, it is also troubling that, apart from Rico’s identification, the
record contains no competent evidence that the woman who signed the paper
actually was Musa. Ortiz-Murias, by his own admission, relied only on Rico’s
word that the woman was Musa; Rico’s out-of-court identification of Musa to
Ortiz-Murias carries no indicia of reliability. Moreover, the Respondent made
no effort at the hearing to render Ortiz-Murias’ testimony more competent or
probative by, for example, asking him to describe the woman he met or to
identify a picture of Musa.
ther. Nor have I given a sworn statement to anybody
which says what that document says.’’
Although the judge expressed the view that the Re-
spondent’s efforts to locate Musa were not sufficient to
bring the December 15 statement under Rule 804,9 he
admitted Rico’s testimony regarding the two conversa-
tions, the December 15 document, and the March 5 af-
fidavit into evidence.10 He rejected the December 15
statement as probative ‘‘for lack of authenticity and
credibility’’ in view of Ortiz-Murias’ failure to verify
the signer’s identity, as required by Puerto Rican law.
Finally, as noted above, the judge concluded that the
Respondent had failed to establish that Musa recanted
her testimony.11
At the outset, we find it unnecessary to pass on the
sufficiency of the Respondent’s efforts to locate and
serve Musa.12 After careful consideration, we find that
none of the evidence submitted by the Respondent,
taken either individually or cumulatively, creates suffi-
cient doubt of the judge’s credibility determination as
to Musa’s testimony to require us to alter our holding
in the underlying case, and we find no merit in the Re-
spondent’s arguments to the contrary.
As an initial matter, the Respondent attacks the
judge’s discrediting of Rico’s testimony regarding his
meetings with Musa. The Respondent argues that the
judge erred in placing the disclosure that Musa had
been in prison on April 3, 1989, rather than April 15,
as the parties had stipulated, and that this error colored
his interpretation of Rico’s testimony and the Respond-
ent’s case. We agree that the judge erred concerning
the date of the disclosure and that he erred further in
relying on the April 3 date to find that the Respondent
had been remiss in trying to locate Musa. We note,
however, that the judge’s discrediting of Rico’s testi-
mony was also based on Rico’s demeanor and on other
factors discussed by the judge. Therefore, as noted
above, we see no reason to overturn that resolution.
Moreover, even if Rico’s testimony regarding these
meetings were credited, it does not provide convincing
support for the averments in the December 15 docu-
ment. With regard to the November meeting, Rico’s
complete testimony as to the alleged recanting follows:
we spoke about the meeting I had with her at
the Guaynabo Shopping Center [about which
Musa had testified in the 1985 hearing] . . . .
She made clear to me that I had not intimidated
her or threatened her. . . . That she had had
problems with Mrs. Marquez up to the point, and
I quote, that she had had to be escorted to and
from her home by the police. . . . [S]he wanted
to make things clear and clarify things . . . things
that she had been forced to do and say against her
will, against myself [final ellipsis in original].
These statements are simply too vague to support a
conclusion that Musa was prepared to swear that her
testimony at the original hearing was false or given
under duress. In fact, Rico’s testimony actually under-
cuts the authenticity of the December 15 document. A
comparison of Musa’s purported statements at the No-
vember meeting to those in the December 15 document
shows that that document does not reflect Musa’s own
words, but is closer to a summary denial of the points
of her testimony cited in the Board decision.13 Thus,
Rico’s testimony regarding the November meeting pro-
vides no basis whatever for inferring that the Decem-
ber 15 document is genuine.
Rico’s testimony regarding the December 15 meet-
ing is equally devoid of assurances. Assuming that the
woman at the restaurant was Musa, as Rico testified,
there is no evidence that she actually swore to the
averments in the document or that she ever saw the
document introduced by the Respondent in its final
form. Her statement to Rico that ‘‘I can live with
that’’ plainly does not suffice as a formal oath or as
an indication of an intent to swear. Further, according
to Ortiz-Murias’ testimony, the notarial seal and lan-
guage, which are the only indications on the document
of the signer’s oath, were added out of Musa’s pres-
ence and after she signed the paper. Thus, Rico’s testi-
mony affords no basis for an inference that the Decem-
ber 15 document is a statement of Musa’s and should
be credited over her testimony.14
591WATERBED WORLD
15 The Respondent argues alternatively that Musa’s statement is admissible
under Fed.R.Evid. 805(b)(5). We find no merit in this argument as it may per-
tain to the crediting of evidence once it has been admitted. For the reasons
set forth above, we note that the December 15 document lacks substantial
guarantees of trustworthiness as required by that rule.
In light of our findings here, we find it unnecessary to submit the record
in this case to the Department of Justice for its consideration. See 289 NLRB
808, supra.
Finally, the existence of the March 5 affidavit also
undercuts the trustworthiness of the December 15 doc-
ument. The later document’s indicia of reliability are,
at first blush, more convincing than those of the earlier
one. Specifically, the record contains no testimony un-
dermining its facial appearance of reliability, as it does
with regard to the December 15 document. However,
we must approach the contents of the March 5 docu-
ment with the same caution accorded the Respondent’s
submissions. The March 5 document is also an out-of-
court declaration concerning which no cross-examina-
tion has occurred, and an affidavit given to the General
Counsel by an absent witness is subject to careful scru-
tiny. United Sanitation Services, 262 NLRB 1369,
1374 (1982); National Family Opinion, 246 NLRB
521, 524 fn. 1 (1979). Apart from the veracity of the
declarations in the March 5 statement, however, the
existence of a sworn statement totally disavowing the
authenticity of the December 15 document and exe-
cuted less than 90 days later further obviates reliance
on the December 15 document as an authentic, truthful
statement by Musa that should be credited over her
record testimony in the underlying case. Thus, we
agree with the judge that the Respondent has intro-
duced no credible, probative evidence to warrant dis-
turbing the credibility resolution or the holding in the
underlying case.15
ORDER
The National Labor Relations Board affirms the
September 30, 1987 Decision, Order, and Certification
of Representative and orders that the Respondent,
Omnix International Corporation, d/b/a Waterbed
World, Hato Rey, Puerto Rico, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
therein.
Antonio F. Santos, Esq., for the General Counsel.
James McCorkle, Esq. and John Alberty, Esq., of Columbus,
Ohio, for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. A hear-
ing in the above captioned case was held before me on De-
cember 16, 17, and 18, 1985. I issued the decision in this
matter on June 23, 1986. On September 30, 1987, the Board
issued its Decision, Order, and Certification of Representa-
tive, finding that Respondent violated Section 8(a)(1) and (3)
of the Act.
On January 22, 1988, Respondent filed a motion with the
Board for a protective order to reopen the record because one
of its former employees, Raisa Musa Quinones, had recently
recanted her previous testimony in a sworn affidavit on De-
cember 15, 1987.
On July 13, 1988, the Board issued an Order denying Re-
spondent’s motion for a protective order, but granting its mo-
tion to reopen the record. The Board therefore remanded the
proceeding to the administrative law judge to reopen the
record, to take additional testimony and resolve the credi-
bility questions raised by Musa’s affidavit, and to issue his
findings and conclusions of law in a supplemental decision
consistent with his resolution of the issue. During a tele-
phone conference with respective counsel for the parties
about a date and convenient time to resume the proceeding,
I issued an order on January 10, 1989, reopening the record
in the above-captioned proceeding and scheduling a hearing
for January 30, 1989.
During a telephone conference-discussion about issuing
subpoenas with counsel for the respective parties on January
26, 1989, counsel for the Respondent moved to postpone the
hearing because Respondent had been unable to locate Raisa
Musa Quinones (Musa). After a consensus was reached on
a hearing date, I rescheduled the hearing for March 15, 1989.
On March 4, 1989, counsel for Respondent filed a motion
to postpone the rescheduled hearing because Respondent had
not yet been able to locate Musa.
On March 9, 1989, I granted Respondent’s motion for
postponement and rescheduled the hearing for April 17.
The remand hearing in the instant case was held on April
17, 1989. Counsel for Respondent immediately announced
that Respondent had been unable to locate Musa.
The parties stipulated that Respondent made the efforts
stated in the below sworn statement by Ramon Cruz to con-
tact Musa, but not to the truth of statement about her use of
drugs; and that Musa is not present at the hearing today.
Ramon Cruz, a private investigator retained by Respondent
to serve a subpoena on Musa, was called to testify.
Ramon L. Cruz, of legal age, married, resident of Baya-
mon, Puerto Rico, being duly sworn states the following:
1. That his name and personal circumstances are those de-
scribed above.
2. That he is recognized in Puerto Rico as a process serv-
er. As an independent contractor, he is contracted by lawyers
in Puerto Rico to serve complaints, summons, subpoenas,
and other court documents for Federal and state proceedings.
3. That on January 25, 1989, he was contracted by Omnix
International as a process server, to serve a subpoena to an
individual by the name of Raisa Musa Quinones. The sub-
poena issued by the National Labor Relations Board No. D-
85005 and signed by Mary Cracraft. Together with the sub-
poena I was given a check (money order) for the amount of
$37 payable to Raisa Musa Quinones to cover fees and mile-
age. (The aforementioned subpoena is attached hereto as
Exh. I.)
4. That on January 26, 1989, he went to the address listed
on the subpoena but was not able to locate Musa. The cur-
rent occupant of that apartment advised him that she had pur-
chased the apartment from a Perez, who appeared to be
Musa’s landlord.
592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5. That on this same date, he appeared at the Environ-
mental Quality Board located in Santurce to notify Musa of
the subpoena. He had been previously advised that she was
employed by that agency. That at the agency he met with
Elias Doitteau Morales, personnel director of that agency.
That Doitteau advised him that Musa had been dismissed
from her job at the agency together with Alfredo Rodriguez
Rivera who lived with Musa and a child of 7 or 8 months.
That this person also advised him that various persons were
also looking for her including agents of the Criminal Inves-
tigations Bureau of Bayamon and that he did not know her
whereabouts. Doitteau also advised him that Musa’s mother,
whose name is Carmen Perez, had a business at the Rio
Hondo Shopping Center.
6. The following efforts were also made by Cruz on this
same date:
a. I visited the mother who advised me that she no
longer maintained any communications with her daugh-
ter;
1. her daughter had drug related problems;
2. that her daughter lived with a man named Alfredo
Rodriguez and had a child with the latter.
b. After receiving the second subpoena for Musa for
the hearing scheduled for March 15, 1989 (Copy of
which is attached hereto as Exhibit II) I visited Mr.
Rodriguez’s parents home at Calle 1 No. 346, Hills
Brothers Ward in Rio Piedras, Puerto Rico on February
24, 1989.
1. I was advised by Mr. Rodriguez’s mother, Lydia
Rivera that she did not know the whereabouts of Ms.
Musa nor her son and volunteered that she knew that
Musa was having drug problems and that her son had
fathered her child.
2. Ms. Rivera also told me that Musa was being
sought by Commonwealth detectives from Bayamon
and Carolina.
c. On February 25, 1989 I again visited Ms. Musa’s
mother who advised me she had nothing new to tell me
regarding her daughter’s whereabouts.
d. On this same date I went to the address listed on
the subpoena and was advised by a security guard that
there was no one home and I left my telephone number
so that he could call me if he had any information as
to Ms. Musa’s whereabouts.
e. On February 27, 1989 I visited the apartment list-
ed on the subpoena again because the security guard
called me. On this occasion the security guard told me
to talk to Ms. Musa’s neighbor. I spoke to the afore-
mentioned neighbor, Sara Rodriguez who advised me
that Ms. Musa had moved but that she had no address
to give me.
7. Cruz had made innumerable efforts to serve the afore-
mentioned subpoenas upon Musa to no avail.
Investigator Cruz testified that in addition to efforts out-
lined in his affidavit of March 2, 1989, to serve Musa with
a subpoena, he visited Carmen Perez, mother of Musa, about
1 or 2 p.m. on Saturday, April 3, 1989. Although Perez had
told him on previous occasions that she did not know the
whereabouts of Musa, she told him on this occasion that
Musa had telephoned and informed her that she was detained
at the Vega Alta Baja Women’s Prison. She said she had
told Musa she knew what was going to happen to her and
she did not want to have anything to do with her. In any
event, Perez said she has not since heard from Musa and did
not know whether she was still at the prison. Cruz said he
called Respondent’s vice president, Rico, on the same day
and informed him what Perez had told him.
On cross-examination, investigator Cruz further testified
that after March 2, 1989, he made no further effort to contact
Musa until Saturday, April 15, 1989, 2 days before the hear-
ing in the instant matter. At that time, he said he called the
prison but since it was the weekend, he did not receive an
answer.
The Testimony of Supervisor Rico
Jaime A. Rico has been employed by Respondent since it
was established 8 or 9 years ago. He is also vice president
and secretary of the Company.
Rico testified that when he returned from Spain on No-
vember 19, 1987, he received the Board’s decision and read
Musa’s testimony in the transcript of the proceeding, with
which testimony he did not agree. He said he could not re-
call—remember—whether he discussed the Board’s decision
or Musa’s testimony with Respondent’s president, Alan Ben-
net. When counsel for the Acting General Counsel tried to
elicit when did Rico first read the Board’s decision issued by
the judge in this case, he testified as follows:
Q. Did you read the decision that the Judge issued
in this proceeding back in 1986 when it arrived in
Waterbed?
A. What I remember is about the transcription, about
the other things I don’t remember.
Q. So all you remember is that you read the tran-
scriptions of this proceeding sometime in November of
’87, is that correct? . . .
A. Yes, I remember reading the transcriptions be-
cause that’s what made me take action to clarify that.
Because I was not here nor was I witness as to what
was said because I was not at the hearing.
Although Rico testified he could not recall—could not re-
member—whether he discussed the Board’s decision in this
case or the testimony of Musa with Respondent’s president,
Alan Bennet, he said he went to Musa’s job at the Environ-
mental Quality Board, and made a date with her to meet her
at La Ponderosa Restaurant after Thanksgiving.
When Rico attempted to testify about a conversation he
said he held with Musa, counsel for Acting General Counsel
objected on the grounds that Respondent has not established
that the witness is unavailable and that such conversation
would be hearsay and is inadmissible. Counsel for Respond-
ent argued that the purported conversation and an affidavit
given by Musa are admissible under Sections 804(b)(3) and
(5) and 804(a) of the Federal Rules of Evidence.
Counsel for the Acting General Counsel correctly further
argues that the Board has held that affidavits are not admissi-
ble in lieu of testimony unless the witness is either deceased
or so seriously ill that accepting the oral testimony poses a
threat to the health of the witness. The rationale for the rule
being, to admit the affidavit under other circumstances would
deny the opposition an opportunity to cross-examine the affi-
ant and deprive the administrative law judge of an oppor-
593WATERBED WORLD
tunity to observe the demeanor and evaluate the testimony of
the witness. Limpco Mfg., 225 NLRB 987 (1976); Sure Tan,
Inc., 234 NLRB 1187 (1978); and West Texas Utilities Co.,
94 NLRB 1638 (1951).
An examination of Section 804(b)(3) and (5) of the Fed-
eral Rules of Evidence shows that the party offering the
hearsay evidence must show:
(1) that it has made sufficient and substantial efforts
to locate the witness.
(2) that the statement has substantial guarantees of
trustworthiness, and
(3) that the statement is against interest.
Moreover, under Rule 804(b)(5), the party offering the
hearsay statement must further show:
(1) the unavailability of the declarant as defined in
Rule 804(a) and as in 804(b)(5);
(2) that the statement has substantial guarantees of
trustworthiness;
(3) the statement is offered as evidence of a material
fact;
(4) the statement is more probative on the point for
which it is offered than any other evidence which the
proponent can procure through reasonable efforts;
(5) the general purposes of these rules and interests
of justice will best be served by admission of the state-
ment into evidence.
Under Rule 804(a)(5), unavailability must be demonstrated
by showing:
(1) the witness is exempt by ruling of the court on
the ground of privilege from testifying concerning the
subject matter of the declarant’s statement; or
(2) the witness persists in refusing to testify con-
cerning the subject matter of the declarant’s statement
despite an order of the Court to do so;
(3) the witness testifies to a lack of memory of the
subject matter of the declarant’s statement;
(4) the witness is unable to be present to testify at
the hearing because of death or other existing physical
or mental illness or infirmity;
(5) the witness is absent from the hearing and the
proponent of a statement has been unable to procure the
declarant’s attendance (or in the case of a hearsay ex-
ception under subdivision (b)(2), (3) or (4), the declar-
ant’s attendance or testimony) by process or other rea-
sonable means.
Evidence
In view of the above-cited Rules of Evidence, the only
evidence presented by Respondent with respect to the un-
availability of Raisa Musa Quinones to appear and testify, is
as follows:
On January 25, 1989, Respondent retained the services of
a professional process server (Ramon L. Cruz) in Puerto
Rico to serve subpoenas on Raisa Musa Quinones; and that
during the remainder of January, February, and until March
2, 1989, Cruz, following several leads on the whereabouts of
Musa, made several unsuccessful efforts to locate and serve
her. However, when Cruz went to the home of Musa’s moth-
er (Perez) on April 3, 1989, she told him Musa had tele-
phoned and informed her that she (Musa) was being detained
at the Vega Alta Baja Women’s Prison. Cruz said he called
Respondent’s vice president, Jaime Rico, that same day and
informed him of what Perez had told him.
Cruz admitted that after March 2, 1989, he made no effort
to contact Musa until Saturday, April 15, 1989, 2 days before
this hearing on April 17, 1989. At that time, he said he tele-
phoned the prison several times on Saturday, April 15, and
Sunday, April 16, 1989, but no one answered, presumably
because it was a weekend. At no time between April 3 and
April 15, after he learned that Musa was last reported to be
at the prison, did Cruz ever go to the prison to verify wheth-
er or not she was there and attempt to serve her.
Conclusion
Based on the foregoing credited evidence, I conclude and
find that between January 25, 1989, and March 2, 1989, Re-
spondent (Cruz) made some efforts to locate Musa. However,
in determining whether the efforts of Respondent to procure
the attendance of Musa at this hearing were reasonable, at-
tention is immediately drawn to Respondent’s failure to pur-
sue with dispatch its latest lead on the whereabouts of Musa.
This lead, obtained from Musa’s mother (Perez) April 3,
1989, that Musa was detained at the prison, was perhaps the
hottest and most reliable lead Cruz had thus far obtained.
Notwithstanding, this lead, of all leads, was not diligently
pursued by Cruz nor Rico (whom Cruz had informed about
the lead April 3), by contacting or going to the prison imme-
diately and talking to appropriate prison officials. Instead, no
further effort was made by Cruz or any other representative
of Respondent, to verify whether Musa was at the prison and
attempt to serve her, until nearly 12 days later, April 15 and
16, 1989, a day or two before the instant hearing. Even at
that time, Cruz only telephoned the prison and when he did
not receive an answer, he did not go to the prison to make
an inquiry.
Vice President Rico further testified that he made an effort
to contact Musa on Sunday, April 16, 1989, the day before
the hearing, when he went to the Vega Alta Baja Prison, in
following up the lead information given to him by Cruz. He
said he asked a person whose name he did not know, was
someone imprisoned there named Raisa Musa Quinones. The
person who searched visitors told him there was no one there
by the name of Raisa Musa Quinones. Rico said he did not
ask any further questions, and he left the prison.
Credibility
An analysis of Supervisor Jaime Rico’s hearsay and non-
hearsay testimony reveals that it is sketchy, sometimes unre-
sponsive to important questions where language (English-
Spanish) was not a problem, inconsistent with documentary
evidence of record, infra, illogical under the circumstances,
self-serving, and profoundly nonpersuasive.
More specifically, Rico testified that when he returned
from Spain in November 1987, he read the transcription of
Musa’s testimony. He said he could not remember reading
the decision in this case nor whether he discussed the deci-
sion or Musa’s testimony with Respondent’s president, Alan
Bennet.
594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
However, I find it inconceivable he would not have dis-
cussed or would not have remembered whether he discussed
the decision and Musa’s testimony in the instant case with
President Bennet, when Rico was so disturbed by both (deci-
sion and Musa’s testimony) that the company had the record
in this proceeding reopened to correct his concerns.
Although Rico testified he was not at the hearing and was
not a witness to what was said, I am persuaded he meant he
was not in the hearing room when Musa testified, because
the witnesses were sequestered. However, he did appear and
testify in the hearing in December 1985. In any event his
hearsay testimony in the reopened April 17, 1989 hearing
about a conversation Rico said he had with Musa in May 1
and 3, 1985, is denied by Musa in her March 5, 1988 affi-
davit given to the Board, infra. In fact, in the latter affidavit,
Musa stated that she did not change her testimony which she
said was truthful. She explained that her response to Rico’s
question about a death threat by Marilu or Gloria was related
to personal (domestic) matters, and not to the Union or Na-
tional Labor Relations Board.
It is noted that Musa’s March 5, 1988 affidavit does not
appear to have been improperly executed as the evidence,
infra, shows Respondent’s Exhibit 8 was so executed. But
even if it were, it at least establishes that Musa’s statements
in each document are contradictory to her statements in the
other.
For the foregoing reasons, I do not credit Rico’s inadmis-
sible or his admissible self-serving hearsay testimony. More-
over, as I observed the demeanor of Rico and the evasive,
nonresponsive, and equivocal manner in which he testified,
I was persuaded he was not testifying truthfully about what
he said Musa told him regarding the Union. The credited
documentary evidence, infra, supports my conclusions.
Since Cruz was retained by Respondent (Rico), whom
Cruz had informed about the lead, I find it difficult to con-
ceive Respondent (Rico) not having directed Cruz to go to
the prison on that day (April 3) or the following day (April
4). After all, if Musa was in fact at the prison, that was the
surest way to locate and serve her, since her locomotion
would have been restricted at the prison. Since Respondent
failed to contact the prison for 12 days, 2 days before the
instant hearing, I have misgivings that Respondent made rea-
sonable efforts to procure Musa’s attendance at the hearing.
This conclusion is further supported by the hearsay and
self-serving testimony of Rico, as well as the circumstances
surrounding Rico’s procuring a signed statement from Musa,
the admissibility of which are the subject of an evidentiary
dispute.
Therefore, I am not persuaded that Respondent’s efforts to
locate Musa were necessarily reasonable and sufficient to sat-
isfy the definition of unavailability under the rules of evi-
dence. Notwithstanding, for purposes of affording Respond-
ent every opportunity to pursue the legal theory of its case,
the hearsay conversation Rico said he had with Musa at La
Ponderosa after Thanksgiving in 1987 is admitted over the
objections of counsel for the Acting General Counsel. This
improperly admitted conversation is admitted because its ad-
mission may better serve continuity of the events and justice
than its exclusion.
In that asserted conversation, Rico testified:
Musa told him that when she worked for the Re-
spondent in 1985, she had many problems with Marilu
Marquez and that she left with Gloria Garcia’s hus-
band. Thereafter, they [Rico and Musa] talked about a
conversation they had at the Guaynabo Shopping Cen-
ter. He [Rico] said he took notes on the conversation
with Musa which he later typed. He said she told him
she had problems with Mrs. Marilu Marquez to the ex-
tent that she had to be escorted to and from her home
by police; that she wanted to clarify things that she was
forced to do and say against her will—against him
[Rico]. When asked on cross-examination whether
Musa had any alcoholic beverages that evening, Rico
said he could not remember, but he did not think so.
As their luncheon ended, Rico said he arranged to call
Musa at her job to agree on a date when they could meet
again. Thereafter, he called Musa on two or three occasions
trying to agree on a time convenient for both of them. Fi-
nally, they agreed to meet at the Pizza Hut in Hato Rey on
the evening of December 15, 1987. (End of hearsay con-
versation.)
Preparation and Signing of Alleged Affidavit
Rico continued to testify that when he went to the Pizza
Hut on December 15, 1987, he had the statement Musa gave
him in November, which he typed (R. Exh. 8). He said Musa
and the person she had previously identified as her husband
were at the Pizza Hut when he, accompanied by his attorney,
Jorge Ortiz-Murias, arrived. Musa did not know Attorney
Ortiz-Murias and he (Rico) introduced Attorney Ortiz-Murias
to Musa, and she extended her hand to him and identified
herself as Raisa Musa Quinones. When asked did Musa show
any identification to Attorney Ortiz-Murias, Rico said he did
not know.
Nevertheless, Rico said they sat down and, before ordering
food, he took out the statement Raisa had previously given
him, which he had typed subsequently (R. Exh. 8). Musa
stated those were her statements and she could live with
them. He said she thereupon signed the statement in the pres-
ence of himself and Attorney Ortiz-Murias, who kept the
statement.
Testimony of Attorney Jorge Ortiz-Murias
Jorge Ortiz-Murias was called by the Respondent and testi-
fied that he has been an attorney licensed to practice law in
Puerto Rico for about 9 years. He said about 3 years ago he
was retained by Rico to represent him in the administration
of the estate of Rico’s mother. Thereafter, he said they be-
came and has since then remained friends.
When asked on cross-examination what, if any, type of
work did he do for Rico in mid-December 1987, Ortiz-
Murias testified that at the request of Rico, he accompanied
Rico to the Pizza Hut next to his office on December 15,
1987, before Raisa Musa Quinones and her husband arrived.
While they were awaiting the arrival of Musa, Rico told him
Respondent had had a problem with a case in court and the
young lady he wanted him to meet was a principal witness
in the case, who had lied in the trial and wanted to change
her testimony. Rico said he wanted to preserve her statement
under oath in an affidavit. When Musa arrived, she told him
she was Raisa Musa Quinones and that she had worked for
595WATERBED WORLD
Waterbed World with him, which she described as a pleasant
experience. She introduced a gentleman with her as her hus-
band. Attorney Ortiz-Murias acknowledged he did not know
Musa or her husband prior to them meeting that evening.
Attorney Ortiz-Murias said Musa told him she had pre-
viously dictated the typewritten statements in the document
held by Rico (R. Exh. 8); that she made the statements freely
and of her own will; and that she had not been forced to
make the statements in that document. Musa then read the
document (R. Exh. 8) and appeared satisfied with its con-
tents, and she signed it. Counsel said he told her he wanted
to notarize it and he took the document (R. Exh. 8) to his
office and typed the declaration on it.
On cross-examination, Attorney Ortiz-Murias was asked if
he asked Musa for any identification. He said, ‘‘no.’’
When asked was he aware that under the laws of Puerto
Rico, a notary should request at least two persons to identify
an affiant, he said ‘‘no, you need a witness in case it’s a
public instrument, like a deed of sale, but not an affidavit.’’
He said he was satisfied as a notary with Rico’s identifica-
tion and that the affiant was an employee of Rico. On further
interrogation, Attorney Ortiz-Murias said he was not sure if
two witnesses were required by the law.
Attorney Ortiz-Murias was asked whether an attorney who
does not know the affiant is required under law to request
an identification of the affiant. He responded that such an af-
fiant can be identified by producing a photograph on a driv-
er’s license, or by a third party who knows the declarant.
The parties stipulated to the authenticity (not contents) of
the certification and translation of Respondent’s Exhibits 9a
and b, respectively.
Admissibility of Musa’s Sworn Statement
Since Raisa Musa Quinones was not present at the hear-
ing, counsel for Respondent moved for the admission of Re-
spondent’s Exhibits 8 (Musa’s affidavit), 9a (the translation
of that affidavit), and 9b (the certification) pursuant to Rules
804(b)(3) and (5) of the Federal Rules of Evidence. Counsel
for Acting General Counsel objected to the admission on the
grounds that the affidavit is inadmissible hearsay. He argued
that the document (R. Exh. 8) is also inadmissible because
Respondent has failed to establish that Musa ever recanted
her testimony or signed the December 15, 1987 affidavit, be-
cause Respondent did not establish that the person who
signed the affidavit was in fact Raisa Musa Quinones. In
support of his position, he argued that not only has Respond-
ent failed to establish that the person represented to Attorney
Ortiz-Murias was in fact Musa, but that the statements in her
December 15, 1987 affidavit (R. Exh. 8) are contradictory to
statements in Musa’s subsequent affidavit (G.C. Exhs. 13a
and b) given to counsel for the Acting General Counsel
March 5, 1988. In the latter affidavit, counsel contends that
Musa reiterated that her testimony in December 1987 was
the truth, and she denies, among other things, that she re-
canted her December 1985 testimony or signed the Decem-
ber 15, 1987 affidavit (R. Exh. 8).
The bench deferred ruling on the admissibility of Re-
spondent’s Exhibit 8 until his receipt of the briefs from re-
spective counsel with respect to admissibility under the Rules
of Evidence.
Counsel for Acting General Counsel then conditionally
moved for the admission of Musa’s March 5, 1988 affidavit
(G.C. Exhs. 13a and b), if Musa’s December 15, 1987 affi-
davit will be admitted in evidence. Respondent did not re-
spond to the latter conditional motion by counsel for Acting
General Counsel. Apparently, Respondent did not know
counsel for Acting General Counsel had an affidavit taken
from Musa subsequent to her December 1987 statement
which Rico said she gave to him.
An examination of Rule 804(b)(3) of the Rules of Evi-
dence shows that Respondent’s Exhibit 8 (Musa’s December
15, 1987 affidavit) is not admissible because, as previously
found above, Respondent has not creditably established that
Musa is unavailable to testify. That is, Respondent has not
exhausted sufficient, reasonable, and substantial efforts to lo-
cate and obtain Musa’s presence as a witness in this pro-
ceeding.
To the contrary, the foregoing credited evidence shows
that between January 10 and April 17, 1989, the extent of
Respondent’s efforts to locate Musa was to retain private in-
vestigator Cruz to search for and serve Musa with subpoena
to appear. However, the evidence shows that Cruz made an
effort to locate Musa only between January 10 and March 2,
1989, and on April 15 and 16, 1989. No effort was made by
him to locate Musa between March 2 and April 14, 1989,
even though his hottest unpursued lead reported Musa was
in the Vega Alta Baja prison. Cruz reported the latter infor-
mation to Respondent’s supervisor Jaime Rico. Cruz did not
contact the prison until April 15 and 16, 1989, and even
then, he only telephoned the prison a few times and did not
receive an answer.
The only other effort assertedly made by Respondent to lo-
cate Musa, according to the testimony of Supervisor Rico,
was his visit to the prison on Sunday, April 16, 1989, the
day before the hearing, and inquired of an unidentified per-
son who searched visitors whether a person named Raisa
Musa Quinones was there. When the person responded there
was no one there by that name, Rico left the prison and that
was the extent of his questionable and feeble effort to verify
whether or not Musa was there.
The record does not show that Respondent ever inquired
about police records, although it had reports that police were
looking for Musa relating to her involvement with drugs.
Under these circumstances, I am not persuaded that Respond-
ent exhausted reasonable and substantial efforts to locate and
serve Musa to appear at the hearing which Respondent re-
quested and knew was scheduled for April 17, 1989. Town
& Country Nursing Home, 291 NLRB 76 fn. 7 (1988).
Nor does the credited evidence of record show that Re-
spondent has satisfied the criteria of Rule 804(b)(5) Other
Exceptions, of the rules for the admissibility of the statement
(R. Exh. 8).
It is noted that Rule 804(b)(5) and its parts (A), (B), and
(C) are, by the language of this section, conjunctive. That is,
in addition to establishing that the statement has equivalent
circumstantial guarantees of trustworthiness, the court must
also determine that (A) the statement is offered as evidence
of a material fact; (B) that the statement is more probative
on the point for which it is offered than any other evidence
which the proponent can procure through reasonable efforts;
and (C) the general purposes of these rules and the interests
of justice will best be served by admission of the statement
into evidence.
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
An examination of the affidavits (R. Exh. 8 and G.C. Exh.
13) are as follows:
Respondent’s Exhibit 8
I, Raisa Musa Quinones reside at Lago Mar Condo-
minium, Apartment 6D in Isla Verde, Puerto Rico and
wish to inform the National Labor Relations Board of
the following:
I testified in the administrative case #24–CA–5160
held on December 16, 17 and 18, 1985 because my per-
sonal well-being and security were threatened by
Marilu Marquez and Gloria Garcia and I now wish to
correct my testimony declaring the following:
On May 1, 3, 1985 nor at any other time, did Jaime
Rico threaten me with retaliation or with rewards in re-
lation to my employment or union activities.
Jaime Rico did not tell me that it was not for my
benefit to participate in union activities.
Jaime Rico did not tell me that Gloria Garcia or
Marilu Marquez were involved with the union.
Jaime Rico nor any officer of Waterbed World has
pressured me nor has promised me anything of value so
that I would now make these declarations nor have I
been offered employment.
Jaime Rico did not tell me not to get involved with
the union.
AFFIDAVIT NUMBER; 1.343
SWORN AND SIGNED BEFORE ME BY: Raisa
Musa Quinones, who is of age, married, employed at
the Plannification Board and resident of Carolina, Puer-
to Rico, of whom I give witness of personally knowing
in this City of San Juan, Puerto Rico, today December
15, 1987.
JORGE ORTIZ MURIAS
Notary Public
General Counsel’s Exhibit 13
An examination of General Counsel’s Exhibit 13 reveals,
as counsel for the Acting General Counsel contends, that in
pertinent part, Musa stated in an affidavit given to General
Counsel March 5, 1988, as follows:
That I never signed a sworn statement or any other kind
of document in which I have changed my testimony at
the hearing. That to the contrary, that Jaime Rico had
been calling me on several occasions in order to talk
to me, something which I did not want to do, but that
I told Rico that what I had testified at the hearing and
in the sworn statement which I previously gave to the
National Labor Relations Board was the truth.
In the same affidavit, Musa further stated that around No-
vember-December 1987, after Rico continued to insist that
she talk with him, that he invited her to have dinner with
him and she refused. Later she accepted his invitation and,
accompanied by her husband, did go to the showroom of the
Respondent. There, she sat on a bed while Rico, standing,
asked her if Marilu Marquez or Gloria Garcia had made a
death threat. She replied, ‘‘yes, that on one occasion Marilu
had made me a death threat, but that it was on account of
some personal problems between her and me which had
nothing to do with the Union. The personal problems be-
tween Marilu and myself were that I had married Marilu’s
father, husband of Gloria Garcia [Marilu’s mother]. Rico
asked me if Marilu had threatened me on account of the
Union. I told him Marilu had not threatened me, that she had
spoken to me about the Union and that I was involuntarily.
During the conversation Rico did not ask me anything about
what I testified during the unfair labor practice hearing, nor
did he ask me anything about the conversations I had with
him on May 1 and May 3, 1985.’’
Conclusion
Considering both of the above affidavits (R. Exh. 8 and
G.C. Exh. 13) pursuant to Rule 804(b)(5)(A), (B), and (C)
of the Federal Rules of Evidence, I find that Respondent’s
Exhibit 8 does not have equivalent circumstantial guarantees
of trustworthiness because of Rico’s discredited testimony
and Musa’s subsequent (3/5/88) affidavit given to the Board
which contradicts the December 15, 1987 statement (R. Exh.
8); (A) that Respondent does offer Musa’s December 15,
1987 statement as a material fact; (B) that because Rico’s
testimony is not herein credited, and Musa’s alleged state-
ment in Respondent’s Exhibit 8 is not only excludable self-
serving hearsay, but also contradictory to her subsequent
sworn statement of March 5, 1988, and her original testi-
mony; and (C) that since Respondent’s evidence does not
satisfy Rule 804(b)(5)(B), the Court cannot apply (5)(C) of
the Rules, and admit Musa’s December 15, 1987 statement
on the basis that the general purposes of these rules and the
interest of justice will best be served by their admission.
That statement cannot be admitted because Rule
804(b)(5)(A), (B), and (C) by language in this section, is not
alternative but conjunctive in character. Respondent having
failed to satisfy (5)(B), it cannot avail itself of Rule
804(b)(5) of the rules. Consequently Respondent’s Exhibit 8
is not admissible under Rule 804(b)(5) of these rules.
However, because of the extensive and probably expensive
efforts made by Respondent to establish that Musa’s testi-
mony was untruthful, I, in the exercise of my administrative
discretion, am of the opinion that the purposes of justice in
this case will be best served by admitting both Respondent’s
Exhibit 8 and counsel for Acting General Counsel’s Exhibit
13 in evidence, so that they will be a part of the record, and
any reviewing tribunal to observe and determine whether the
two statements are in fact contradictory.
Accordingly, Respondent’s Exhibit 8 and counsel for Act-
ing General Counsel’s Exhibit 13 are admitted in evidence.
The Validity or Authenticity of the December
1987 Statement
Counsel for the Acting General Counsel also argues that
Respondent’s purported December 1987 affidavit of Raisa
Musa Quinones should be rejected because it was not exe-
cuted in compliance with Puerto Rico’s notarial law. In sup-
port of his position, he cites the law and argues as follows:
Section 887. Registry of affidavits or declarations of
authenticity–Definition
By affidavit or declaration of authenticity is meant
the act and the document by means of which a notary
or any other of the officers designated by sections 887–
597WATERBED WORLD
895 of this title certifies to, or witnesses the truth or
recognition of a signature, an oath, or any other fact or
contract affecting real or personal property not made in
a public instrument. Mar. 12, 1908, p. 39, Section 1,
eff. May 1, 1908.
Section 889. Form of affidavit or declaration; num-
bering
The affidavit or declaration of authenticity shall be
drawn in the following form. In the case of the recogni-
tion of a signature under oath:
Sworn to and subscribed before me, by llll
(name, age, trade or occupation and residence) person-
ally known to me (or who has been identified to my
satisfaction by the two witnesses, known to me, whose
statement to that effect is also signed by them), this, the
lll day of lll 19lll.
In the case of the recognition of a signature not
made under oath, the same form shall be used, except
that the words ‘‘sworn to’’ shall be stricken out.
A concise and simple form shall be used for all other
cases and which shall include the authenticity of the
act, but in all cases the officer authorizing same shall
set forth that he knows personally the interested party;
or knows the witnesses identifying such party. Affida-
vits or declarations of authenticity shall be numbered in
successive and continuous numbers and each declara-
tion shall contain at its head the number corresponding
to it and which shall be correlative with that of the
entry in the Registry, referred to hereinafter. Mar. 12,
1908, p. 39, Section 3, eff. May 1, 1908.
According to Professor Pedro Malaret Vega in its article
‘‘Notas sobre el Derecho Notarial Puertorriqueno:’’ pub-
lished in the Catholic University Law Review at page 243:
The word affidavit is a latin expression, and more
properly affidavit, that derives from affida, which
means I give faith. . . . An affidavit is a formal state-
ment of authenticity. It should be distinguished from a
sworn statement, because not all affidavits have sworn
statements, nor does all sworn statements appear in the
form of affidavits. However, an affidavit can include a
sworn statement; but there can be a statement of au-
thenticity of signatures without necessarily having a
swearing in . . . .
Thus, it is clear that the December 15, 1987 affidavit is
not an affidavit but rather is, at best, a statement of authen-
ticity.
Thereafter counsel for Acting General Counsel further ar-
gued that since Attorney Ortiz-Murias testified he did not
take an oath from Musa, the December 15, 1987 document
is, at best, simply a ‘‘statement of authenticity,’’ and that it
should be noted that in the December 1987 document, Attor-
ney Ortiz-Murias certified that he personally knows Musa.
Nonetheless, Attorney Ortiz-Murias testified under oath at
the hearing that he did not personally know Musa; and that
according to In Re Pedro Perez Rodriquez, Esq., 115 DPR
547 (1984), in which a notary had failed to use the proper
and reliable methods of identifying unknown persons, with-
out expressing that his attestation was based on attesting wit-
nesses, and untruthfully asserted that he knew the executing
party, the notary had failed to comply with the statutory re-
quirements.
Also, in In Re Raul Olmo Olmo, 113 DPR 441 (in the
English report at p. 568 Appendix C herein, pp. 590–591),
the Supreme Court stated:
Now then, if the notary lacks said information (per-
sonal knowledge of the affiant) he can resort to such
supplementary methods as the identifying witnesses, if
they, as the legal text states, are ‘‘persons well-known
to the notary.’’ What meaning does this repute have?
In discussing the problem, most commentators are in-
clined to sustain that a simple knowledge is not enough,
that a notary must adequately and satisfactorily know
the moral solvency of the witnesses since, what guar-
antee can the notarial authentication have if the notary
does not see as honest the witnesses who will supple-
ment his lack of knowledge?
Applying the above-cited legal authority to the facts in the
instant case, counsel for the Acting General Counsel main-
tains, and correctly so, that under the circumstances here, At-
torney Ortiz-Murias apparently did not exercise the kind of
cautious judgment that should have been exercised by a no-
tary. Here, it was Rico, Respondent’s chief witness, who was
trying to overturn testimony against himself because he
wanted to perpetuate the statement of authenticity; that it was
Rico who prepared the statement hopefully to exonerate him-
self from violation of law; and that it was Rico, who was
the only witness, that represented a young lady to Attorney
Ortiz-Murias as being Raisa Musa Quinones. Consequently,
it was Rico’s representation upon which Attorney Ortiz-
Murias was relying for an accurate and truthful identification
of the affiant of the statement, and more importantly, if the
statement was in fact signed by Musa, she would have been
committing perjury.
It is therefore clear that under the questionable cir-
cumstances of authenticating Respondent’s document (R.
Exh. 8), it was incumbent upon Attorney Ortiz-Murias, under
Puerto Rico’s law as a notary, to resort to supplementary
methods to identify the signatory of the statement (R. Exh.
8). Unfortunately, Attorney Ortiz-Murias admitted that he did
not attempt to obtain supplementary evidence to verify the
identity of the person represented by Rico to be Musa. Rico,
his friend, was the only witness to identify the affiant.
In this regard, counsel for Acting General Counsel also
supplies and refers to Puerto Rico’s Statement of Motives of
the Notary:
In this role, the Puerto Rico Notary is not a lawyer
for any one of the grantors, nor does he represent any
client whatsoever, he represents public faith, he rep-
resents the law to all parties. The main quality that dis-
tinguishes him from lawyers is his impartiality. Under
such conditions he must act at a level above that of the
parties involved.
Counsel for the Acting General Counsel also supplied and
cited the case of In Re Atty. Ormar Cancio Sifre, 106 DPR
386 (in English report at p. 452 Appendix D, where the Su-
preme of Puerto Rico held at p. 456):
598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 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 objec-
tions to them shall be deemed waived for all purposes.
Now then, if the notary lacks said information (per-
sonal knowledge of the affiant) he can resort to such
supplementary methods as the identifying witnesses, if
they, as the legal text states, are ‘‘persons well-known
to the notary.’’ What meaning does this repute have?
In discussing the problem, most commentators are in-
clined to sustain that a simple knowledge is not enough,
that a notary must adequately and satisfactorily know
the moral solvency of the witnesses since, what guar-
antee can the notarial authentication have if the notary
does not see as honest the witnesses who will supple-
ment his lack of knowledge?
Conclusion
It is clear from the above law that Attorney Ortiz-Murias
was obligated thereunder to certify that he knows the signa-
tory of Respondent’s Exhibit 8; or that two witnesses attested
that they knew and they identified the signatory; or that he
obtained supplementary evidence of the identity of the per-
son represented to be Musa, who signed the December 15,
1987 statement. This is especially so since he (Ortiz) was a
friend of the only witness and the procurer (Rico) of the
statement and did not personally know the identity of the sig-
natory. Additionally, since Attorney Ortiz-Murias did not as-
sure himself of the identity of the signatory of the statement
(R. Exh. 8) by more than one witness (only his involved
friend Rico), counsel did not comply with the above-cited ar-
ticle 16 of the notarial law. Consequently, Respondent’s De-
cember 15, 1987 statement is null and void and is rejected
for lack of authenticity and credibility.
I therefore conclude and find on all the credited evidence
of record that Respondent has failed to establish, by credited,
authentic, and probative evidence that witness Raisa Musa
Quinones recanted her testimony previously given and stated
that she lied about statements she attributed to Jaime Rico
about the union activity. In fact the record is replete with
credited evidence that Musa did not recant her December
1985 testimony in a December 15, 1987 statement given to
Supervisor Rico. Respondent has failed in its effort because
it has failed to produce witness Musa, and it has failed: (1)
to establish that witness Musa was unavailable to appear and
testify in this proceeding on April 17, 1989; (2) that Re-
spondent was unable to establish that Musa changed her tes-
timony in a subsequent validly executed affidavit or state-
ment of authenticity which is properly admissible in evidence
under the Federal Rules of Evidence; and (3) that Musa’s
statements in her affidavit given to the Board on July 17,
1985, are consistent with her testimony of December 1985
and her statements in her affidavit of March 5, 1988; and (4)
that Musa’s statements in an apparently valid affidavit subse-
quently executed on March 5, 1988, clearly contradicts the
statements in Respondent’s invalidly executed, inadmissible
and self-serving hearsay statement of December 15, 1987 (R.
Exh. 8).
Consequently, I find that Quinones’ December 1985 testi-
mony remains credited as previously found by the under-
signed because Respondent has failed to produce the witness
(Raisa Musa Quinones), it has failed to establish that she is
unavailable, and it has not offered a justifiably admissible af-
fidavit or other credited evidence to support its assertion that
she lied in testifying, and has since recanted her testimony.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
Accordingly, Respondent has failed to present any credible
evidence which warrants a change in the findings or the
issued decision, based on the testimony of Raisa Musa
Quinones.