Intl. Wire Products Co.

National Labor Relations Board - Board Decisions

Apr 15, 1980

248 N.L.R.B. 1121 (N.L.R.B. 1980)

INTL. WIRE PRODUCTS COMPANY 1121
International Wire Products Company, a Division of
the Carlisle Corporation and Abraham Lopez.
Case 22-CA-8101
April 15, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On January 10, 1979, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administra-
tive Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs' and has decided to affirm the rulings, find-
ings, 2 and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge concluded that
Respondent discharged employee Abraham Lopez
because of his union activity, thereby violating Sec-
tion 8(a)(1) and (3) of the Act. Respondent has ex-
cepted to that finding. We find merit in Respon-
dent's exceptions.
The issue is whether Respondent discharged em-
ployee Abraham Lopez because he attempted to in-
terfere with and restrict the production of employ-
ee Munir Hajismaiel, or whether this proffered
reason was pretextual. The Administrative Law
Judge concluded that Respondent discharged
Lopez because of his prior union activity, and
thereby violated Section 8(a)(1) and (3) of the Act.
We find merit in Respondent's exceptions to this
finding.
As more fully set forth in the Administrative
Law Judge's Decision, Lopez had been active as a
' Respondent has requested oral argument. The request is hereby
denied as the record, exceptions, and briefs adequately present the issues
and positions of the parties.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing her find-
ings.
At one point in her Decision, the Administrative Law Judge inadver-
tently stated that the conference attended by Union President Ahraham
Lopez, Union Vice President Victor Lopez, Union Secretary Orlando
Gonzalez, Union Treasurer Israel Rodriguez, International Representa-
tive Chester Wierzbowski, Personnel Manager Pierce, and employee
Marcelino Acevedo took place on December 2, 1977. As she correctly
found elsewhere, the conference took place on December 6, 1977
248 NLRB No. 146
union steward for several years prior to his dis-
charge on December 12, 1977.3 As a result of
Lopez' conduct at grievance meetings and other
union activities, Respondent's personnel manager,
Pierce, concluded that Lopez was "very emotional
and a hothead," 4 and, at a September meeting with
then Union President Kalish, asked the latter to re-
place Lopez as shop steward or to add another
shop steward on Lopez' shift. Kalish, however, re-
tained Lopez as a steward, and was succeeded by
him as union president in the November 20 election
of union officers. 5 Before the election, Kalish in-
formed Pierce that Lopez was likely to run for
office, and Pierce replied that, if Lopez became
president, he expected problems, and foresaw bad
times for both the Union and the Company because
Lopez was so emotional.
After Lopez was elected president of the Union
Local, he had several conversations with employee
Munir Hajismaiel during which they discussed the
number of machines Hajismaiel was operating. The
first occasion was on November 30 or December 1,
when Lopez asked Hajismaiel in English 6 why he
was operating 16 machines. (The average employee
operated eight machines.) Hajismaiel said he had
been told to do so by his foreman. Lopez replied,
"No, you work just 8 machines." The second inci-
dent occurred the following day. Lopez ap-
proached employee Mahmound Odeh, who speaks
Spanish but whose native language is arabic, and
askedOdeh in Spanish to tell Hajismaiel not to
work too many machines. Odeh relayed this mes-
sage in Arabic to Hajismaiel. Then, Lopez ap-
proached Hajismaiel, who at the time was working
12 machines, and said in English, ". . . slow down
8 machines just-slow down. No more eight ma-
chines-no more machines just eight machines."
Again, Hajismaiel replied that his foreman had told
him to work more. A few minutes later, Hajismaiel
and Odeh approached Lopez. On being asked by
Lopez how many machines he was then operating,
Hajismaiel truthfully said eight. Lopez then said he
was going to bring Hajismaiel a union card to sign,
and that, if anyone told him to work more than
eight machines, he was to tell Lopez. 7
' All dates are 1977 unless otherwise indicated.
4 Lopez also had developed an aversion to Pierce, in part because he
thought Pierce did not respect Hispanics or pay attention to their prob-
lems in the plant. As a result, after April 1977. Lopez rarely met with
Pierce regarding grievances, and had Union President Kalish handle such
matters when necessary.
s Kalish was not a candidate for office in this election.
Lopez and Hajismaiel both spoke English poorly, but it was the onl 5
language the3, had in common: Lopez' native language is Spanish and
Hajismaiel's Arabic
I Additionally, on December 2. Shop Steward Vizuete told Hajismaiel,
"Please, my friend, don't get ill trouble with your friends Work the ma-
chines you have to work." Hajismaiel continued to work without re-
Continued
1122 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
After these conversations with Lopez, Hajismaiel
reported to Foreman Melton that "the union" had
complained to him about the number of machines
he was running.8 Melton relayed this information
to Pierce, who replied that he would go see Hajis-
maiel, and immediately left his office to do so.
A few days later, on the morning of December
6, 9 Pierce met with Lopez, the other newly elected
officers, and a representative of the International
Union to discuss several matters. During the course
of this meeting, Pierce stated that Hajismaiel had
complained to him that Lopez had "threatened"
him about running 10 machines. After Lopez
denied having made this threat, the parties pro-
ceeded to discuss other matters. The meeting con-
cluded about 3 p.m.
That evening, Pierce called a second meeting
specifically to confront Lopez with Hajismaiel's ac-
cusations. In addition to Pierce and Lopez, others
at the meeting were Vizuete, acting as shop ste-
ward and interpreter,' 0 Hajismaiel, and Robert
Hoogstra, plant manager. During the meeting,
Pierce or Hoogstra said that Hajismaiel had com-
plained that Lopez told him "not to run so many
machines," that Hajismaiel said that Lopez was
upset with him for running more than eight ma-
chines, and that Lopez had spoken to him three
times about the matter. Lopez again denied the
charges and said Hajismaiel was lying. Hoogstra
and Pierce replied that Lopez was lying, that
Lopez was interfering with production, and that he
had no right to do so. When Vizuete told Hoogstra
that it was he and not Lopez who had talked with
Hajismaiel about the machines, Hoogstra told
him that he had "better watch out," and that it was
Lopez and not Vizuete who had spoken to Hajis-
maiel. Toward the end of the meeting, Hoogstra
stated that Lopez was going to be suspended pend-
ing further investigation. Hoogstra gave Vizuete a
completed form entitled "Warning Notice," which
had been prepared prior to the meeting. The form
stated that Lopez had violated three plant rules. 2
sponding On hearing reports that Hajismaiel as working extra ma-
chines, Iopez ha.d asked Vizuete to check on the matters, although he
did ot say anylhing about Vizuetc discussing's he matter with Hajis-
maiel ) Vizuele reported what had transpired to l.opez.
* lajismaiel did not mention Lopez by name.
A one pointl In her Decision, the Administritive Law Judge incor-
rectly stated that this meeting occurred on December 2
0 'he Admlinistratise l.aw Judge found that management asked Vi-
zuete to attend hbecause he was the shift shop teward and the meeting
couldl lead to a discharge.
' See ili. 7 he record does not show whether \izuete twas aware ot
the Lopez-Hajismaiel conversations.
Reproduced on the form were the plait rules involved
#1S Interfering with the fellow employees or supervisors in the
performance of' their duty
#17 Insubordinate conduct or refusal to follow foremans [sic] le-
gitimate orders
Lopez signed the form under protest after Hoog-
stra threatened Lopez with discharge if he did not
sign. On December 8, a meeting was held among
Pierce, Hoogstra, Lopez, Wierzbowski, the Inter-
national representative, and a bilingual employee,
acting as translater. At the meeting, Lopez filed a
grievance, and Wierzbowski made an unsuccessful
attempt to settle the dispute. Respondent alleged
that Lopez had admitted that he had told Hajis-
maiel not to operate so many machines, and that
Lopez' conduct violated the no-strike clause of the
collective-bargaining agreement. 3 Lopez denied
having the conversation with Hajismaiel or having
told management that such conversation occurred.
Pierce and Hoogstra said that, if Lopez was going
to lie abut the matter, there was no reason to pro-
ceed further. The meeting ended with Wierzbowski
arguing against discharge, and Respondent indicat-
ing the Union would be advised of the decision on
December 12. On December 12, Respondent decid-
ed to discharge Lopez and so advised him on or
about December 15.
The Administrative Law Judge dismissed as a
pretext Respondent's claim that Lopez was dis-
charged as a result of his conversations with Hajis-
maiel, and found instead that Respondent dis-
charged Lopez because it ". . . resented some of
his prior protected activity unrelated to Hajis-
maiel's workload and wanted to avoid further deal-
ing with Lopez as union president." We disagree.
While Pierce entertained hastile feelings toward
Lopez for personal and arguably antiunion reasons,
this attitude itself gives rise to no more than a sus-
picion that Respondent's subsequent discharge of
Lopez may have been discriminatory. We are
unable to conclude that the discharge was pretex-
tual, inasmuch as we are convinced that Lopez
lawfully was discharged for having attempted to
#26 An employee shall not restrict production or interfere with
others in the perfornmance of theirjobs -- or engage or participate in
iany uauthorized interruption of work or production
: Ihis clause states, in part
(A) he Union agrees that it will not encourage. sanction or ap-
prove any strike, stoppage, slowdown, or other interruption of work
growing out of any dispute which is subject to the grievance proce-
lure under the terms of this Agreement. On the contrary, the Union
will actively discourage and endeavor to prevent or terminate any
strike, stoppage, slowdownr or other interruption of work growing
out of any dispute during the life of this Agreement. Upon written
lnotice to the International Union, the InternationalUnion will imme-
diately notifS the parties engaging in the violation of this provision,
Ihat the strike stoppage, slowdown, or other interruption of work is
unauthorized and the Union will make immediate efforts to return
the strikers to their respective jobs and shall request the strikers to
cease any action which may aflect production.
(C) Should any employee or group of employees fail to report to
work after being niotified by the Union to do s the Employer shall
have the right to summarily discharge the aforesaid employee or
groups of employees
INTL. WIRE PRODUCTS COMPANY 1123
interfere with the production of another employee.
The record is devoid of even a hint that until the
Hajismaiel incident Respondent was giving any
consideration whatsoever to discharging Lopez as
a response to his union activities. On the contrary,
Respondent's complaints concerning Lopez arose
from Respondent's attempts to work with Lopez
during the time he was shop steward. Respondent
may have been concerned that Lopez would not be
as easy to deal with as his predecessor as union
president. However, there is little here to indicate
its fears were so great that it would discharge
Lopez because he became president when it toler-
ated him as union steward. Thus, Respondent's fail-
ure to take action against Lopez when he had long
revealed himself as an aggressive advocate of em-
ployees' interests is indicative that Respondent was
willing to work with Lopez, and we conclude that
Respondent has not been shown to have harbored
union animus. Moreover, while the discharge coin-
cided with Lopez' elevation to union president, it
also coincided with the Lopez-Hajismaiel conversa-
tions. As a result of conversations with Hajismaiel,
Respondent concluded that Lopez had violated the
above-cited plant rules and the bargaining agree-
ment's no-strike clause 4 by admonishing Hajis-
maiel to limit his production.' 5 Respondent acted
promptly to counteract this attempt to limit pro-
duction, and, accordingly, we draw no adverse in-
ference from the timing of the discharge. We con-
clude that the Lopez-Hajismaiel conversations
were Respondent's sole reason for discharging
Lopez, and that this reason was not pretextual.'
Having so concluded, it remains to be decided
whether Lopez' statements to Hajismaiel were pro-
tected. We find they were not. The General Coun-
4 The fact that Respondent first referred to the plant rules on Decem-
ber 6, and then to the no-strike clause on December 8, is not indicative of
shifting reasons for the discharge which would warrant a finding of pre-
textual motivation, as both the plant rules and the no-strike clause are
concerned with interference with production.
Is In the section entitled "Analysis and Conclusions," the Administra-
tive Law Judge found that Pierce developed only a suspicion that Lopez
was the source of Hajismaiel's complaint that "the union" had said he
was running too many machines, and that this suspicion was based on an
inference drawn from other complaints by Lopez regarding Hajismaiel,
expressed to Respondent at the first meeting on December 6. This con-
clusion is grounded on her earlier factual findings in which she discredit-
ed the testimony of Hajismaiel, Hoogstra, and Pierce that Lopez had
been specifically identified as the source of Hajismaiel's complaint In
view of the Administrative Law Judge's finding that Lopez did have sev-
eral conversations with Hajismaiel about the number of machines he was
running, as well as her finding that Pierce, upon being informed of Hajis-
maiel's complaints, said that he was going to see Hajismaiel, we find it
reasonable that Pierce suspected that Lopez was the cause of Hajismaiel's
complaints, and thereafter took steps to ascertain whether this was the
case.
is This finding is further supported by Hoogstra's stern warning to Vi-
zuete during the second December 6 meeting after Vizuete volunteered
that it was he and not Lopez who had spoken to Hajismaiel. Although
Hoogstra disbelieved Vizuete's statement, his warning that Vizuete had
"better watch out" was a clear indication that Respondent considered
that such involvement would warrant disciplinary action
sel, in his brief, asserts that "concern about work-
load is a legitimate concern of a union representa-
tive" and from this concludes that Lopez' conver-
sations with Hajismaiel were thereby protected. Al-
though we agree with the General Counsel's initial
proposition, there is a great difference between
"concern about the workload" (i.e., interest in the
work requirement imposed on an individual em-
ployee-a subject about which a union and em-
ployer can bargain) and, as here, a union presi-
dent's admonitions against operating more than
eight machines, a direct violation of the collective-
bargaining agreement. In the former circumstance,
employees are merely discussing a matter of mutual
concern with a fellow employee, that is, how much
each employee is required to do; while, in the
latter situation, an employee is being encouraged to
engage in unprotected activity.17 Thus, when Re-
spondent discharged Lopez for instructing Hajis-
maiel to slow down, it lawfully discharged him for
engaging in unprotected activity. Accordingly, we
shall dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
II Compare Midwest Precision Castings Company, 244 NLRB No 63
(1979), a case involving the discharge of a union steward for suggesting.
albeit in a joking manner, that an employee slow down The Board dis-
missed the 8(aX3) allegation and found that it was not unreasonable for
the respondent therein to iew the steward's comment to the employee in
a more serious manner than similar comments made by regular employ-
ees. Member Penello notes that he concurred separately in Midwest Preci-
sion Castings Company. supra, relying upon his dissenting opinion in
Gould Corporation. 237 NLRB 881 (1978). enforcement denied 103
LRRM 2207, 87 LC 11.866 (3d Cir. 1979). In adherence to his analysis
of the law as set forth in both of those opinions. Member Penello again
emphasizes his views that an employer can lawfully hold a union steward
to a higher standard of conduct than other employees because of the ste-
ward's responsibilities under the contract. Thus, an employer can lawful-
ly discipline a steward for participating in an unprotected strike or slow-
down by not attempting to bring such a work stoppage to an end .4 for-
tiori, where as in this case, the steward has deliberately shirked his re-
sponsibilities by actively urging a fellow employee to engage in an unpro-
tected slowdown, the steward can be lawfully disciplined by the employ-
er.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
case was heard at Newark, New Jersey, on August 7
through 10, 1978, pursuant to a charge filed on Decem-
ber 12, 1977, and a complaint issued on February 15,
1978. The question presented is whether International
Wire Products Company, A Division of The Carlisle
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corporation (Respondent),l violated Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended (the
Act), by discharging employee Abraham Lopez.
Upon the entire record, including my observation of
the witnesses, and after due consideration of the briefs
filed by counsel for the General Counsel (the General
Counsel) and by Respondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation, maintains an
office and place of business in Wyckoff, New Jersey,
where it manufactures, sells, and distributes wire prod-
ucts and related products. During the year preceding the
issuance of the complaint, a representative period, Re-
spondent shipped products valued in excess of $50,000
from its Wyckoff plant directly to States other than New
Jersey. I find that, as Respondent admits, it is engaged in
commerce within the meaning of the Act, and that asser-
tion of jurisdiction over its operations will effectuate the
policies of the Act.
United Rubber, Cork, Linoleum and Plastic Workers
of America, Local 999, AFL-CIO (the Union), is a labor
organization within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For several years, the Union has represented the 160
to 180 employees in Respondent's plant. About half of
them speak Spanish as a native language.
Abraham Lopez (herein sometimes called Lopez) 2 was
hired by Respondent in 1970. In 1975, he was elected to
serve as shop steward on the third shift, 4 p.m. to mid-
night. While he was shop steward Hispanics from all
three shifts came to him with their grievances because
his native language is Spanish and the other shop ste-
wards were English-speaking.
In January 1977, 3 Al Doose was replaced as personnel
manager by Wayne Pierce. At or about the same time,
Respondent began to follow a stricter absentee policy
than had previously been observed. Shortly after becom-
ing personnel manager, Pierce canceled Respondent's
prior policy, adopted at the Union's request, of giving
warnings for absenteeism in Spanish as well as English;
Pierce maintained that the employees understood English
well enough to make bilingual warnings unnecessary.
In early January, after Pierce became personnel man-
ager, a majority of the employees went out on a strike
which was not authorized by the Union's parent Interna-
tional, and which, the General Counsel concedes, was
not protected by Section 7 of the Act. Among the par-
ticipants in this strike were Lopez and Stanley Kalish,
who at that time was a steward and the union secretary.
Upon returning to work, Kalish and all the other officers
and stewards, except Lopez, were required to and did
sign, before punching in, the following document:
The name of Respondent appears as amended at the hearing.
2 Another employee with the same surname is referred to herein by his
full name.
3 All dates hereafter are 1977 unless otherwise indicated.
January 18, 1977
To: Officers and Stewards of Local 999
[Employee's name]
I hereby acknowledge that my return to work is
under the following conditions:
I. My absence during the unauthorized strike will
be recorded in my personnel records. In lieu of the
Company's right to suspend or discharge, the penal-
ty is converted to a status of probation of six (6)
months from this date.
2. If, during the probationary period, I am found
in violation of the Company rules or obligations
under the Union Agreement, I may be subject to
discharge.
I acknowledge this is a reprimand for conduct in-
consistent with the terms of the Union Agreement.
I understand that my role of leadership and respon-
sibility requires exemplary conduct, and that the
Company will hold me in strict accountability for
such conduct for a period of one (1) year from this
date.
[EMPLOYEE'S SIGNATURE]
All the other strikers, including Lopez, were required to
and did sign a document which was like the foregoing
except that the final paragraph was omitted. Lopez
urged the other employees to sign this document. On an
undisclosed date thereafter, not claimed to be within the
limitations period imposed by Section 10(b) of the Act,
Respondent directed Lopez to sign the document speci-
fying a -year "strict accountability" period. Lopez re-
fused, whereupon Respondent suspended him. After a 5-
day suspension, Lopez signed and was permitted to
return to work. Lopez was the only employee who re-
fused a request to sign this "strict accountability" docu-
ment.
The record fails to show whether Lopez was a leader
in the strike. Pierce testified that Lopez was given a
longer probationary period than other strikers because of
his "leadership" in the strike rather than because of his
status as a steward. I do not credit Pierce's testimony in
this repsect because the document is addressed to "Offi-
cers and Stewards," and because Secretary-Steward
Kalish was required to sign it even though he was not on
duty when the strike began, worked his first full shift
after the strike began, and did not join the strike until
after receiving "some type of explanation" the day after
it started.4 Nor is there any evidence that any union offi-
cers or stewards were permitted to sign the document
without the "strict accountability" clause, or that any
others were required to sign that document.
Respondent's contract with the Union was due to
expire by its terms on May 1. About mid-April, the
Union obtained a strike approval vote. On April 30, the
Union held a membership meeting at which an agree-
ment reached between Respondent and the negotiating
4 However, Kalish was on the committee that met with Respondent's
representatives to discuss why the employees had walked out and under
what conditions they would like to come back.
INTL. WIRE PRODUCTS COMPANY 1125
committee was submitted to the membership. During this
meeting, Lopez and Jose Perez were the two employees
who most strongly urged the members to reject the con-
tract.5 The contract was approved by a majority of four.
Later, in May or June, Kalish, who by that time had
become union president, told Personnel Manager Pierce
that Lopez and Perez had opposed ratification of the
contract. Kalish gave no other names.6
During the latter portion of the term of the bargaining
agreement which expired in April 1977, the Union's
parent International supplied Spanish translations of the
agreement. During the negotiations which led up to the
succeeding contract, the parties orally agreed that the
union president was to prepare a Spanish translation of
the new contract. However, as of the August 1978 hear-
ing, no translation had been prepared.
When Lopez was advised of grievances by employees
on his own (third) shift, he first spoke about them with
the third-shift foreman, Jose Enchinique, whose native
language is Spanish. When Enchinique was unable to
adjust the grievance, Lopez brought the grievance to the
personnel manager's attention; this practice required
Lopez to go to the personnel manager's office about two
or three times a week. ? During such conferences, Pierce
repeatedly expressed annoyance, on the ground that
Lopez knew how to speak and understand English, with
Lopez' practice of always bringing a bilingual employee
as an interpreter. About mid-April, Lopez concluded
that Pierce was not paying attention to the problems
which Lopez was presenting and was laughing at "us"
because "they" were Hispanic. Thereafter, Lopez hardly
ever met with Pierce, 8 and instead told Union President
Kalish, through an interpreter, about third-shift griev-
ances which the foreman could not adjust; such griev-
ances were thereafter processed by Kalish. Lopez had
apparently followed this procedure at all times with re-
spect to grievances which arose on other shifts where
the foremen were English-speaking.
Kalish became union president at the end of May be-
cause he had previously been elected secretary, the presi-
dent resigned, and the vice president did not want to
become president. As president, Kalish faced resentment
within the Union flowing from the narrow margin by
which the contract had been approved and a large
number of grievances which had been pending for a rela-
tively long time. The employees who were particularly
6 This finding is based on Kalish's testimony and on Lopez' testimony
during direct examination. On cross-examination, Lopez denied trying to
dissuade other employees from signing the contract, and testified that
"possibly" Kalish would be wrong in testifying that Lopez was trying to
dissuade employees. On redirect examination, Lopez testified that during
the meeting he gave his "opinion" regarding the ratification issue.
a My findings in these two sentences are based on Kalish's testimony
For demeanor reasons, I do not credit Pierce's testimony that until the
hearing he did not know that Lopez had opposed ratification of the con-
tract. Pierce did testify to having been advised by the Federal mediator
that the contract had been ratified by a close margin.
I My finding in this sentence is based on Lopez' testimony For demea-
nor reasons, I do not accept Personnel Manager Pierce's somewhat
equivocal testimony otherwise.
s So far as the record shows, when acting as steward, Lopez met with
Pierce on only two occasions after mid-April. On one of these occasions,
involving (inter alia) the discharge of Feliz Garcia, then-Union President
Kalish later complained to Pierce that he had called in Lopez too late
(see infra).
vocal in their opposition to the contract, to Respondent,
and to Kalish were Lopez and Perez. About July, during
discussions regarding a safety shoe program to which the
membership (particularly Lopez and Perez) had voiced
objections at union meetings, Kalish told Pierce that
Lopez and Perez were one of Kalish's "main problems"
in getting the membership's approval. Pierce said that
Lopez was "very emotional and a hothead" and that
Kalish should try to handle him. On several other occa-
sions, Pierce described Lopez as "a hothead and emo-
tional," at least partly because of his objections to ratify-
ing the contract.
In 1977, Respondent's employees worked on most Sat-
urdays, for which they were paid at overtime rates. In
scheduling Saturday work, for which employees are se-
lected the preceding Thursday, Respondent tried to dis-
tribute this overtime work among the employees equally.
However, because the collective-bargaining agreement
required the presence of a shop steward whenever any
part of the plant was in operation, Kalish and Lopez, the
only shop stewards on the first and third shifts, respec-
tively, received more overtime work than the other em-
ployees. Pierce testified that employees in the respooling
department complained to him that Lopez was getting
more than his fair share of overtime work.9 Because of
Lopez' status as shop steward, he was assigned to per-
form overtime work on the 4-to-12 shift on Saturday,
October 1, but failed to report for work. In consequence,
the shift had no steward and, in addition, was shorthand-
ed. On the following Monday, October 5, Pierce called
to his office Lopez and Efrain Gonzalez, one of the two
shop stewards for the 8-to-4 shift. Pierce told Lopez to
come to work on Saturday if he said he was coming to
work. Further, Pierce said that both stewards were "to
check with their foreman when one cannot make Satur-
day overtime." Also, Pierce told these two stewards that
they "should be switching off with [each other so] as not
to create a hardship on the Drawing and Respooling De-
partments." Pierce asked them to contact Kalish "and re-
solve the problem, possibly with another steward on the
4-12 shift, spreading overtime more equitably."
Later that week, Lopez asked to be assigned to work
on Saturday, October 8. However, on October 8 he did
not show up. Some of the employees complained to man-
agement that another employee could have come in and
worked and made some extra money that day. Also, on
or about October 18, a grievance was filed against Re-
spondent complaining that no shop steward had been on
duty while the 4-to-12 shift was working on Saturday,
October 8, and requesting overtime pay for the second-
shift steward, Gonzalez. During the discussion of this
grievance, which Pierce eventually denied, Pierce asked
Kalish to add a second steward for the 4-to-12 shift. In
support of this proposal, Pierce said that a second ste-
ward would help to assure the presence of a third-shift
steward during Saturday operations, and would also help
satisfy the complaints of the employees on that shift
about the unequal distribution of overtime. Kalish replied
9 Then-Union President Kalish credibly testified that he had never re-
ceived any such complaints about Lopez' overtime, or like complaints
about the fact that Kalish, as the only shop steward on the 12-to-8 shift,
also received more overtime than others.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the number of stewards was none of Respondent's
business, and "I couldn't just appoint a shop steward just
to distribute overtime. I had to have an officer to work
and not just to distribute money as overtime."' 0
On September 22, Pierce had occasion to perform cer-
tain functions on the shop floor with the assistance of
employee Marcus Herbert, who frequently served in the
plant as a Spanish-English interpreter. While they were
engaging in this activity, Pierce saw employee Feliz
Garcia and motioned him to come over and speak to
Pierce. Garcia ignored the motion. Pierce and Herbert
both followed and called to Garcia, but he walked away
from them, sat down, looked at them, and smiled. Pierce
told Garcia to come over and speak to him. Garcia told
Pierce to come over to Garcia. Pierce advised Herbert
that "this attitude was going to have to stop." After that,
Herbert (in accordance with Pierce's implied instructions
to him, and partly in Spanish) and Pierce both unsuccess-
fully tried, on threat of discipline, to induce Garcia to
come to Pierce's office. Eventually, an unidentified em-
ployee did induce Garcia to do so. Then, Pierce directed
Herbert, Lopez, and Foreman Willie Melton to come to
Pierce's office. In Pierce's presence, Lopez and Herbert
advised Garcia to stop acting insubordinate to Pierce.
Then Garcia was advised that he was being suspended
pending a final decision the next day about what action
would be taken. The following morning, September 23,
Pierce told Kalish that Garcia had been terminated.
When asked about the foregoing September 22 meeting
in his office, Pierce initially testified that Lopez conduct-
ed himself "very well." Pierce went on to testify that
Lopez was initially "excited" and "emotional" but "gave
up after a certain point," that Lopez was "huffy" toward
someone, and that Lopez engaged in a Spanish conversa-
tion which eventually calmed down Garcia, who had ini-
tially appeared "one step above violence." Pierce further
testified that, during this meeting and others involving
the conduct of union business, Lopez pointed his finger
and raised his voice.
On an undisclosed date between September 23 and Oc-
tober 4, probably about September 29, a grievance was
filed attacking Garcia's termination. On an undisclosed
date in late October or early November, Manufacturing
Manager Robert Hoogstra, Pierce, Kalish, Lopez, and
Herbert (acting as interpreter) met to discuss that griev-
ance and another pending grievance attacking the
August 16 termination of employee Manuel Buduan.
Management rejected both grievances, at least partly on
the ground that they had not been signed by the griev-
ants. Pierce testified that, during this meeting, Lopez was
"too emotional," and that others' discussions "couldn't
o1 My findings in the last three sentences are based on a composite of
credible portions of Kalish's and Pierce's testimony. I believe Kalish was
mistaken in testifying that during this conversation Pierce proposed the
alternative of replacing Lopez as shop steward. Such action would have
contributed nothing to the overtime-distribution problem, which I believe
was Pierce's principal (if indeed not only) motive at that time for propos-
ing an additional third-shift steward. While it is true that Pierce did not
request the addition of stewards on the other shifts, the second (8-to-4)
shift already had two stewards, and there is no evidence that the first and
second shifts ever operated overtime without a steward or that anyone
on these shifts ever complained that the stewards were receiving too
much overtime.
be rational because [Lopez] was interrupting." The
record otherwise fails to show what happened. After
Lopez and Herbert left, Kalish reproached Pierce for
failing to initially bring in Lopez to solve the Garcia
problem, and instead asking Herbert, who was not a
union official, to go with Pierce to talk to Garcia. Pierce
replied that he did not think Lopez was able to handle
the problem because he was emotional and did not un-
derstand English well enough, that Herbert spoke both
English and Spanish, and that Pierce was afraid Lopez
would create more of a problem on the floor. Kalish said
that Lopez had indeed been very emotional at the meet-
ing which had just ended. Pierce said that Lopez was
causing problems for both Kalish and Respondent be-
cause Lopez was so emotional, and asked Kalish to re-
place Lopez as shop steward or add another shop ste-
ward on Lopez' shift. Pierce said that such action would
also help to deal with the employees' complaints regard-
ing overtime distribution." Kalish, who was unsure
whether he would run for office in the forthcoming
union election, and Pierce discussed who would likely
run for union president. Kalish said that he understood
Lopez would run for that office. Pierce said that, if
Lopez became president, Pierce expected problems, ex-
pected that the Union would have trouble, and expected
that the Spanish-speaking employees would have to
"straighten out, they can't think they'd run the plant"
(infra, fn. 13). Later, Herbert told Lopez (inferentially in
Spanish) that Kalish (who speaks very little Spanish)
asked Herbert to report to Lopez that Pierce had asked
Kalish to find a way to remove Lopez as shop steward
because he "was causing them problems," and Kalish
had replied he could do nothing because the workers
had elected him and only they could remove him.' 2
A few days later, during the first week in November,
Kalish went into Pierce's office to get a mailing list for
purposes of the union election and to obtain Pierce's ap-
proval of an election notice to be posted on company
bulletin boards. Pierce asked Kalish whether he was
going to run for president. Kalish said probably not be-
cause of "the problems [he] was having with the Union."
Kalish said that he had heard from the other members
that Lopez might run. Pierce said that he expected prob-
lems if Lopez became president, and foresaw bad times
I My findings in this paragraph up to this point are based on a com-
posite of credible portions of the testimony of Pierce, Lopez, and Kalish;
the documents prepared by Pierce in which he rejected the grievances;
and inferences from such testimony and documents I do not credit
Pierce's testimony, in effect, that the overtime problem was the only
reason he gave in connection with his request about Lopez for demeanor
reasons and because the context of the discussion affords no explanation
why the overtime matter would come up independently of Pierce's dis-
satisfaction with Lopez' conduct as steward. While the Union later added
a second shop steward to the third shift, this was done after Lopez
became president while also remaining as third-shift shop steward, and
pursuant to the suggestion of Kalish (who had previously acted as both
the sole shift steward and the union president), rather than the suggestion
tendered by Respondent I regard as confused, and do not accept, certain
portions of Pierce's testimony suggesting that Lopez did not attend the
Buduan-Garcia grievance meeting.
,2 The evidence summarized in this last sentence was offered only in
an effort to corroborate Kalish, and not otherwise to show the truth of
the matter asserted.
INTL. WIRE PRODUCTS COMPANY 1127
for both the Union and the Company because he Lopez
was emotional. 13
B. Lopez' Election as President; Subsequent Events
1. Lopez' election as president
Pierce testified that, while Kalish was president, Pierce
had a good professional business relationship with him. 14
At the union election held on November 20, Abraham
Lopez ran unopposed for president and was elected to
that office. Among other officers elected were Victor
Lopez (no relation to Abraham Lopez) as vice president
and Luis Vizuete as steward on the 4-to-12 shift. Neither
Victor Lopez not Vizuete had ever previously held
union office. The mother tongue of both is Spanish.
Victor Lopez speaks very little English, and Vizuete has
a limited command of that language.
2. Lopez' conduct in connection with the number of
machines operated by employee Hajismaiel
As of December 1977, employee Munir Hajismaiel
(also referred to in the records as "Mike") was classified
as a strander helper. Normally, the strander helpers and
strander operators each run a maximum of eight ma-
chines. Hajismaiel's foreman, Willie Melton, frequently
asked him to operate more than eight machines, and he
always operated the number requested. About Tuesday
or Wednesday, November 29 or 30, a number of employ-
ees in the stranding department failed to report to work
on the second shift because a flood had closed a road.
That day, Melton told Hajismaiel to operate 16 ma-
chines, and he did so.
A day or so later-about Wednesday, November 30,
or Thursday, December I-Lopez approached Hajis-
maiel. Lopez speaks English which is so poor that even
those who speak English as a native language have trou-
ble understanding him. Hajismaiel's native language is
Arabic, and he does not speak or understand English
very well. However, English is their only common lan-
guage. Lopez asked Hajismaiel, in English, "why [he]
work[ed] 16 machines." Hajismaiel replied that he did so
because his foreman told him to. Lopez replied, "No,
you work just 8 machines." On the day on which this
conversation occurred, Foreman Melton had told Hajis-
maiel to operate 12 machines. He in fact did so through-
out the day without changing his work pace. 15
On the following day-that is, either Thursday, De-
cember 1, or Friday, December 2-Lopez approached
's My findings as to Pierce's comments about the prospects of Lopez'
presidency are based on Kalish's testimony. Pierce testified that, during
conversations with Kalish which began about August, Kalish told Pierce
that he was having problems as union president and was not going to run
for union office. In view of this testimony by Pierce and for demeanor
reasons, I do not credit Pierce's testimony that he never talked with
Kalish concerning Lopez' election as union president.
i4 In view of Pierce's testimony in this respect, in view of the prob-
abilities of the situation, and for demeanor reasons, I do not credit
Pierce's testimony that the identity of the union president makes no dif-
ference to Pierce.
1s My findings as to the content of this conversation are based on Ha-
jismaiel's initial version on direct examination. I do not accept Hajis-
maiel's subsequent testimony that Lopez said Hajismaiel "must be work-
ing" eight machines for demeanor reasons and because he then testified,
"I remember he tell me just work 8 machines." See also, infra, fn. 16
employee Mahmoud Odeh, who speaks Spanish but
whose native language, like Hajismaiel's is Arabic. Lopez
asked Odeh in Spanish to tell Hajismaiel not to work too
many machines. Odeh relayed this message in Arabic to
Hajismaiel, who said to tell Lopez not to bother Hajis-
maiel, but to talk to the foreman. Odeh said, "Munir,
you're not union. Maybe you have some trouble. You
watch yourself." Then, Lopez approached Hajismaiel,
who at that time was working 12 machines, and said in
English, "Slow down eight machines just-slow down.
No more eight machines-no more machines, just eight
machines." Hajismaiel replied that his foreman had told
him to work more.' 6 Lopez then returned to his own
job station. During this conversation Hajismaiel's ma-
chines, which are very noisy, were in operation, and he
was wearing ear protectors, which (he testified) some-
what interfered with his ability to hear normal conversa-
tion. In order to enable himself to understand the prob-
lem which Lopez had brought to his attention, a few
minutes after Lopez returned to his work station Hajis-
maiel asked Odeh to come with him to talk to Lopez.
When Odeh and Hajismaiel came to Lopez' work sta-
tion, Lopez asked Hajismaiel how many machines he
was operating. Hajismaiel truthfully said eight. 7 Lopez
said that the following Monday he was going to bring a
union card for Hajismaiel to sign, 8 and that, after he
signed a union card, if anyone told him to work more
than eight machines, he was to tell Lopez.' 9 After the
conversation ended and Lopez returned to his work sta-
tion, Hajismaiel said to Odeh that Hajismaiel would
return to work after telling his foreman what had hap-
pened. Later, Lopez told Odeh that Lopez was going to
talk to the foreman on Monday, December 5. Robert
Hoogstra, Respondent's manager of manufacturing, testi-
fied that, on an undisclosed date between December 6
and December 12, Lopez' foreman, Enchinique, told
Hoogstra about "some conversation between [Enchini-
que] and Abraham [Lopez] about Abraham talking or
going to talk to [Vizuete] or going to talk to somebody
about he wanted to get to [Hajismaiel] and tell him [he]
was running too many machines.... [Lopez] left his
work area to talk to somebody and he did let them know
he was upset about that fact." 2 0 After the foregoing con-
versations with Lopez and Odeh, Hajismaiel continued
'6 My findings as to the contents of this conversation are based on
credited portions of Hajismaiel's testimony. At one point, Hajismaicl testi-
fied that Lopez told him, "[W]hy you work 16 machine? Everybody
work here 8 machine because everybody of the contract and union. Just
8 machine." It is unclear whether Hajismaiel was attaching this alleged
language to his first or to his second contact with Lopez. For demeanor
reasons, I do not accept Hajismaiel's testimony that Lopez made these
remarks.
'7 There is no contention or evidence that the decrease from 12 to 8
was attributable to any conduct by Lopez. Hajismaiel credibly testified
that he always worked the number of machines his foreman told him to
work.
1i The union cards contain a checkoff authorization. The contract con-
tains a 30-day union-shop clause, and in September, October, and No-
vember Respondent had advised the Union that Respondent had no
checkoff card from Hajismaiel. However, Hajismaiel was not yet a union
member and, so far as the record shows, had not yet been asked to join.
19 This finding is based on Hajismaiel's testimony. For demeanor rea-
sons, to the extent this testimony differs from his testimony elsewhere, I
believe this part to be more reliable.
20 Enchinique did not testify
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to operate at his prior pace the number of machines as-
signed to him by his foreman, Willie Melton. The follow-
ing Monday, December 5, Lopez gave a union card to
Hajismaiel, who did not sign it until several days later.
My findings about the contents of the conversations
between Lopez and Odeh are based on Odeh's uncontra-
dicted testimony. My findings about the conversations
between Odeh and Hajismaiel are based on a composite
of their uncontradicted testimony. While the General
Counsel's witnesses were in no position to controvert
such testimony, it seems consistent with the credible evi-
dence regarding other related events. My findings about
the Hajismaiel-Lopez-Odeh conversation are based on
credible portions of Hajismaiel's testimony. For demea-
nor reasons, I do not credit Lopez' testimony that he
never had any conversation with Hajismaiel regarding
the number of machines he was operating. For demeanor
reasons, and because Hajismaiel asked Odeh to attend the
Hajismaiel-Lopez-Odeh conversation for the very pur-
pose of acting as translator, I do not credit Odeh's testi-
mony that he did not hear what happened at this confer-
ence, and left the scene with Hajismaiel speaking Arabic,
which Lopez does not understand, and Lopez speaking
Spanish, which Hajismaiel does not understand. For de-
meanor reasons, including the fact that Hajismaiel im-
pressed me as subjectively confused, I do not credit cer-
tain portions of Hajismaiel's testimony suggesting that he
had a conversation with Lopez between the first and the
second Hajismaiel-Lopez conversations summarized
above.
Following the Hajismaiel-Lopez-Odeh conversation,
and a little before 5 p.m., Hajismaiel told Foreman
Melton that "the union had complained to [Hajismaiel]
that he was running too many machines." I accept Mel-
ton's testimony on redirect examination that Hajismaiel
made this report on a Friday; this would have been De-
cember 2.21 Melton asked who had said this to Hajis-
maiel. Hajismaiel replied "the union," and gave Melton
no names, either then or at any later time.2 2 Melton told
Hajismaiel that he should nonetheless do what Melton
told him to do, and Hajismaiel did so. Immediately fol-
lowing this conversation, Melton went to Pierce's office
and reported to him that Hajismaiel had told Melton that
"the union had complained that [Hajismaiel] was running
too many machines." Pierce said that he would go see
Hajismaiel, and immediately left the office.
My findings in the foregoing paragraph are based on a
composite of credible portions of the testimony of com-
pany witnesses Melton and Hajismaiel. Pierce testified
that he did not find out about the Lopez-Hajismaiel con-
versations until about 3:30 p.m. on Monday, December 5.
21 On direct examination, Melton testified, "I think it was on a
Monday" in November. On redirect examination, Melton testified, "I
think it was on a Friday. I'm not sure. I can't remember that good but I
think it was on a Friday." Hajismaiel testified that he thought his conver-
sation with Lopez and Odeh occurred on a Friday. For demeanor rea-
sons, I do not accept Hajismaiel's testimony-inconsistent with Melton's
testimony-that Hajismaiel's report to Melton was made on the same day
as the Lopez suspension meeting, described infra, on Tuesday, December
6.
22 This finding is based on Melton's testimony. For demeanor reasons,
I do not accept the suggestion in Hajismaiel's testimony that he named
Lopez. I note Hajismaiel's testimony that, before Lopez spoke to him, he
did not know Lopez' name.
Pierce testified that about that date and hour Melton
telephoned him that Hajismaiel was having a "problem"
whose nature Melton did not know and that Hajismaiel
was coming to see Pierce. Pierce went on to testify that,
about 3:45 p.m., Hajismaiel came into Pierce's office and
said, in English, that "on three occasions, the third occa-
sion being Friday, that Mr. Lopez had approached him
and asked him to stop running so many machines."
Pierce further testified that, later that day, he went to
Hajismaiel at his machines and told him that they and
Hoogstra would meet with Lopez to discuss the "prob-
lem." As previously noted, Melton in effect denied
Pierce's testimony that such a telephone conversation oc-
curred. Moreover, Hajismaiel testified that he had never
talked to Pierce alone. 23 Hoogstra and Pierce testified
that, during a conversation between them later that day,
they discussed Hajismaiel's alleged report about Lopez
and, without discussing the question of discipline, decid-
ed to have a meeting attended by all four of them. Hoog-
stra testified that, during this alleged conversation, Pierce
"indicated to me that [Lopez] had been talking to [Hajis-
maiel] about running too many stranders, running too
many machines, that he is running beyond his assignment
and that he should not run more than eight stranders."
Hoogstra further testified, in effect, that he did not find
out until December 6, the day after this alleged conver-
sation with Pierce, that Lopez had talked about this
matter with Hajismaiel on more than one occasion. For
demeanor reasons, and in view of the inconsistencies be-
tween Pierce's version of Hajismaiel's alleged December
5 report to him and Hoogstra's version of that report as
relayed by Pierce, as to the matters referred to in this
paragraph, I credit Melton and Hajismaiel, and discredit
Pierce and Hoogstra. Accordingly, I find that Pierce did
not have the foregoing alleged conversations on Decem-
ber 5 with Melton or Hajismaiel. Also, because of the in-
consistencies between Pierce's and Hoogstra's testimony
about the contents of their alleged December 5 conversa-
tion, and for demeanor reasons, I find that no such con-
versation occurred.
The eight machines normally operated by Hajismaiel
are in a single line. At an undisclosed hour on Friday,
December 2, two of these machines were "down," and
Foreman Melton instructed him to operate in their stead
two machines on another line, a total of eight machines.
Some of the other operators told Lopez that Hajismaiel
had been operating up to 16 machines and was then op-
erating 10 machines, 8 machines plus 2 that were "next
to" him. Lopez told Vizuete, a shop steward on that
shift, to see if this was true, but did not say anything
about talking directly to Hajismaiel. Inferentially, this
conversation took place in Spanish, the native language
of both men. Vizuete then approached Hajismaiel, while
he was working, and said, "Please, my friend, don't get
23 Pierce testified that, although a number of employees must have ob-
served his alleged December 5 conversation with Hajismaiel at his ma-
chines, nobody else heard it. This testimony aside, there is no evidence
that anyone else was present during that alleged conversation. When
asking Pierce about his alleged December 5 conversation with Hajismaiel
in the office, Respondent's counsel implied that Melton preceded Hajis-
maiel into the office, and Pierce did not indicate otherwise. This evidence
aside, there is no evidence that Melton, who did not testify about this
conversation, was present while it occurred.
INTL. WIRE PRODUCTS COMPANY 1129
in trouble with your friends. Work the machines you
have to work." Vizuete said this in English, which nei-
ther employee speaks nor understands very well, but
which is their only common language. Hajismaiel contin-
ued to operate all of his machines at his prior pace with-
out saying anything to Vizuete. Then, about 8 p.m., Vi-
zuete reported to Lopez that Hajismaiel was indeed
working more machines than the others. Lopez asked
whether Vizuete had spoken with Hajismaiel. Vizuete
said yes. Lopez asked what Hajismaiel had told Vizuete.
Vizuete said, "Nothing." Lopez said, "it is all right, the
International representative is coming on Tuesday, so I
[am] going to clear up this matter." 2 4
3. The December 6 conference between
management and union representatives, including
Lopez
At or about 11 a.m. on Tuesday, December 6, Respon-
dent met for the first time with the new union officers
who had been elected on November 20. The meeting
was attended by Union President Abraham Lopez,
Union Vice President Victor Lopez, Union Secretary
Orlando Gonzalez, Union Treasurer Israel Rodriguez,
International Representative Chester Wierzbowski, Per-
sonnel Manager Pierce, and Marcelino Acevedo, a bilin-
gual employee who frequently acted as a Spanish-Eng-
lish interpreter. Hoogstra also was briefly present. Pierce
complained that Union President Abraham Lopez had
failed to follow the previous practice of providing Pierce
with an agenda a day or two before the meeting. Wierz-
bowski told the officers to give Pierce an agenda the
next time.
The Union asked why Hajismaiel had not signed a
union authorization card as required by the union-shop
clause in the current contract. Pierce drew the employ-
ees' attention to documents showing that Respondent
had advised the Union on September 22, October 7, and
November 17 that Hajismaiel had failed to sign a check-
off authorization.2 ' Further, Pierce advised the Union
that former President Kalish had undertaken to supply
Respondent with all the authorization cards. Victor
Lopez asked why Hajismaiel had been hired for the third
shift when employees who were already working for Re-
spondent wanted to "bump" onto that shift. Pierce said
that a strander-helper job had been posted, that no em-
ployee already working in the plant had bid on that job,
that Hajismaiel had been hired as a strander helper, and
that, because Palacios and the employees named by
Victor Lopez were classified as strander operators, they
24 My findings in the foregoing paragraph are based on a composite of
credited portions of the testimony of Hajismaiel. Iopez, and Vizuete
While Respondent's witnesses were in no position to testify about the
Lopez-Vizuete conversations, I credit their testimony for demeanor rea-
sons and because it is indirectly corroborated by Vizuete's uncontradicted
testimony concerning his remarks to company witness Hajismaiel. On
direct examination, Hajismaiel was not asked about Vizuete's remarks to
him while he was working. On cross-examination, Hajismaiel initially
denied having a "conversation" with Vizuete (testimony not inconsistent
with Vizuete's testimony about remarks to Hajismaiel which were unan-
swered) and then repeatedly testified that he did not remember whether
or not Vizuete asked him why he was working more than eight ma-
chines.
25 This finding is based on Pierce's testimony I believe Wierzbowski
was mistaken in denying that these documents were produced
could not use their seniority to "bump" Hajismaiel from
his helper's job. 28 Abraham Lopez alleged that Hajis-
maiel could not be classified as a helper because he was
being paid the wage scale of a machine operator. Pierce
asked Abraham Lopez how he knew what Hajismaiel
was being paid. Abraham Lopez replied that another
worker had told him the amount of Hajismaiel's gross
payckeck for a particular week. Pierce said that, so long
as no grievance had been filed and the employee was
making no more than the contractual maximum pre-
scribed for his job classification, an individual employee's
starting or current pay was none of the Union's business.
Abraham Lopez asked why Hajismaiel was being paid
the top of the helper's rate. Pierce replied that Hajismaiel
had had some experience elsewhere and was running 10
machines.2 7 Pierce further said that Hajismaiel had com-
plained to him that Abraham Lopez had "threatened"
him about running 10 machines. Lopez denied making
such threats.2 8 Pierce testified that by this time he was
"getting very angry" at Abraham Lopez' "aggressive-
ness" about Hajismaiel. Pierce asked why Abraham
Lopez was "keying on" or "picking on" Hajismaiel.
Lopez did not reply.
Abraham Lopez said that he had been told by employ-
ee Jose Morales that, when he had asked to be taken to
the doctor to be treated for an eye irritation which had
occurred on the job, Pierce had said Morales would be
discharged if he had another accident. At Abraham
Lopez' request, Pierce arranged for Morales to be
brought to the meeting. 29 Morales thereupon repeated to
the group a version of Pierce's comments which was the
same as the version which Abraham Lopez had attribut-
ed to Morales. Pierce said that he had told Morales that
the only job Respondent needed him for was the job
which had caused him eye trouble, that Morales would
have no further eye trouble if he would start wearing
goggles on that job, and that if Morales continued to
refuse to wear goggles he would be terminated.
Also discussed were the absentee control problem; an
employee who had requested that her family-type bene-
fits card be replaced by an individual benefits card; man-
agement's complaint, which the Union undertook to sat-
isfy, about a steward who, in settling grievances, was
26 Pierce testified that, under the collective-bargaining agreement, an
employee who is classified as an "operator" can never "bump" off a par-
ticular shift an employee who is classified as a "helper," even in cases
where the two are doing the same work and the "helper" is junior to and
is being paid more than the "operator."
27 Victor Lopez said in Spanish that his son had reported that Hajis-
maiel was working 10 machines. Victor Lopez' remarks were not trans-
lated into English.
28 My findings in the last three sentences are based on Wierzbosvski's
testimony For demeanor reasons. I do not accept Abraham Lopez' testi-
mony that nothing was said at this meeting about a claim that Hajismaiel
had made concerning how many machines he was working, or Pierce's
testimony that nothing was said at that meeting about the number of ma-
chines Hajismaiel was operating.
Hajismaiel credibly testified that Lopez never threatened to hit him or
anything like that. Hoogstra credibly testified that Hajismaiel never said
to Hoogstra at any time that Lopez had threatened Hajismaiel if he did
not do what Lopez suggested
29 My finding that Morales was brought in at Abraham Lopez' request
is based ot %'ierzbowski's and Abraham Lopez' testimony For demeanor
reasons, I do not accept Perce's testimony that he himself initiated the
proposal
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
going without permission into departments other than his
own; and arrangements for a meeting to settle outstand-
ing grievances. In addition, the union officers, all of
whom have Latin surnames, stated that they believed
Respondent was "sort of belittling and snubbing and
trying to get rid of the Spanish-speaking people."
My findings about what occurred during the Decem-
ber 2 conference are based on a composite of credible
portions of the testimony of Pierce, Wierzbowski, and
Abraham Lopez. Because almost all my findings (and all
my critical findings) about what was said at this meeting
are supported by credible portions of the testimony of
English-speaking witnesses Wierzbowski or Pierce, my
ultimate findings and conclusions in this Decision would
be unaffected even were I to find that Abraham Lopez'
testimony about what was said by Pierce and Wierz-
bowski was nonprobative hearsay because based on Ace-
vedo's Spanish translation of their English remarks. 3°
However, I conclude that, although the employees had
brought Acevedo to the meeting to act as a translator, in
so acting Acevedo was the joint agent of Respondent
and the employees and, therefore, that Abraham Lopez'
testimony about Acevedo's translation from English to
Spanish was not hearsay. 29 Am. Jur. 2d, Evidence, Sec.
501, pp. 558-559 (1967), Gulf C. & S. F. Ry. Co. v.
Giun, et al. 116 S.W. 2d 693, 116 ALR 795, 131 Tex 548
(1938), and annotation at 116 ALR 800. My joint-agency
conclusion is based on an inference that management, as
well the Spanish-speaking employees, agreed to accept
bilingual employees as interpreters of conversations be-
tween the parties, and that such translation services bene-
fited management as well as the employees.
About half of Respondent's employees speak Spanish
as a native language, while, so far as the record shows,
no member of management except the third-shift foreman
is able to speak any Spanish at all. Accordingly, manage-
ment necessarily issues its orders and explanations in
English,3 ' receives Spanish-speaking employees' re-
sponses and questions in Spanish, and has an interest in
accurate English-Spanish and Spanish-English transla-
tions in order to carry on effective shop operations.
Moreover, accurate translations are necessary in order to
enable management, during conferences like the Decem-
ber 6 conference with Spanish-speaking employees who
were union officers, to obtain management's full rights
and to discharge management's full obligation under the
collective-bargaining relationship. Similarly, accurate
translations are necessary in order to enable Respondent
to make a full presentation of its case in grievance or ar-
bitration proceedings with Spanish-speaking witnesses or
union representatives. As to shop communications with
Spanish-speaking employees, the record specifically
shows that Respondent from time to time affirmatively
selects a convenient bilingual employee to act as transla-
10 At the time of the hearing, Acevedo was hospitalized because of
surgery. Assuming with Respondent that his operation was probably not
of an emergency character, I nonetheless reject Respondent's contention
that the General Counsel's failure to call Acevedo as a witness creates a
presumption against the General Counsel's case. Cf L. S. Ayres & Compa-
ny, a Division of Associated Dry Goods Corporation v . NL.R.B., 551 F2d
586, 588 (4th Cir 1977).
31 Respondent's counsel offered to stipulate that all communications at
the facility are made in English.
tor. Also, on at least one occasion, an employee (perhaps
Victor Lopez) selected Acevedo to translate that em-
ployee's inquiry to Pierce. The record fails to show that
Respondent ever affirmatively selected a bilingual em-
ployee to act as translator during bargaining negotiations
or during the type of employer-union conference con-
ducted on December 6. However, the record does show
that, over a period of several months before August 10,
1978, Pierce repeatedly requested a union representative
who spoke only English to obtain a bilingual employee,
usually named by Pierce, to serve as translator during
grievance proceedings where the grievant spoke only
Spanish. During this period, if the grievance meeting oc-
curred during working hours, the union representative
never took anyone off the floor without Pierce's permis-
sion. Also, when Abraham Lopez served as union ste-
ward between 1975 and the end of 1977, he always went
to grievance meetings with a translator, either Ace-
vedo3 2 or an individual whom Pierce described as "our
own Gus Revolta." 3 3 Moreover, when Kalish served as
president between May 1977 and December 1977, he
always used a translator in grievance proceedings where
the grievant was Spanish-speaking. Among the transla-
tors so used was Acevedo. Pierce never objected to Ka-
lish's use of these tranlators. Furthermore, in early
August 1978, Acevedo served as a Spanish-English trans-
lator during an arbitration proceeding without objection
from anyone. Then-Union Steward Keith Selby (who
speaks no Spanish) had told Pierce that then-Union
President Victor Lopez (who speaks very little English)
needed a translator, and proposed a series of individual
employees, two of whom Pierce rejected as needed on
the floor and the rest of whom were unavailable for
other reasons. Selby obtained Acevedo after Pierce told
the vice president to get anyone he wanted. Although
Pierce maintained to Kalish that providing a translator
was the Union's responsibility, Pierce testified that,
whenever an employee was called off the floor to serve
as interpreter, such action would have to be approved by
his supervisor and by Pierce.
4. The suspension of Lopez on December 6
The December 6 union-management conference par-
ticipated in by Lopez took about 4 hours and ended
about 3 p.m. 34 At or about 4 p.m., Hoogstra and Pierce
decided to have a meeting later that same day with
Lopez and Hajismaiel. During this conference, Pierce ad-
vised Hoogstra about what contract provisions had been
violated by Lopez if Hajismaiel had been accurate in
making the report which Pierce had learned about on
32 Acevedo served as union president during an undisclosed period
before May 1977. Kalish testified that, while Acevedo was serving as
union president, he translated at grievance hearings because he was a
union official.
as As previously noted, Pierce's objections to Lopez' conduct in this
respect were based on the contention that Lopez spoke English well
enough not to need a translator, and not on any contention that the trans-
lators were unreliable. There is no evidence that any other member of
management had any objections to Lopez' practice.
a4 My findings as to the length of the meeting and when it broke up
are based on Wierzbowski's and Abraham Lopez' testimony. For demea-
nor reasons. I do not accept Pierce's testimony that the meeting took 2
hours.
INTL. WIRE PRODUCTS COMPANY 1131
December 2. Pierce then received through his secretary
a message that Abraham Lopez was not going to report
to work that day on his regular 4-to-12 shift. Pierce ad-
vised Lopez' daughter by telephone that her father was
to come to the plant as soon as possible because Pierce
wanted to talk to him about "some problems that hap-
pened at the shop." Also, Pierce went to Hajismaiel's
work area. Hajismaiel was the only witness who testified
about their conversation at this time. On direct examina-
tion, he testified, "I talk with him when he come in in
[sic, inferentially, "with"] foreman [inferentially, Melton]
. . I tell him [inferentially, Pierce] what I listen, com-
pany and union, I am not union, maybe some problem
with me. I know what happen because foreman told
him." On cross-examination, Hajismaiel testified:
Mr. Wayne Pierce and my foreman [Willie
Melton] come in together. Then Mr. Wayne tell me
what happened, Mike, I tell him-Willie-I tell him
Mr. Wayne, what trouble. And Mr. Lopez tell me
slow down. I don't know what I do. Listen here
and listen there. He tell me okay, all together come
in office.
At or about 5 p.m., Pierce met with Hoogstra, Hajis-
maiel, Abraham Lopez, and Vizuete. Pierce credibly tes-
tified that management asked Vizuete to attend because
he was the shift shop steward and the meeting could lead
to a discharge. 35 Pierce said in English that Hajismaiel
had said "somebody was talking to [Hajismaiel] regard-
ing running too many machines." 3 6 Lopez indicated that
he did not understand the question. 3 7 Pierce or Hoogstra
then said in English that Hajismaiel came complaining
that Lopez had told him "not to run so many ma-
chines."3 8 Vizuete asked in English how Hajismaiel and
Lopez could understand each other, since Hajismaiel
spoke no Spanish and Lopez spoke no English. Lopez
asked Vizuete in Spanish what management was
saying.3 9 Vizuete said in Spanish that management was
saying that Hajismaiel had accused Lopez of ordering
Hajismaiel "to stop the machines that he had been work-
ing."4 0 Lopez said in Spanish that Hajismaiel's accusa-
tion was a lie.41 Vizuete told Pierce, Hoogstra, and Ha-
jismaiel in English that Lopez had said this was a lie.4 2
According to Hoogstra's credible testimony, Hajismaiel
said in English that Lopez "was rather upset with [Hajis-
maiel] for running more than 8 machines," and in essence
that Lopez had told Hajismaiel he was running too many
a5 Pierce's testimony in this respect is partly corroborated by Vizuete's
testimony that he attended pursuant to Pierce's instructions. I believe
Lopez was mistaken in testimonially indicating that it was he who was
responsible for Vizuete's presence.
3e This finding is based on Hoogstra's testimony.
a? This finding is based on Pierce's testimony.
3s My finding as to the phrasing of this second accusation is based on
Pierce's version of the initial accusation, and his testimony that manage-
ment "repeated" it. For demeanor reasons, and in view of Hoogstra's tes-
timony, infra, regarding the substance of Hajismaiel's complaint, I do not
accept Pierce's testimony that management accused Lopez of having told
Hajismaiel to "stop running so many machines."
3s My findings in these two sentences are based on Vizuete's testimo-
ny.
0 This finding is based on Lopez' testimony.
41 This finding is based on Lopez' and Vizuete's testimony.
41 This finding is based on Vizuete's testimony.
machines and the others were not running that many.
Hajismaiel further said that Lopez had spoken to him
three times about the number of machines he had been
operating. 43 Vizuete said to Lopez in Spanish that Hajis-
maiel had said that Lopez had told him to stop running
the machines.44 Lopez said in Spanish that Hajismaiel
was lying, and that he was in agreement with Pierce and
Hoogstra just to give Lopez problems in the plant.4 5 Vi-
zuete told Hoogstra and Pierce in English that Lopez
said Hajismaiel was lying.46 Hoogstra and Pierce said in
English that they believed Hajismaiel, that Lopez was
lying, that Lopez was interfering with production, and
that he had no right to make the remarks which Hajis-
maiel had attributed to him.4 7 Vizuete told Lopez in
Spanish that Hoogstra had said Lopez could not order
production to be slowed. Lopez told Vizuete in Spanish
to tell Hoogstra that Lopez had never spoken to Hajis-
maiel to hold down production.4 8 Vizuete, who so far as
the record shows knew nothing about the Lopez-Hajis-
maiel conversations, told Hoogstra in English that it was
Vizuete, and not Lopez, who had talked with Hajismaiel
about the machines. Hoogstra said in English that Vi-
zuete had "better watch out," and that it was Lopez and
not Vizuete who had spoken to Hajismaiel. Vizuete said
in English, "[W]ell, I tell you I am, but I didn't tell him
at any moment stop any machine." 49 Hajismaiel then left
the meeting.
Lopez asked Vizuete in Spanish to ask Hoogstra
"what he going to tell me, what they want to do with
me." Vizuete asked Hoogstra and Pierce in English what
they were going to do. Hoogstra replied in English that
Lopez was going to be suspended pending further inves-
tigation. Also, Hoogstra picked up from Pierce's desk,
and gave to Vizuete, a printed form which had been
lying there throughout the meeting, and which already
contained a number of typewritten and some handwritten
entries. The form bore the printed heading, "Warning
Notice," bore Hoogstra's signature and typewritten name
in the printed space "Issued by," had Pierce's typewrit-
4' This finding is based on Pierce's and Hoogstra's testimony.
" This finding is based on the testimony of Lopez and Vizuete
45 This finding is based on Lopez' testimony partly corroborated by
Vizuete.
'4 This finding is based on Vizuete's testimony
47 This finding is based on a composite of credible portions of Pierce's
and Vizuete's testimony.
48 My findings in these two sentences are based on Lopez' testimony
partly corroborated by Vizuete.
49 My findings in the last three sentences are based on Vizuete's testi-
mony. Hoogstra testified that Vizuete said Lopez had talked to Vizuete
about talking to Hajismaiel, but that during the December 6 meeting Vi-
zuete did not state that he had in fact talked to Hajismaiel, and Hoogstra
did not "really explore it with [Vizuete] at that time." Pierce testified
that Vizuete said Lopez had told him to tell Hajismaiel not to run "so
many" machines; Pierce then said that, if Vizuete had so advised Hajis-
maiel, Respondent would discipline both Vizuete and Lopez; and Pierce
then asked Vizuete whether he had told Hajismaiel not to run "any" ma-
chines, to which Vizuete said no. Pierce's December 14 written rejection
of Lopez' written grievance asserts that Lopez and Vizuete admitted that
Lopez told Vizuete to have Hajismaiel slow down his production by not
running so many machines, but neither Pierce nor Hoogstra so testified.
Because Hoogstra's testimony does not corroborate Pierce's testimony
that he threatened to discipline Vizuete, because Pirce's December 14
comment on the grievance alleges admissions by Vizuete and Lopez
which are not referred to in Pierce's own testimony (let alone Hoog-
stra's), and for demeanor reasons, I credit Vizuete
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ten name in the printed space "Approved by," and in the
appropriate blanks had typewritten entries setting forth
the December 6 date, Lopez' name, and his employee
number. The form had the printed entry, "This warning
notice has been issued to make you aware of violations
of company policy and/or deficiencies listed below." Un-
derneath, the following material was typewritten:
Plant Rules, Page 51, "An employee who fails to
maintain at all times proper standards of conduct or
who violates any of the following rules shall subject
himself to disciplinary action including discharge."
#15 Interfering with the fellow employees or su-
pervisors in the performance of their duty.
#26 An employee shall not restrict production or
interfere with others in the performance of their
jobs-or engage or participate in any unauthorized
interruption of work or production.
#17 Insubordinate conduct or refusal to follow
foremans legitimate orders.5 0
The form further contained the printed entry, "You are
hereby advised that a repetition of these or similar in-
fractions of policy and procedure will result in" and
then, preceded by boxes, the printed choices "termina-
tion," "suspension," and "other (specify)." A handwrit-
ten "X" appeared before the "suspension" entry.
Hoogstra told Lopez and Vizuete, in English, to sign
the document. Vizuete translated the document for
Lopez. Then, both employees said that they did not want
to sign it.51 Lopez said that he had not done what the
document alleged, and that, if he signed it, Respondent
would use the allegations in it as a basis for discharging
him. Hoogstra said that Lopez was merely being "sus-
pended pending investigation"; 5 2 that, as the union presi-
dent, Lopez should be able to understand that this docu-
ment was a warning;5 3 and that the employees' signa-
tures did not constitute an acknowledgment that the alle-
gations in the document were correct, but merely consti-
tuted an acknowledgment that they had been present
during the interview.5 4 Through Vizuete, Lopez asked
the length of his suspension. Hoogstra said, "[W]e will
see." Through Vizuete, Lopez said that he wanted to
know how many days, and that he did not want to sign.
o1 In the collective-bargaining agreement printed by Respondent, these
rules appear following the signature page and under the heading "Plant
Rules." The contractual management rights clause states that the rights
of management include, inter alia, "the determination of the size of the
working force, the allocation and assignment of work to employees
the establishment of . quantity standards and the judgment of the ..
quantity of workmanship required, subject to the grievance procedure."
and "the establishment, modification, and enforcement of reasonable plant
rules or regulations, which are not in conflict with any of the provisions
of this Agreement." Also, the contract requires employees to "[c]omply
with the reasonable rules in effect at the time of the signing of this
Agreement which have been approved by the Union and such other rules
as may be enacted from time to time after submission of a copy thereof to
the Union." Pierce, who personally participated in the negotiations which
led up to this agreement, testified without contradiction that the plant
rules were specifically negotiated as part of the collective-bargaining
agreement and were agreed to by the Union.
'5 My finding in this sentence is based on the uncontradicted testimony
of Pierce, Lopez, and Vizuete.
b2 This finding is based on Hoogstra's uncontradicted testimony
53 This finding is based on Vizuete's uncontradicted testimony.
5' This finding is based on Pierce's uncontradicted testimony.
Hoogstra again said, "[W]e will see," and said that
Lopez would be discharged if he did not sign it.5 5 Lopez
and Vizuete then signed.
My findings as to what happened during this interview
are based on a composite of credited portions of the tes-
timony of Lopez, Vizuete, Pierce, Hoogstra, and Hajis-
maiel. I do not credit the testimony of Pierce, Hoogstra,
and Hajismaiel that to a significant extent Lopez partici-
pated in this conversation without an interpreter, and
credit the testimony of Lopez and Vizuete that during
this conversation Lopez communicated almost entirely
through the bilingual Vizuete. I rely on the witnesses'
demeanor, and on the credible evidence regarding the
limitations of Lopez' ability to speak and understand
English. As to such ability, I accept the testimony of em-
ployee Kalish, who speaks a little Spanish and who, as
union president, had dealings with Lopez about griev-
ances for about 6 months. Kalish testified that Lopez
knew enough English to get a taxi or a hot dog, but not
enough to carry on a conversation to explain things or to
conduct an argument. Kalish further testified that, when
talking to Lopez, he needed a translator. I also regard as
significant Pierce's testimony that Lopez' English was
not good enough to enable Pierce to convey over the
telephone a request that he return to the plant to discuss
shop problems, and that Pierce had to convey this rather
simple message to Lopez through one of his female rela-
tives. Moreover, it is undisputed that Pierce told Kalish
that Lopez could not speak Spanish well enough to per-
form the steward's normal duties on the floor in connec-
tion with the Garcia incident. Further, Hoogstra and
Pierce testified that Vizuete from time to time translated
for Lopez' benefit during the December 6 conference,
even though Vizuete's own English is so limited that he
gave at least half his testimony through a translator.s6
Similarly, Wierzbowski credibly testified that he was
unable to talk to Lopez except through an interpreter.5 7
I do not credit the testimony of Hoogstra, Pierce, and
Hajismaiel that Lopez admitted management's accusa-
tions about his remarks to Hajismaiel, and credit the tes-
timony of Lopez and Vizuete about Lopez' denials, for
demeanor reasons, and because Hajismaiel's credited tes-
timony about his conversations with Lopez establishes
that the accusations as translated by Vizuete (and, argu-
65 My findings in the last three sentences are based on a composite of
the employees' uncontradicted testimony. Pierce denied that he himself
made such a threat, but was not asked whether Hoogstra made it.
66 [opez testified entirely through a translator.
a' In seeking to establish Lopez' fluency in English, Respondent relies
on Lopez' action during the hearing in pointing to a page of the bargain-
ing agreement which sets forth various job classifications in English and
attaches various wage rates thereto. lIowever, Lopez regarded the
column headed "Merit Maximum" as meaning minimum Hoogstra's prior
conversations in English with Lopez had involved either exchanges of
greetings or shop matters.
At Lopez' unemployment compensation hearing on an undisclosed date
before January 5, 1978, he used English to a significant extent, but also
requested and was afforded a translator. The decision of a deputy of the
New Jersey Division of Unemployment and Disability Insurance, which
decision was never appealed, found, inter alia, that Lopez had been dis-
charged for misconduct connected with his work. more specifically,
"Your employer states you were discharged because another employee
complained that you advised him to slow down you [sic] production. Al-
though you deny this allegation, from the evidence presented it appears
that you were involved in this matter."
INTL. WIRE PRODUCTS COMPANY 1133
ably, those actually voiced by management in English)
were to a significant extent untrue. In this connection, I
believe that Lopez was sincere in his testimony that
there was no discussion at this meeting about "slowing
the machines down or operating less machines." For de-
meanor reasons, I do not credit the related testimony of
Hoogstra, Pierce, and Hajismaiel that Lopez defended
his alleged remarks to Hajismaiel on the ground that he
was operating more than the contractual maximum
number of machines, and credit Vizuete's denials.5 8 For
demeanor reasons, I discredit the testimony of Hoogstra,
Hajismaiel, and Pierce that Vizuete said in English that a
man should not run more than eight machines because he
might later be fired if he got too old to run so many, and
accept Vizuete's denial. 5 9 I do not credit Pierce's testi-
mony that he prepared Lopez' warning notice in the
office of Pierce's secretary during a break in the confer-
ence which occurred in his own office. Rather, I credit
the testimony of Lopez and Vizuete that Hoogstra
picked up the document from the desk immediately after
saying that he was going to give Lopez a warning, and
that Pierce and Hoogstra did not leave Pierce's office
during the conversation, for demeanor reasons, because
Hoogstra did not corroborate Pierce's testimony in this
respect, because Hoogstra's account and Pierce's initial
account of the conversation did not refer to this alleged
break, and because Pierce's testimony about his prepara-
tion of the document does not explain how Hoogstra
came to sign it.
5. The December 8 conference between the Union
and Respondent regarding Lopez
At the time Respondent effected Lopez' suspension,
Union Representative Wierzbowski was en route be-
tween the Wyckoff, New Jersey, plant and his Trenton,
New Jersey, home about 70 miles away. When he
reached home, he found waiting for him a number of
telephone messages telling him that Lopez had been sus-
pended. On the following morning, December 7, Wierz-
bowski telephoned Pierce and asked for a meeting that
day to discuss the matter. Pierce said that he was unable
to meet that day. Wierzbowski asked for a meeting as
early as possible. The two men agreed to meet on De-
cember 8.60
The December 8 meeting was attended by Wierz-
bowski, Pierce, Hoogstra, Lopez, and a bilingual em-
ployee who acted as translator.6 ' Wierzbowski testified
that, just before the meeting, he had a conversation
through the interpreter with Lopez, who was "pretty
R The contract does not specifically limit the number of machines to
be operated by a single employee. See, supra. fn. 50
59 Hajismaiel is 38 years old. Vizuete appeared to be about 30
80 My findings in this paragraph are based on Wierzhowski's testimo-
ny. For demeanor reasons. and in view of Wierzhowski's uncontradicted
testimony that at the December 8 meeting Pierce said that Wierzbowski
had no right to compel Respondent to discuss the matter. I do not accept
Pierce's testimony that it was he who initiated the call, that he said he
wanted a meeting as soon as possible because "this . was of a grave
nature," that Wierzbowski's statements during the conversation indicated
that he did not know about "the problem," and that Pierce asked Wierz-
bowski to come to the plant that very day, but Wierzbowsski could not
come
"1 The translator was Acevedo. Vizuete, or Guzman I need not, and
do not, determine who it was.
upset" and during which there was "mass confusion," in
which Wierzbowski understood Lopez to say that during
the December 6 meeting "they" had alleged that Lopez
had told Hajismaiel not to run 10 machines and to slow
down, and that Lopez had "denied this, and said that he
didn't say it, that. . . Vizuete made the statement and
not him." There is no other evidence regarding the con-
tents of this Wierzbowski-Lopez conversation. Wierz-
bowski arrived at the meeting with an already prepared
written grievance, probably drawn up by a union attor-
ney. Pierce told Wierzbowski that, so far as Pierce was
concerned, the meeting was not "official" because no
grievance had been filed, that Pierce would extend the
courtesy of trying to "explain" the matter informally, but
that Wierzbowski had no "right to be sitting here and
talking," and Pierce would insist on disposing of the
matter through the grievance procedure. Lopez then said
that the grievance might as well be put in, and Wierz-
bowski handed the document to Pierce. Management al-
leged that Lopez had admitted on December 6 that he
had told Hajismaiel not to operate so many machines.
Management asserted that such conduct violated the
contractual no-strike clause.6 2 Lopez denied having had
such conversations with Hajismaiel or having told man-
agement that such conversations occurred. Pierce and
Hoogstra said that, if Lopez was going to lie about the
matter, there was no reason to proceed further, and man-
agement was going to walk out of the meeting. Wierz-
bowski said that he hoped any discipline administered to
Lopez would be fair and just, and Wierzbowski was in-
clined to think Lopez should not be discharged, and
asked Respondent to think the matter over before
making a final determination on what should be done.
Wierzbowski and Respondent agreed that on the follow-
ing Monday, December 12, Pierce would advise Wierz-
bowski of Respondent's final decision. 6 3 That same day,
December 8, Pierce advised Union Vice President Victor
Lopez that Abraham Lopez had been suspended.
62 This clause states, in part:
(A) The Union agrees that it will not encourage, sanction, or ap-
prove any strike, stoppage, slowdown, or other interruption of work
growing out of any dispute which is subject to the grievance proce-
dure under the terms of this Agreement. On the contrary, the Union
will actively discourage and endeavor to prevent or terminate any
strike, stoppage, slowdown or other interruption of work growing
out of any dispute during the life of this Agreement. Upon a written
notice to the International Union, the International Union will imme-
diately notify the parties engaging in the violation of this provision.
that the strike, stoppage, slowdown, or other interruption of work is
unauthorized and the Union will make immediate efforts to return
the strikers to their respective jobs and shall request the strikers to
cease any action which may affect production
(C) Should any employee or group of employees fail to report to
work after being notified by the Union to do so the Employer shall
have the right to summarily discharge the aforesaid employee or
groups of employees.
63 My findings as to the events at the December 8 grievance meetings
are based on a composite of the testimony of Pierce and Wierzbowski.
To the limited extent that their testimony conficts. for demeanor reasons
I credit Wierzhowskl.
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The discharge of Lopez and subsequent events
As previously noted, when the December 6 meeting
broke up, Hoogstra told the parties that he would con-
duct an investigation of the matter before making a de-
termination about what to do to Abraham Lopez.
During this investigation, Hoogstra did not talk to Hajis-
maiel, Vizuete, Lopez, or Odeh. 64 So far as the record
shows, the only persons Hoogstra contacted during this
investigation were Melton (Hajismaiel's foreman) and
Enchinique (Lopez' foreman), neither of whom had, or
claimed to have had, any first-hand knowledge about
what Lopez had told Hajismaiel or Vizuete. 6 ~ Hoogstra
testified that a significant portion of his investigation was
directed toward determining whether the employees
would strike if Lopez were discharged. From Hoogstra's
testimony as a whole regarding his investigation, I infer
that the strike matter was almost the only subject.
On December 12, Abraham Lopez filed the instant
charge, received by Respondent on December 14, alleg-
ing that Respondent had unlawfully "discriminated
against" him because of his union activities. Hoogstra
testified that the decision to discharge Lopez was made
on December 12. On December 14, Pierce prepared, in
connection with the grievance procedure, a written re-
sponse to Lopez' grievance. This document states that
the "type of grievance" is "Discharge-Abraham Lopez."
About December 15, Pierce gave Union Vice President
Victor Lopez a carbon copy of the document headed
"Warning Notice," which Respondent had given Abra-
ham Lopez at the time of his December 6 suspension.
After Abraham Lopez had received his copy of the doc-
ument, Pierce had added to the copy delivered to Victor
Lopez the written notation, signed by Pierce, "Dis-
charge." Pierce told Victor Lopez that Abraham Lopez
had been discharged because he had caused Pierce the
"most problem." Shortly after receiving this "Discharge"
document, Victor Lopez gave it to Abraham Lopez.
Abraham Lopez' grievance was appealed to the third
step of the grievance procedure. It is undisputed that,
during the meetings held in connection with this proce-
dure, Lopez denied that he had told Hajismaiel to stop
running so many machines, and said nothing at all about
having told Vizuete to convey such a message to Hajis-
maiel. At the meeting in connection with the third step,
Wierzbowski learned for the first time that Lopez had
withdrawn his grievance in writing and had filed a
charge with the NLRB. Lopez told Respondent and
Wierzbowski that Lopez would withdraw his charge, but
there is no evidence he actually tried to do so.
C. Analysis and Conclusions
Respondent contends that Lopez was discharged
solely because of his remarks to Hajismaiel about the
number of machines he was operating. I agree with the
64 Hoogstra testified, in effect, that at that time he was unaware that
Odeh knew anything about the matter.
6 As previously noted, according to Hoogstra, Enchinique said that
"there was some conversation between him and Abraham [Lopez] about
Abraham talking or going to talk to [Vizuete] or going to talk to some-
body about he wanted to get to [Hajismaiel] and tell him [he was run-
ning too many machines .. [Lopez] left his work area to talk to some-
body and he did let them know that he was upset about that fact "
General Counsel that such remarks were not the real
reason for Lopez' discharge, and that Lopez was really
discharged because Respondent resented some of his
prior protected union activity and wanted to avoid fur-
ther dealings with him as union president.
Thus, Personnel Manager Pierce knew that, in April
1977, Lopez had been one of the two employees who
had led an almost successful effort to induce the mem-
bership to reject a bargaining agreement already ap-
proved by the union officers and by management. In
July, Pierce learned that Lopez was one of the two em-
ployees who were most vocal in opposition to the shoe
safety program which management had proposed to the
Union. Lopez' conduct in the foregoing respects led
Pierce to describe Lopez as "very emotional" and a "hot
head." When confronted in late September with a Span-
ish-speaking employee who disobeyed Pierce's instruc-
tions, Pierce sought the assistance (which was unsuccess-
ful) of a bilingual employee who was not a union official,
and deliberately refrained from requesting the assistance
of then-Union Steward Lopez because Pierce believed
Lopez was too emotional and spoke English too poorly
to handle the problem. During a subsequent grievance
meeting which involved the foregoing and another inci-
dent, Lopez acted in a manner which Pierce regarded as
"too emotional" and as preventing, through interruption,
a "rational" discussion by the other participants. After
that meeting had ended, Pierce advised then-Union Presi-
dent Kalish to replace Lopez as steward, or to add an-
other steward to Lopez' shift-"that Mr. Lopez was also
causing problems for [Kalish] as well as the company be-
cause he was so emotional." During this same conversa-
tion, when Kalish said that Lopez might run for union
president, Pierce said that, if Lopez became president,
Pierce expected problems, expected that the Union
would have trouble, and expected that the Spanish-
speaking employees would have to "straighten out, they
can't think they'd run the plant." About 2 weeks before
Lopez became president, Pierce again said that he ex-
pected problems if Lopez became president, and foresaw
bad times for both the Union and the Company because
Lopez was emotional.
During the first meeting between Respondent and the
newly elected officers, including Presdent Lopez, Pierce
complained about Lopez' failure to follow the usual prior
practice of providing an agenda, and felt compelled to
advise the new officers of management's written and oral
communications with the former officers regarding
checkoff authorizations. Also, Lopez challenged Respon-
dent's hiring of Hajismaiel for the third shift when as-
signment to that shift was wanted by strander operators
already on the payroll, and, on the basis of his pay scale,
challenged Respondent's contractual defense that Hajis-
maiel was a strander helper. Pierce said that, so long as
no grievance had been filed and the employee was
making no more than the contractual maximum pre-
scribed for his job classification, an individual employee's
starting or current pay was none of the Union's business.
Pierce further alleged that Hajismaiel had complained
that Lopez had "threatened" Hajismaiel about running
10 machines (an accusation truthfully denied by Lopez),
and asked why Lopez was "keying on" or "picking on"
INTL. WIRE PRODUCTS COMPANY 1135
him. During this conversation, Pierce admittedly became
"very angry" at Lopez' "aggressiveness" toward Hajis-
maiel. Also during this meeting, Lopez procured the at-
tendance of an employee who contradicted Pierce's ver-
sion of an allegedly threatening statement by him. In ad-
dition, during this meeting the new union officers stated
that they believed Respondent was "sort of belittling and
snubbing and trying to get rid of the Spanish-speaking
people."
Pierce, who speaks no Spanish, had regarded his rela-
tionship with former President Kalish, whose native lan-
guage is English, as a good professional business relation-
ship. An hour after the conclusion of Respondent's first
and last conference with Lopez as union president on
Decmber 6, and 4 days after Foreman Melton's report to
Pierce regarding the complaint from "the union" to Ha-
jismaiel, Pierce and Hoogstra decided to have a meeting
later that same day, December 6, with Lopez and Hajis-
maiel. At the time that Pierce and the manufacturing
manager, Hoogstra, decided on such a meeting, all that
either of them knew about Lopez' conversations with
Hajismaiel consisted of Foreman Melton's report that
Hajismaiel had told Melton that "the union had com-
plained that [Hajismaiel] was running too many ma-
chines," Pierce's suspicion (inferentially, based on Lopez'
other complaints about Hajismaiel during the union-man-
agement meeting) that Lopez was the source of the com-
plaint described by Hajismaiel, and Lopez' denial during
that union-management meeting that he had threatened
Hajismaiel about running so many machines. Also,
Hoogstra admitted, in effect, that he did not think a
union official would violate the contract by discussing
with an employee the fact that he was working more
machines than were other employees. Nonetheless, prior
to the meeting and without discussing the matter with
Hajismaiel, Pierce drew up, and Hoogstra signed, a
warning notice alleging that Lopez had violated four
specified plant rules and stating that repetition of such
conduct would result in suspension. Management sched-
uled the December 6 meeting, which Pierce knew might
lead to the discharge of Union President Lopez, to be
held after the Union's professional business representa-
tive, Wierzbowski, whose native language is English, had
left the plant and started on a 70-mile trip to his home.
Accordingly, management's scheduling of the meeting
virtually assured that Lopez' only representative would
be Vizuete. whose ability to speak and understand Eng-
lish is limited and whose prior experience as a union rep-
resentative consisted of less than 3 weeks' service as shop
steward. When it transpired that Lopez did not intend to
report to work at his usual hour of 4 p.m. that day,
Pierce induced him to come to the plant by the mislead-
ing statement that Pierce wanted to talk to him about
some "problems that happened at the shop."
According to Hoogstra's own testimony, at that meet-
ing Hajismaiel himself merely said that Lopez "was
rather upset with him for running more than 8 ma-
chines," and, in essence, that Lopez had told Hajismaiel
he was running too many machines and the others were
not running that many. Such statements, even if Lopez
had in fact made them, at least arguably did not consti-
tute a breach of the contract as interpreted by Hoogstra.
Moreover, bilingual employee Vizuete told English-
speaking management that Lopez denied making these
remarks, and Vizuete further stated, on the basis of his
own limited information, that only Vizuete had discussed
the matter with Hajismaiel. Although Respondent had no
other information at all about Vizuete's conduct, Hoog-
stra did not ask Hajismaiel about Vizuete, but merely
said that it was Lopez and not Vizuete who had talked
with Hajismaiel, and Hoogstra issued to Lopez the exact
"warning notice" which management had brought into
the meeting. Furthermore, although (1) Hoogstra testi-
fied that Hajismaiel told him that the Hajismaiel-Lopez
conversations were conducted in English (which Lopez
speaks very poorly and Hajismaiel does not speak or un-
derstand very well), (2) management required Hajismaiel
to wear ear protectors while operating his machines, and
(3) Lopez' remarks never changed Hajismaiel's work
pace, Respondent never conducted an investigation to
determine whether Hajismaiel had misunderstood or in-
accurately reported what Lopez said, or whether Lopez
had said something he did not really mean. Rather,
Hoogstra confined his postsuspension investigation to de-
termining whether management could discharge Lopez
without undergoing a strike. Finally, after concluding
that no strike would occur, management took the ex-
treme action of discharging Lopez even though the De-
cemeber 6 "warning" document had merely said that he
would be suspended for repeating the offenses there set
forth. It should be noted that, although Respondent cus-
tomarily follows a practice of progressive discipline
except for an "extremely severe occurrence," Respon-
dent took no action with respect to Lopez' alleged re-
marks until 4 days after Hajismaiel's report to Melton,
Lopez' alleged remarks had not affected Hajismaiel's
production in any way, and Hoogstra learned during his
postsuspension "investigation" that Lopez had sought
what Hoogstra regarded as a proper means of solving
the workload problem by approaching Lopez' foreman
about the matter. On the other hand, when Hajismaiel
had reported to Hoogstra and Pierce, 2 to 5 weeks
before Lopez' discharge, that some of the 12 stranding
employees on his shift were reducing the machines' pro-
ductivity by "sticking wires through the dies" or by tem-
porarily shutting the machines down, Hoogstra did not
conduct an investigation of the matter or even ask Hajis-
maiel the names of the employee culprits, who could not
have included Lopez because he was not a strander.
Moreover, Pierce told Victor Lopez that Abraham
Lopez had been discharged for causing Pierce "the most
problem," a much more natural description of Lopez' ag-
gressive conduct as a union official than of his conversa-
tion with Hajismaiel, which had not affected production
at all.
In view of my finding that Respondent discharged
Lopez because Respondent resented some of his prior
protected activity unrelated to Hajismaiel's workload,
and wanted to avoid further dealings with Lopez as
union president, I need not, and do not, determine
whether Respondent could lawfully have discharged him
because Hajismaiel told Respondent at the December 6
meeting that Lopez "was rather upset with him for run-
ning more than 8 machines," and, in essence, that Lopez
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had told Hajismaiel, "[L]ook, you are running too many
machines. The others aren't running this much" (fol-
lowed by Foreman Enchinique's report to Hoogstra that
Lopez had complained to Enchinique about the number
of machines operated by Hajismaiel). 66 See Scofield v.
N.L.R.B., 394 U.S. 423, 431-436 (1969); United Steel-
workers of America, AFL-CIO [The Dow Chemical Com-
pany] v. N.L.R.B., 536 F.2d 550, 555 (3d Cir. 1976). Fur-
ther, I need not, and do not, determine whether all or
part of what Lopez really said to Hajismaiel would pre-
clude a finding that Respondent could discharge him be-
cause of what it thought he said. N.L.R.B. v. Burnup &
Sims, Inc., 379 U.S. 21 (1964); Wilson, 414 F.2d at 1353,
fn. 17.
Pierce's written rejection of Lopez' grievance states,
inter alia, "Mr. Lopez, for his leadership actions during a
wildcat strike in January 1977 was on probation for a 1-
year period pending discharge for any further participa-
tion in matters detrimental to the health and welfare of
the Company. This action was a definite defiance of that
probation." Pierce testified, in effect, that he advanced
this consideration as a defense rather than as a motiva-
tion. In view of my findings regarding the motivation
contentions which Respondent has advanced to me, I
need not, and do not, determine the veracity of Pierce's
testimony in this respect or whether a finding that Lopez
was discharged partly for the reasons set forth in the
quoted section of the memorandum would call for sus-
taining the instant complaint. See Local Lodge No. 1424,
International Association of Machinists [Bryan Manufactur-
ing Co.] v. N.L.R.B., 362 U.S. 411 (1960); N.L.R.B. v.
Textile Machine Works, Inc., 214 F.2d 929 (3d Cir. 1954);
N.L.R.B. v. Los Angeles Yuma Freight Lines, et al., 446
F.2d 210, 216-217 (9th Cir. 1971); N.L.R.B. v. Auto War-
ehousers, Inc., et al., 571 F.2d 860 (5th Cir. 1978);
N.L.R.B. v. Cast Optics Corporation, 458 F.2d 398, 404-
406 (3d Cir. 1972), cert. denied 409 U.S. 850; Precision
Casting Co., etc., 233 NLRB 183 (1977); Newspaper Print-
ing Corporation, 221 NLRB 811, 824 (1975).
6 So far as the credited evidence shows, this sentence sets forth all the
relevant infoirmation (aside from Lopez' denials) possessed by Respondent
at the time it suspended and discharged Lopez Assuming that such infor-
mation, if accurate would not have constituted a legal defense to Lopez'
discharge, Respondent cannot defend its action on the basis of informa-
tion which it acquired after his discharge, even though such after-ac-
quired information could have constituted a lawful motivation. See Hugh
H. Wilson Corporation v. NL.R.B., 414 F.2d 1345, 1352 53 (3d Cir. 1969),
cert. denied 397 U.S. 935 (1970); Charles Edwin Laffey d/b/a Consolidated
Services, 223 NLRB 845 (1976).
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(3) and (1) of
the Act by discharging employee Abraham Lopez be-
cause of his union activity.
4. This unfair labor practice affects commerce within
the meaning of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it be re-
quired to cease and desist therefrom. Because such unfair
labor practices consist of the plant personnel manager's
and manufacturing manager's discharge of the union
president because of his union activities, Board precedent
calls for a broad order. Brom Machine and Foundry Co.,
222 NLRB 74 (1976). Accordingly, I shall recommend
that Respondent be required to cease and desist from in-
fringing on employee rights in any other manner. Fur-
ther, I shall recommend that Respondent be required to
offer Lopez immediate reinstatement to the job of which
he was unlawfully deprived, or, in the event such job no
longer exists, a substantially equivalent job, and make
him whole for any loss of pay he may have suffered by
reason of his unlawful discharge, from the date of his
discharge to the date of a valid offer of reinstatement, to
be computed in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), with interest as
described in Florida Steel Corporation, 231 NLRB 651
(1977).67 I shall also recommend that Respondent be re-
quired to post appropriate notices. Because some em-
ployees in Respondent's plant speak Spanish, Italian, or
Arabic as a native language, notices in such languages as
well as in English shall be required. The record also
shows that at least employee Jose Morales, who speaks
some English and may also speak Spanish, may be a Fili-
pino. If at the compliance stage the Regional Director
determines that he or other employees speak Tagalog as
a native language, notices shall be posted in that lan-
guage also.
[Recommended Order omitted from publication.]
67 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).