A. J. Ross Logistics, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1987

283 N.L.R.B. 410 (N.L.R.B. 1987)

410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. J. Ross Logistics , Inc. and Miguel Santiago. Case
22-CA-14209
30 March 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 10 November 1986 Administrative Law
Judge Edwin H. Bennett issued the attached deci-
sion . The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, A. J. Ross
Logistics, Inc., Keasbey, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
1 The Respondent has excepted to some of the judge's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law ,fudge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
The Respondent contends that the judge's conduct at the hearing, in-
terpretation of the evidence , and his credibility findings showed bias and
prejudice against the Respondent . On examination of the judge's decision
and the entire record, we are satisfied that the contentions of the Re-
spondent in this regard are without merit.
The Respondent's request to reopen the record is denied as lacking in
merit.
Gary A. Carlson, Esq., for the General Counsel.
Thomas F.X. Foley, Esq. (Foley, Shelly & Neimann), for
the Respondent.
DECISION
STATEMENT OF THE CASE
EDWIN H. BENNETT, Administrative Law Judge. On
14 January 1986 an unfair labor practice charge was filed
by Miguel Santiago against A. J. Ross Logistics, Inc.
(Respondent or Company). On 27 February 1986 a com-
plaint and notice of hearing was issued alleging, inter
alia, that Respondent had discharged Santiago and An-
selmo Larquin in January 1986 because of their activities
on behalf of United Steelworkers of America, District
No. 9 (Union), thereby violating Section 8(a)(3) of the
Act. Additionally, the complaint alleged several in-
stances of independent violations of Section 8(a)(1) of the
Act. Respondent denies that it violated the Act in any
respect. The hearing on these charges was conducted in
Newark, New Jersey, on 14 May 1986.1
On the entire record, including my observation- of the
demeanor of the witnesses and after due consideration of
the briefs filed by the General Counsel and Respondent,
I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is located on a site of approximately 40
acres in Keasbey, New Jersey, where it is engaged in the
fabrication, storage, sale, and distribution of structual
steel components for use in the construction industry, in-
cluding the fabrication and sale of rebars, which are steel
bars used for reinforcing concrete. It has revenues of
several million dollars a year, of which amount, in excess
of $50,000 is derived from the sale of its products direct-
ly to places located outside the State of New Jersey. Re-
spondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. Respondent also admits, and I
find, that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent began in business in 1975 and has grown
steadily under the direction and control of its President
and Chairman of the Board, Thomas Petrizzo. Petrizzo,
who characterized himself -as a "hands-on" executive,
plays an active role in the day-to-day operations and
management of the Company. Respondent's prospectus
states: "The business of the Company is greatly depend-
ent on the active participation of" Petrizzo. He works
long hours six days a week, at times arriving as early as
4 a.m., and is thoroughly familiar with every phase of
the business. He personally has guaranteed $6 million
worth of Company indebtedness and manifests his con-
cern for the Company by overseeing its operations, per-
forming manual labor , and regularly consulting with all
the managers.
He tours the facility almost daily at which time he
talks to the employees and observes work performance.
He is particularly concerned with having "positive atti-
tudes" among his employees and employs a secret intelli-
gence system in order to detect "negative attitudes." Al-
though he declined to specify all of the methods he em-
ploys to achieve this objective, his testimony left no
doubt that he is constantly aware not only of the produc-
tion operations but of employees concerns and attitudes
towards the job.
Petrizzo's chief assistant is Ronnie Ferrer, who has
been with the Company since its inception having held a
variety of positions. For the past 3 years he has been a
vice president whose duties place him in charge of the
entire production facility. He is responsible for all receiv-
1 All dates hereinafter are in 1986 unless otherwise stated.
283 NLRB No. 64
A. J. ROSS LOGISTICS
ing of new products and shipment of finished goods, as
well as .maintenance of the equipment and evaluation of
the production process . Additionally, he plays a key role
as the liason between Petrizzo and the Spanish speaking
employees who constitute approximately 50 percent of
the total work force of about 200 employees . Ferrer fre-
quently accompanies Petrizzo on his daily tours of the
facility and serves as a Spanish translator for him.
A major component of Respondent 's operations is the
rebar division located in a 40,000 square foot building
with an adjacent lunchroom. That operation contains
two automatic machines for fabricating steel bars used to
reinforce concrete . The division operates on two , 8-hour
shifts daily, employing from 20-30 employees per shift.
The actual fabrication of the bars is done by computer-
ized machinery operated by highly skilled employees. In
addition , there are general laborers who are used to
remove the bars, bundle them, tag them , and load them
on the trucks. The two alleged discriminatees were em-
ployed in this unskilled labor category on the day shift.
The rebar division is headed by a vice president, Hugh
Brady, and the supervisor on the day shift is Larry
Greenough, both of whom admittedly are supervisors
within the meaning of the Act.
B. The Union Activity
Dissatisfaction surfaced among the employees in Janu-
ary, apparently as a result of the failure to receive ex-
pected raises the previous Christmas . Brady acknowl-
edged that this disappointment could have contributed to
the development of negative attitudes among the em-
ployees. In any event , Santiago felt that he was not being
treated fairly and contacted a representative of the
Union, a choice he decided on because the Union had
represented employees where Santiago previously had
worked in 1984. As a result, a union representative,
Morton, met with Santiago , and his wife Gloria, at their
home on the evening of 9 January . Morton gave him
about 200 authorization cards for distribution among his
coworkers to solicit their support for the Union.
The credited testimony of Santiago and Larquin estab-
lishes that on 10 January they arrived at the plant at ap-
proximately 6 a.m., about 45 minutes prior to their
normal starting time. Larquin generally traveled with
Santiago to and from work in Santiago 's automobile
which usually was driven by Gloria Santiago. The two
men were socially friendly , a fact known to-Ferrer and
Petrizzo . Both employees stationed themselves In a
locker room area 'used both by rebar and yard employ-
ees. With Larquin acting as lookout , .Santiago distributed
cards to about 20 to 25 employees and received approxi-
mately 15' signed cards in return.
About 4 p .m., that same day, following his discharge
as described more fully below, Santiago and Larquin,
who joined him on completion of his shift , distributed
union cards to employees arriving for the second shift.
They continued this union solicitation outside the plant
until about 5 p .m., during which time they distributed
approximately 20,to 30 additional cards, with several em-
ployees signing them on the spot . The foregoing account
constitutes the only significant union activity prior to the
411
two discharges in question and is based on the credited
testimony of the two employees.
C. The Discharge of Santiago
Santiago was hired by Ferrer in April 1984 . He initial-
ly was employed as a security guard until June 1984
when he was transferred to work in the yard as an assist-
ant to the hi-lo operator . In January 1985 he was trans-
ferred to the rebar department where he performed gen-
eral labor work until his discharge on 10 January. His
duties in that department included such various tasks as
sweeping, throwing rods on the line, and loading- cut
rods on to the truck . His immediate supervisor was
Greenough who in turn reported to Brady . In May 1985
he received a raise to $6.50 an hour which remained his
rate of pay until his discharge.
Although Ferrer asserted that Santiago had problems
as a security guard (sleeping ' on the job) he conceded
that he was an average employee . Both Ferrer and Pe-
trizzo sought to portray Santiago as a less than adequate
rebar employee as well but could describe only a single
incident to support their testimony . In July 1985 San-
tiago, Larquin, and two other employees were fired by
Brady for refusing to work overtime on a particular Sat-
urday. Within days of that discharge, however, and - at
the request of Santiago and Larquin, Ferrer interceded
with Petrizzo on their behalf and the employees were re-
instated . No other disciplinary action of any kind was
ever taken against Santiago for any other reason
throughout the period of his employment . Nor is there
any evidence that he was warned in any manner con-
cerning his work performance . Furthermore, Santiago
was assigned crane operation on Saturdays when the two
regular operators normally did not work, despite the fact
that Petrizzo described crane operation as a dangerous
job. Other duties performed by Santiago , such as flipping
bars and loading trucks, also were described as danger-
ous and it is clear that Respondent assigned these various
tasks to Santiago throughout his employment in the rebar
department . Finally, although Respondent elicited testi-
mony from many of its witnesses purporting to demon-
strate that Santiago was a particularly slow , incompetent,
or dangerous worker, the alleged reason for his dis-
charge was not related to his job performance.
As noted above , Santiago arrived early for work on
Friday, 10 January and together with Larquin distributed
union authorization cards to employees . Following this
activity he clocked in and began his regular work at 7
a.m. About 10 a.m., Greenough called him aside and told
him that he had heard there was an attempt to unionize
the plant and that because he was a friend of his he did
not want him to have problems. Santiago denied knowl-
edge of any'union activity . Nevertheless , Greenough told
him to talk 'to Petrizzo because "he's a good guy and
don't try to , ' get a union because that 's not going to get
you anything ." Santiago returned to work and although
Greenough proceeded to transfer ' him from job to job,
Santiago credibly testified that he was under constant ob-
servation by Brady. Greenough, who still is employed as
a supervisor, did not testify , and therefore Santiago's tes-
timony in this regard is credited and uncontroverted.
412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Santiago was discharged before the regular end of his
shift and before the end of the regular workweek which
runs from Monday through Saturday with payday the
following Thursday.
According to Santiago's credited testimony, he was
sweeping the floor -following the unloading of a truck
when Petrizzo and Brady approached him about 3 p.m.
Petrizzo told Santiago that he did not like him anymore
and when Santiago asked why Petrizzo said he did not
like- the way he was working and that he was fired.
These few words were spoken in English and were un-
derstood by Santiago . Santiago did not reply and imme-
diately left- the building followed by ,Petrizzo and Brady.
Petrizzo told a - security guard that he did not want to see
Santiago at the plant again.
Brady testified that since he had become vice president
in charge of the rebar department in May 1985 , and prior
to Santiago 's discharge, approximately seven employees
had been fired . In each instance , Brady made the deci-
sion to discharge the employee and communicated that
action to the employee . In not a single case , did Brady
consult with Petrizzo in advance although in some of the
cases he notified Petrizzo subsequently . All of these dis-
charges were for poor work performance of one type or
another . The discharge of Santiago was unique in the
manner in which it was made by Petrizzo and in the fact
that neither Brady nor , Ferrer, had been informed of San-
tiago's impending discharge . Neither of these corporate
officers, who normally would have at least been in-
volved in, or advised of, such personnel action, had so
much as a suspicion that Petrizzo was contemplating
such step.
Although no reason was communicated to Santiago at
the time of discharge,, Respondent asserts that it had
good and compelling justification for the sudden dis-
charge of Santiago . Petrizzo testified that his , reason for
firing Santiago in.,the manner described was that for sev-
eral weeks Santiago had worked at a noticeably slower
pace and, more importantly , had been soliciting his
fellow employees to join ,him in this slowdown cam-
paign. However, Petrizzo , conceded that , although he
knew of Santiago 's slowdown tactics, he never warned
Santiago to cease such activity , nor had he told any of
his supervisors ,about his observations or instructed them
to take measures to deter Santiago from this most serious
conduct. Petrizzo was insistent that the reason for firing
Santiago was the "slowdown" campaign he had been
urging on other employees. However , Petrizzo 's testimo-
ny is not supported by-any independent evidence from
other workers who were the recipients of Santiago's al-
leged slowdown activities nor is he supported by any of
the supervisory staff or indeed by Respondent 's formal
response to the complaint.
Thus, _ Petrizzo 's testimonial contentions are inconsist-
ent with Respondent 's opening statement asserting that
both Santiago and Larquin were , fired for their refusal to
perform specifically assigned work . Their discharges in
January, it was alleged, were motivated by the same type
of conduct that resulted in their discharges in July 1985,
at which time , it will be recalled, they were fired, al-
though later reinstated , for their concerted refusal to per-
form overtime work . This alleged nonperformance of
duties as the reason for Santiago's discharge is repeated
in Respondent 's brief, i.e., that he was fired because Pe-
trizzo observed him not working . Brady's testimony,
while supportive of the formal position , is at odds with
Petrizzo 's testimony . According to Brady, he and Pe-
trizzo had been observing Santiago loafing for several
minutes prompting a comment to this effect by Petrizzo.
It was at 'that very moment that Petrizzo summoned San-
tiago and fired him . It was Brady's belief that although
he had not been informed of the reasons of the dis-
charge, Santiago's loafing was the immediate cause
therefor. Ferrer , who was the liaison between Petrizzo
and the Spanish -speaking employees, and who can be de-
scribed as Petrizzo 's right hand man in the overall oper-
ations of Respondent , first learned - of Santiago's dis-
charge later that afternoon from an employee and not
from Petrizzo or Brady . There is no explanation in the
record for Ferrer's ignorance of Petrizzo 's intent to dis-
charge an employee who for several weeks allegedly had
been instigating a slowdown.
D. The Discharge of Larquin
Larquin had been hired by Ferrer in February 1985
and had worked the entire period of his employment in
the rebar department , tying and ticketing cut rods. At
the time of his discharge he was earning $6 an hour, a
rate of pay that he started to receive in May 1985. He
was described by Brady as a good worker, essentially no
different than any other worker in the rebar department.
He had never been warned or disciplined for poor work
performance , except for the disciplinary action in July
1985 noted above , involving the concerted refusal to
work overtime.
On Saturday, 11 January, the day after Santiago's dis-
charge, about noon time , while Larquin was performing
his assigned duties, he was approached by Peetrizzo and
Ferrer. Petrizzo called him over and told him, in Eng-
lish, that he was fired . At Larquin 's request, Ferrer , con-
firmed the discharge in Spanish . Neither official gave
Larquin any reason . Nevertheless, as was the case with
Santiago, Respondent, during the trial of this matter, of-
fered several reasons for his discharge.
As noted, Respondent's position at the opening of the
hearing was that Larquin and' Santiago were fired essen-
tially for the same reasons that motivated their' dis-
charges in July 1985 , that is, that they refused to perform
assigned work. Respondent 's brief, however, asserts that
Larquin was fired for "gesturing and screaming in Span-
ish at the other workers ," and for continuing such threat-
ening conduct despite efforts by Petrizzo to stop him.
Notwithstanding these two -reasons, Respondent's wit-
nesses did not entirely agree and they testified at vari-
ance to both.
The crucial testimony, and the ' most contradictory,
was given by Petrizzo who made the decision to dis-
charge Larquin without any consultation whatsoever
with Ferrer or Brady and , who actually communicated
the discharge' notice. He 'testified repeatedly and un-
equivocally that he fired Larquin for the same reason
that he fired Santiago, namely that Larquin , for' a pro-
longed period of time, had ' been urging employees to
A. J. ROSS LOGISTICS 413
engage in a work slowdown. Further, although he
claimed to have observed that conduct personally, he did
not explain his failure to warn Larquin or to take meas-
ures to have him cease these slowdown tactics. His testi-
mony regarding Larquin mirrors his testimony concern-
ing Santiago . In addition, Petrizzo specifically denied
that he had observed Larquin on the day of the dis-
charge creating any sort of disturbance with the other
employees or that Larquin's prior work performance,
which he considered generally unsatisfactory, motivated
his discharge decision.
Ferrer, on the other hand, testified that although he
had no advance knowledge from Petrizzo that Larquin
would be fired, and although Petrizzo did not communi-
cate a reason to Larquin, he was sure that Larquin was
fired because, on that day but not before then, he-had
been urging a slowdown. Unfortunately for Respondent,
Ferrer was equally sure that such conduct was not the
cause of the discharge but rather that he was fired be-
cause of his misconduct in cursing at other employees.
Thus, Ferrer testified, "I think that the reason that he
was laid off, it was because of these-the way he-he
was cursing at everybody and everybody else and not
because of the slowdown," and that this conduct oc-
curred only moments before the discharge. Brady, in
whose department Larquin worked and who had deter-
mined to fire Larquin and the,others' in July 1985, testi-
fied that he did not learn of the discharge until later and
that to the best of his understanding, Larquin was fired
for arguing or fighting and that he was not aware that
Larquin had ever urged employees to engage in a slow-
clown.
E. The Postdischarge Events
On Monday, 13 January, Larquin, Santiago, and San-
tiago's wife drove to the plant about 6:30 a.m., to try and
persuade Ferrer to again intercede with Petrizzo to have
them reinstated. They waited for Ferrer to arrive and
spoke with him outside the plant. Gloria Santiago, who
knew Ferrer for several years, was the principal spokes-
person. There was a brief conversation in which Ferrer
was told that the two men wanted to return to work.
According to the credited testimony of Gloria Santiago,
Ferrer replied that "your husband is the leader of,the
union, and we, can't have a union here because if the
union comes in we'll have to close." The conversation
ended, with Ferrer stating that he would see what he
could do about their reinstatement after such request was
repeated. The testimony of the three General Counsel's
witnesses is in substantial accord regarding this `meeting,
while Ferrer did not specifically testify about this event.
Several days later, at Ferrer's request, they all met
again at a liquor store he owned in Elizabeth, New
Jersey. Ferrer asked them what they wanted, to which
they replied that they wanted their jobs back. In addi-
tion, Santiago and Larquin said they wanted wages lost
as a result of their discharges and the wage increase that
had been promised `around Christmas time. Ferrer com-
mented that they should have spoken to him before they
became 'involved with a union. Furthermore, he told
them he could do nothing about getting them any money
but he would see what could be done about reinstate-
ment. He also repeated his statement that the Company
would close rather than deal with a union in which case,
he added, even he would have to collect unemployment.
The foregoing account is based on a composite of the
credited testimony of'the three General Counsel's wit-
nesses . Ferrer did testify about this meeting and denied
that there was any mention of a union, that he made any
of the threats attributed to him, and that the only subject
discussed was reinstatement. I do not accept Ferrer's ac-
count of this meeting. The testimonial demeanor of the
General Counsel's witnesses throughout was much more
favorable. Ferrer's testimony generally was inconsistent
and self-contradictory (particularly concerning' the
reason for the firings), and this second meeting, which he
requested (a matter about which he also was evasive),
was in keeping with the first meeting, which as noted, he
did not specifically deny. I conclude that Ferrer, as well
as Petrizzo, were not reliable witnesses and that their tes-
timony concerning the alleged violations of the Act was
not candid or complete.
F. Analysis
1. The discharges of Santiago and Larquin
It is now firmly established that if the General Counsel
has made a prima facie showing that an employer's dis-
charge decision was motivated by protected conduct, the
employer has the burden of persuading , by a preponder-
ance of the evidence, that such discharge would have oc-
curred even in the absence of that protected conducts
Whether or not an inference of a discriminatory motive
exists , rests on the presence , or absence , of various indi-
cia knowledge of protected conduct , the timing of the
discharge in relation to such conduct , animus or hostility
towards the protected activities-including the existence
of other independent violations of the Act-and, the va-
lidity of the asserted business justification for the dis-
charge. In this last respect, the General Counsel notes in
his brief, citing Shattuck Denn Mining Corp. v. NLRB,
362 F.2d 466 , 470 (9th Cir. 1966): "If [the administrative
law judge] finds that the stated motive for a discharge is
false, he certainly can infer that there is another motive.
More than that, he can infer that the motive is one that
the employer desires to conceal-an unlawful motive-at
least where, as in this case , the surrounding facts tend to
reinforce that inference."
Applying these guidelines to the credited evidence, I
find there is a substantial basis for ` concluding that , a
prima facie case , and a compelling one at that, has been
established with respect to the discharges of Santiago
and Larquin. The following recapitulation of the eviden-
tiary highlights shows that on 10 January, Santiago and
Larquin engaged in significant protected activity by so-
liciting union membership from their colleagues at the
workplace.3 This ,conduct became known to Respondent
2 See generally Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984), for
a discussion of the Wright Line analysis in discrimination cases.
2 Larquin served only as a lookout on the morning of 10,January whsle
Santiago did the actual card distribution Larquin nailed his own coffin,
however, by joining Santiago in direct card distribution ithat day after
Continued
414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
almost immediately, for within hours Santiago's supervi-
sor, Greenough, cautioned him about participating in
such conduct. The involvement of Santiago and Larquin
in union activity was a repeat display of a "negative" at-
titude towards the Company for it clearly showed their
dissatisfaction with employment conditions. These two
employees previously were, linked in a protest regarding
compulsory overtime for which they had been fired and,
after a joint appeal, ultimately reinstated. Whether or not
this earlier conduct implicated rights under the Act is
not an issue in this case. However, it does reinforce the
conclusion that Respondent considered them as a source
of friction between management and employees for
which a corrective measure (discharge) was required. In
fact, one of Respondent's defenses is that they were fired
in 1986 for the same reason for which they had been
fired in 1985. Thus,' we have the element of company
knowledge of protected activity.
Respondent's denial of knowledge is without merit.
Not only is there direct evidence of such knowledge in
Greenough's statement to Santiago, but it is confirmed
by Ferrer's statements on 13 January and a few days
later to Larquin, Santiago, and his wife on the occasions
outside the plant and at the liquor store when they
sought Ferrer's help in securing their reinstatement as he
had done in July 1985. Moreover, there is strong circum-
stantial evidence that Petrizzo learned of the card distri-
bution immediately, in the-morning and in the afternoon
of 10 January. Petrizzo lauded his "secret service" for
ferreting employee "negative" attitudes and when this is
combined with the statements of Greenough and Ferrer,
and the pretextual excuses given for the discharges (dis-
cussed more fully below), the inference of such knowl-
edge by Petrizzo prior to the discharges is inescapable.
"The same set of circumstances may be relied on to sup-
port both an inference of knowledge and an inference of
discrimination." Coca Cola Bottling Co., 237 NLRB 936,
944 (1978).
The other aspects of the prima facie case are that the
discharges came immediately (the same day and next) on
the heels of the union - activity, they were done in the
middle of a day and before the end of a pay period; they
were effectuated in an unprecedented manner, i.e., by
Petrizzo himself; no supervisor was aware of or consult-
ed about, the discharges; there is other evidence of
animus towards -the union activity (see discussion below
regarding the independent 8(a)(1) allegations), no reason
at all was stated at the time of the' discharges; and, final-
ly, the reasons for the discharges advanced in this pro-
ceeding are so flimsy and paperthin as to be almost non-
existent.
We turn then to the Respondent's purported justifica-
tion for firing both men, i.e., that Petrizzo claimed they
both had been engaged in fomenting a slowdown cam-
paign for several weeks among the other employees. Yet
not a single supervisor or, manager was aware of such
conduct, not a single employee supported the testimony,
work, thus sealing his fate for the discharge that followed the next day. If
Respondent was not fully aware of Larqum's union involvement in the
morning of 10 January, as discussed below, it undoubtedly learned of his
union activity that afternoon.
and, most significantly, Petrizzo conceded that he al-
lowed and permitted such disruptive conduct to occur
without so much as a word of displeasure to anyone.
Considering Petrizzo's total involvement in the Compa-
ny-physically, emotionally, and financially-I And it in-
conceivable that he maintained total silence in the face of
such serious misconduct. On the other hand, if as I con-
clude, the allegation of "slowdown" is but Petrizzo's eu-
phemism for union activity, it is not surprising, and in
keeping with his managerial style, that immediate, and
forceful action was taken to root out this manifestation
of "negative attitudes."
Accordingly, I reject Petrizzo's assertion that he had
just cause (incitement of a work slowdown) for firing
Santiago and Larquin. I am confirmed in this fording by
Respondent's own case , for- as described above, various
other contradictory , and inconsistent reasons were of-
fered for the necessity of firing the two men in such pre-
cipitous manner. Thus, Respondent also claims that, San-
tiago was fired for loafing on the day of discharge, that
Larquin was fired for loud and disruptive behavior im-
mediately prior to his discharge, and that both were fired
for insubordination, i.e., refusing to perform specific as-
signments . In cases of this kind it has been said that "an
unfavorable inference can be drawn from an employer's
shifting explanations for its treatment of an employee."
Louisiana Council No. 17, AFSCME, 250 NLRB 880, 886
(1980) (see fn. 38 and cases cited). The instant case is a
classic example of that proposition . Inasmuch as Petriz-
zo's reasons are without merit and it was he who made
the decision, a fortiori the reasons advanced by other Re-
spondent officials are equally fallacious. The insubstan-
tial, unreliable, and pretextual justification for firing San-
tiago and Larquin does not satisfy Respondent's burden
of overcoming the General Counsel's strong prima facie
case. According, I conclude that Respondent violated
Section 8(a)(3) and (1) in discharging these employees as
alleged in the complaint.
2. The independent 8(a)(1) allegations
The complaint alleges that Respondent, through
Ferrer during the two postdischarge conversations he
had with the Santiagos and Larquin, unlawfully prom-
ised a wage increase, threatened the closing of the plant
in the event of unionization, and unlawfully solicited
grievances.
The credited evidence establishes that on both occa-
sions,, Ferrer made statements to the effect that the plant
would close if employees obtained union representation.
No lengthy discussion is required to conclude that such
remarks are coercive and violated Section 8(a)(1)' of the
Act as alleged.
The credited evidence also establishes that at no time
during these meetings did Ferrer so much as suggest that
wage, increases would be granted if employees cease
their support for the Union. In fact the General Coun-
sel's witnesses all testified that Ferrer categorically re-
jected the demand for reinstatement.- The General Coun-
sel does not pursue this allegation in his brief, but wheth-
er or not it is abandoned, I conclude there is no eviden-
tiary support for it and therefore find it lacks merit.
A. J. ROSS LOGISTICS
The evidence regarding the allegation of solicitation
shows that on 13 January, at the meeting outside the
plant, Ferrer was told that the men wanted reinstatement
to which he replied that he would see what he could ac-
complish. However, the conversation was initiated by
the discriminatees and Ferrer did, not "solicit" or ask
their wishes about anything. On the other hand, the
meeting at the liquor store began by Ferrer asking the
discriminatees what they wanted and again saying that
he would see what he could 'do about their request for
reinstatement. The General Counsel argues that by such
conduct, Respondent unlawfully solicited grievances.
The vice in such violation lies not in the solicitation
itself but rather in the promise-be it inferred or explic-
it-that the grievance will be corrected without union
representation. Uarco Incorporated, 216 NLRB 1 (19.74).
Of course, without a solicitation by the employer to
begin with there can be no unlawful solicitation at all
(which is not to say that there might not be an unlawful
promise). Consequently, there is no factual support to the
General Counsel's argument with respect to the meeting
on 13 January.
The meeting at the liquor store, however, raises differ-
ent considerations because at that time Ferrer did ask,
i.e., "solicit," their concern or "grievance." Nevertheless,
I do not believe that the context in which that question
was asked constitutes the type of conduct envisioned by
the Board when it refers to the soliciting of grievances in
order to remedy them without union representation.
Here the "grievance," if it be that, concerned not an on-
going term of employment, e.g., wages, hours, discipline,
etc., which would be improved if employees ceased their
union support, but rather a discriminatory discharge. Al-
though it might be argued that Respondent might have
considered reinstatement if the men abandoned their
union interest, thus- satisfying the element of corrective
action, that inference appears too remote in the circum-
stances of this case . Considering the high degree of evi-
dence supporting the case for ;finding that the discharges
were discriminatory, Ferrer's question seems more rhe-
torical than solicitous. Moreover, absent controlling case
authority, I am reluctant to conclude that discussions
concerning possible reinstatement of illegally discharged
employees, albeit .that it is conditioned on foregoing
union representation, constitutes an unlawful solicitation
of grievances within the lexicon of Board law. It would
suffice to deal with and remedy that conduct as part of
the 8(a)(3) violation and therefore, I will recommend dis-
missal of this distinct 8(a)(1) allegation.
CONCLUSIONS OF LAW
1. Respondent is an employer 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. By discriminatorily discharging and refusing to rein-
state its employees Miguele Santiago and Anselmo Lar-
quin because of their activity on behalf of the Union, Re-
spondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act.
415
` 4. By threatening its employees with the closing of its
plants if they seek representation by a union, Respondent
violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. Respondent has not violated the Act in any respect
other that specifically found.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the purposes of
the Act. Having found that Respondent discharged and
failed to recall Miguel Santiago and Anselmo Larquin in
violation of Section 8(a)(1) and (3) of the Act, I shall
recommend that Respondent be ordered to offer them
immediate and full reinstatement to, their former positions
of employment or, if these positions are not available, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously
enjoyed.
I shall also recommend that Respondent be ordered to
make each of them whole for any loss of earnings they
may have suffered from the date of their respective dis-
charges to the date each is offered reinstatement. Their
loss of earnings shall be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 1SrLRB 289 (1950),
and shall include interest as set forth in Isis Plumbing
Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231
NLRB 651 (1977).
I shall also recommend that Respondent remove from
its files any reference to the discharges of Santiago and
Larquin and notify them in writing that it has done so,
and that evidence of their discharges will not be used as
a basis for future, personnel action against either of them.
Sterling Sugars, 261 NLRB 472 (1982).
'The prayer for relief in the complaint requests, as part
of the remedy, authorization for discovery proceedings
pursuant to the Federal Rules of Civil Procedure in
order to secure compliance with any order of the Board.
The General Counsel does not contend that there are
any special circumstancees necessitating departure from
the standard remedy in similar cases and I will not in-
clude that requested remedy here. Arorthwind Mainte-
nance Co., 281 NLRB 317 (1986); 0. L. Willis, Inc., 278
NLRB 203 (1986).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
4 If no exceptions are filed as provided by Sec. 102.46 of, the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, A. J. Ross Logistics, Inc., Keasbey,
New Jersey , its officers, agents, successors , and assigns,
shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees in regard to hire or tenure of employment, or
any term of condition of employment, because of their
activities on behalf of United Steelworkers of America,
District No. 9, or any other union.
(b) Threatening employees that the plant will close if
they seek to be represented by a union.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to Miguel Santiago and Anselmo Larquin im-
mediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or other
rights and privileges, in the manner set forth in the
remedy section of this decision.
(b) Make whole Miguel Santiago and Anselmo Lar-
quin for any loss of pay they may have suffered by
reason of Respondent's unlawful discharges in accord-
ance with the remedy section of this decision.
(c) Remove from its files any reference to the dis-
charges of Miguel Santiago and Anselmo Larquin and
notify them in writing that this has been done and that
evidence of their unlawful discharges will not be used as
a basis for future personnel action against either of them.
(d) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay-
roll records, social security payment records , timecards,
personnel records and reports , and all other records nec-
essary or useful to the analysis of the amount of backpay
due under the terms of this Order.
(e) Post at its place of business in Keasbey, New
Jersey, copies of the attached notice marked "Appen-
dix."5 Copies of the notice, on forms provided by the
Regional Director for Region 22, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to ' employees are cus-
tomarily posted . Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order, what steps Respondent
has taken to comply.
IT IS FURTHER ORDERED that the complaint be, and it
is hereby, dismissed in all other respects.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD -
An Agency of the United States Government
The National Labor Relations -Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge , or otherwise discriminate
against our employees , because of their activities o'on
behalf of United Steelworkers of America, District No.
9, or any other union.
WE WILL NOT threaten our employees that the plant
will close if they seek to be represented by a union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed in Section 7 of the Act.
WE WILL offer Miguel Santiago and Anselmo Larquin
immediate and full reinstatement to their former positions
or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or
other rights and privileges, and make them whole, with
interest, for any loss of earnings they may have suffered
because we unlawfully fired them.
WE WILL remove from our files any reference to the
discharges of Miguel Santiago and Anselmo Larquin, and
we will notify them that this has been done and that evi-
dence of their unlawful discharges will not be used as a
basis for future personnel actions against either of them.
A. J. Ross LOGISTICS, INC.
S If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor, Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."