Emenee Accessories, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1983

267 N.L.R.B. 1344 (N.L.R.B. 1983)

EMENEE ACCESSORIES, INC.
Emenee Accessories, Inc. and Plastic Moulders &
Novelty Workers' Union 132, International
Ladies' Garment Workers' Union, AFL-CIO
and Angel Luis Avila. Cases 2-CA-18351, 2-
CA-18425, and 2-CA-18509
30 September 1983
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 18 October 1982, Administrative Law Judge
Arthur A. Herman issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and Respondent filed exceptions and
a brief in support thereof, and an answering brief
to the General Counsel's exceptions.
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 briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions as modified and to adopt the recom-
mended Order as modified. 2
1. The judge failed to make any finding regard-
ing the allegation that Respondent violated Section
8(a)(1) of the Act by interrogating employee Avila
about his support for the Union. However, the
judge did credit Avila's testimony that Respond-
ent's president, Yahre, approached him in early
September 19813 and asked him to sign a paper
stating that he did not want the Union and that,
shortly thereafter, Respondent's principal, Nieves,
asked him why he would not sign the paper. On
the basis of these credibility resolutions, we find
that Respondent interrogated Avila in violation of
Section 8(a)(1) of the Act.
2. We disagree with the judge that Respondent
created an impression of surveillance of its employ-
ees' union activities in violation of Section 8(a)(1)
of the Act when Nieves stood in front of the build-
ing on the morning of 27 August and observed the
union organizers conversing with employees who
were reporting for work. As the Board found in
Milco Inc., 159 NLRB 812, 814 (1966), enfd. 388
F.2d 133 (2d Cir. 1968), "[u]nion representatives
I Respondent and the General Counsel have excepted to certain credi-
bility findings made by the judge. It is the Board's established policy not
to overrule an administrative law judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Prod-
ucts, 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 We shall modify the Judge's recommended Order to reflect our find-
ings that Respondent interrogated an employee in violation of Sec.
8(a)(1) of the Act and that it did not engage in unlawful surveillance of
its employees' union activities.
3 All dates are in 1981, uniess otherwise indicated.
267 NLRB No. 213
and employees who choose to engage in their
[u]nion activities at the [e]mployer's premises
should have no cause to complain that management
observes them." Accord: Chemtronics Inc., 236
NLRB 178 (1978); Larand Leisurelies, Inc., 213
NLRB 197, 205 (1974), enfd. 523 F.2d 814 (6th Cir.
1975). In this case, any conversations between
union organizers and Respondent's employees were
conducted in full public view outside Respondent's
place of business, and Respondent's observation of
this activity was not unlawful surveillance. There-
fore, we shall dismiss this allegation of the com-
plaint.
3. We agree with the judge that Respondent's
discharge of Angel Avila did not violate Section
8(a)(4), (3), and (1) of the Act, but we do so only
for the reasons set forth below.
As the judge found, Avila was unlawfully laid
off on November because of his support for the
Union, on approximately the same day Respondent
had received a complaint alleging several violations
of Section 8(a)(1) of the Act. The judge concluded
that Respondent's purported reason for laying off
Avila, lack of work, was a pretext. He reasoned
that Avila was Respondent's most senior employee,
that he had never before been laid off, that he was
a known union adherent, 4 and that he was laid off
the same day the complaint arrived.
On 23 December a second complaint against Re-
spondent issued alleging the unlawful layoff of
Avila. On 30 December Respondent contacted
Avila requesting that he return to work on 5 Janu-
ary 1982. On Avila's third day back, he was given
14 molds to work on, which he testified was a
larger order than he had ever worked on before.
However, the judge credited the testimony of
Nieves and employee Garcia who stated that 14
molds was not an unusually large order and was in
no way an onerous work assignment. Avila, none-
theless, refused to work on all 14 molds at once
and was discharged that day as a result.
Specifically, the judge credited Nieves' testimo-
ny that he told Avila he needed all the molds done
so he could make one shipment of the entire order,
and that Avila refused to do it. Nieves then left
without saying anything and returned an hour
later, again telling Avila that the job was urgent.
Avila was not swayed. Nieves went back to the
office, told Yahre about the situation, and together
they approached Avila a third time. When Avila
continued to refuse to work on all 14 molds, they
returned to the office to make out his final check.
Nieves then handed the check to Avila and dis-
4 Avila was the only employee who refused to sign the antiunion peti-
tion.
1344
EMENEE ACCESSORIES, INC.
charged him. The judge did not credit Avila's
statement that Nieves threatened him with bodily
harm for his use of the Board's processes, and he
found that Avila was fired only for refusing to do
the work assigned to him. The judge concluded
that Avila's discharge did not result from his union
activity because, by January 1982, there was no
union activity; rather, the Union's efforts ceased in
November 1981.
We disagree with the judge's conclusion that
Avila's union activity was too remote in time from
his discharge possibly to have been a motivating
factor in Respondent's discharge of him. Instead,
we find that the General Counsel did make out a
prima facie case that Avila was fired because of his
union support and his use of the Board's processes.
Avila had been discriminatorily laid off on 9 No-
vember because of his union sympathies and was
recalled just days after Respondent received the
complaint alleging his layoff to have been unlaw-
ful. We find, based on the judge's credibility reso-
lutions, that Respondent successfully rebutted the
prima facie case made out by the General Counsel.
Wright Line, 251 NLRB 1083 (1981). The judge
credited Nieves' version of the discharge incident;
i.e., that Nieves and Yahre both asked Avila to
complete all 14 molds, which was not an unusually
large number to work on; that Avila refused; and
that, after the third request, Nieves gave Avila his
final paycheck and dismissed him for the sole
reason that he refused to perform his duties. We
shall therefore dismiss the portion of the complaint
alleging that Avila's discharge violated the Act.
ORDER
The National Labor Relations Board adopts as
its Order the recommended Order of the adminis-
trative law judge, as modified below, and orders
that the Respondent, Emenee Accessories, Inc.,
New York, New York, its officers, agents, succes-
sors, and assigns, shall the take the action set forth
in the Order as modified.
1. Delete paragraph l(b) and insert the follow-
ing:
"(b) Interrogating employees regarding their
union activities."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with
plant closure in order to induce them not to
select Local 132, or any other labor organiza-
tion, to represent them.
WE WILL NOT interrogate our employees re-
garding their union activities.
WE WILL NOT aid or abet our employees in
the preparation of any antiunion petition, nor
will we deliver any such petition to Local 132
or to any other labor organization.
WE WI.L. NOT lay off our employees be-
cause of their activities on behalf of and sym-
pathies for Local 132, or any other labor orga-
nization.
WE WILL. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the Act.
WE WILL reimburse Angel Luis Avila and
make him whole for any loss of pay he suf-
fered by reason of the discrimination practiced
against him, with interest.
EMENEE ACCESSORIES, INC.
DECISION
STATEMENT OF THE CASE
ARTHUR A. HERMAN, Administrative Law Judge: On
September 24, 1981, Plastic Moulders & Novelty Work-
ers' Union Local 132, International Ladies' Garment
Workers' Union, AFL-CIO, herein called Local 132 or
the Union, filed a charge against Emenee Accessories,
Inc., herein called Respondent, in Case 2-CA-18351; on
November 6, 1981, a complaint issued thereon, alleging
that Respondent interrogated its employees regarding
their union activities, threatened its employees with plant
closure if they selected Local 132 to represent them, ini-
tiated a petition for its employees to sign rejecting Local
132, and urged its employees to spy on other employees
regarding their union activities, all in violation of Section
8(a)(1) of the National Labor Relations Act. On Novem-
ber 10, 1981, Angel Luis Avila, an employer of Respond-
ent, filed a charge in Case 2-CA-18425, and on Decem-
ber 3, 1981, filed an amended charge; on December 23,
1981, a complaint issued thereon, alleging that Respond-
ent engaged in surveillance of union meetings with em-
ployees of Respondent, and laid off Avila because he
supported Local 132, all in violation of Section 8(a)(1)
and (3) of the Act. On January 7, 1982, Avila filed an-
other charge in Case 2-CA-18509, on which a third
complaint issued on January 27, 1982, alleging that Re-
1345
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent threatened Avila with bodily harm, imposed
more onerous terms and conditions of employment on
Avila, and finally discharged Avila on January 7, 1982,
all because he supported Local 132, and filed a previous
charge and gave testimony in connection therewith, and
all in violation of Section 8(a)(l), (3), and (4) of the Act.
Thereafter, on June 15, 1982, an order consolidating
cases and notice of hearing issued incorporating all of
the complaints. Respondent duly filed answers to the
complaints denying the commission of unfair labor prac-
tices.
Upon due notice, a hearing was held before me in
New York, New York, on July 1 and 2, 1982. Briefs
were filed by the General Counsel and Respondent and
have been duly considered.
On the entire record in this case, the briefs, and from
my observation of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a New York corporation engaged in the
manufacture, assembly, and nonretail sale of novelties
and related products at its plant located in New York,
New York. Annually, Respondent sells and ships goods
and materials valued in excess of $50,000 directly to
points located outside the State of New York. The com-
plaints allege, Respondent admits, and I find that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
11. LABOR ORGANIZATION
The complaints allege, Respondent admits, and I find
that Local 132 is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent's plant is located at 270 W. 39th Street, in
New York City, an industrial building occupied by many
tenants wherein Respondent leases approximately 75 per-
cent of the space on the 18th floor. Its two principals are
Herbert Yahre, its president, and Eudardo Nieves. Re-
spondent employs approximately 15 production employ-
ees consisting of mold makers, casters, solderers, clean-
ers, polishers, and general floor workers. Among the
novelties manufactured by Respondent are buckles, ear-
rings, neck drops, and trophy tops. Rubber molds of the
novelties are placed in machines, powdered, and cov-
ered, and then liquid metal is poured in. The machines
spin for a short period of time, then stop, and the figures
are removed. The process is then repeated until all of the
molds have been casted.
On Wednesday, August 26, 1981, the Union began an
organizing campaign among Respondent's employees.'
Three of its organizers, namely, Melida Pena, Roberto
Marrero, and Mario Sanchez, stationed themselves out-
side the entrance to the building occupied by Respond-
ent at or about 7:30 a.m. They approached persons who
appeared headed toward the building and inquired as to
I Respondent's employees had not been previously represented by any
labor organization.
whether they were employees of Respondent. Upon re-
ceiving an affirmative response, the employees were
asked if they were interested in being represented. The
organizers stayed for about an hour, returned again at
noon, and again at 4 p.m. Melida Pena testified that,
when they repeated this procedure the next day, she no-
ticed that the employees ignored the organizers. She
stated also that one of the employees whispered to them
that Nieves was standing in front of the building watch-
ing the organizers and the employees, 2 and that he
stayed there until the organizers left about an hour and a
half later. On Friday, August 28, according to Pena, the
organizers returned to the premises but found that the
employees would have nothing to do with them. At
noon, the three organizers, plus Leo Suarez, a Local 132
business agent, went to the 18th floor and engaged
Nieves in conversation. Pena testified that Suarez told
Nieves that Local 132 was trying to organize the shop
but Nieves responded that he could not afford a union,
and that he had asked the employees and they told him
that they did not want a union. Nieves also told Suarez
the he was going to talk to Sam Eisenberg, the Union's
manager-secretary.
Nieves testified that he had been a Local 132 shop
chairman for 10 years prior to forming his own business;
that the first time he learned about the Union's organiza-
tional drive was at lunchtime when Radames Feliciano,
an employee, told him; that he saw the union organizers
outside the building on only one occasion while he was
passing by to go somewhere; that a day or two later,
union organizers came to the shop and told him that they
wanted to organize the employees, to which he respond-
ed that that was their problem; that about 3 days later,
he called Eisenberg and asked him what was going on,
and Eisenberg invited him to come to the union office;
that he went to Eisenberg's office on a Tuesday in late
August and told Eisenberg that he had a small shop and
that he could not compete with the Union. Whereupon,
according to Nieves, Eisenberg said that it was not the
Union's fault, but that the employees wanted the Union;
and so Nieves volunteered, that if Eisenberg wanted, "I
could call the workers and get an answer for him."
Eisenberg testified that Nieves called him on Friday,
August 28, and asked, "Sam, what are you trying to do
to me?"3 "You sent your people here to organize my
shop. My workers don't need a union. I give them ev-
erything. They don't want a union.... Why are you
picking on me? We're a small shop, and we can't afford a
union." Eisenberg then invited Nieves to his office and
they met on Tuesday, September 1. Again, Nieves re-
peated, "We don't need a union, I can't afford a union,
my workers don't want a union." When Eisenberg asked
Nieves how he knew the employees did not want a
union, Nieves responded, "Well, I go back, I'm going to
talk to them." Whereupon, Eisenberg advised him not to
do it because he would be violating the law. Nieves said
2 On cross-examination, Pena stated that she did not see Nieves on
August 26, but did see him on August 27.
s According to Eisenberg, he had known Nieves for almost 20 years,
and he quotes Nieves as having said to him during the call, "I look up to
you like a father. Why are you trying to do this to me?"
1346
EMENEE ACCESSORIES, INC.
he would let Eisenberg know, but he did not contact
him. Eisenberg further states, however, that he did re-
ceive a telephone call from Yahre on Friday, September
4, and quotes Yahre as a saying, "Our workers don't
want the Union. They don't need the Union." When Ei-
senberg asked him how he knew, Yahre replied, "I spoke
to them. We asked all the workers, and they don't want
the Union. In fact, I'm going to send you a list with their
names and their signatures, that they don't want the
Union." On September 9, Eisenberg received what I
shall call a petition, addressed to Eisenberg, written on
Respondent's stationery, which reads as follows: "The
undersigned Employees of Emenee Accessories have
taken a vote and have elected not to have a union repre-
sent us." The petition bore the signatures of 13 employ-
ees 4 and was notarized by Theresa Radzewich. 5
Yahre's testimony explains how the petition came
about:
One of my workers came to me one day, I think
it was a Thursday, he asked me if they could stop
work, my shop could end work early, he'd like to
hold a meeting between him and the workers. 6
I asked him what the meeting was about. He said
to me, the union wants to come into the place, and
I'd like to speak to the workers about it.
I told him all right. So, at about a quarter after
four, they stopped working.
I walked into the office, and they held their
meeting outside. I didn't hear what was said at the
meeting.
Then my worker came in to me, the next morn-
ing. He told me that he spoke to everybody in the
factory, and he wanted to know if they want a
union or not.
He told me that the people in the factory do not
want a union, and he'd like to send such a letter to
the union, but he doesn't know how to word it,
would I please write the letter for him.
I wrote the letter, and gave him back the letter.
And then I didn't see it until he handed it back to
me with these signatures on it, and he asked me if I
would take it down and have it notarized.
Q. And did you take it down the next morning,
take it down to get it notarized?
A. Yes, I did.
Q. And where did you go to get it notarized?
A. I went to the [Bank] on the corner of 38th
Street and Eighth Avenue.
Q. And when you went down, did they notarize
the document?
A. No.
Q. Why?
A. The notary told me that each witness has to
swear and sign in front of the notary that what it
says on top is true.
Q. And what did you then do?
4 Avila's signature is not on the petition, and it appears that he was the
only employee who refused to sign it.
$ Radzewich is an employee of the Franklin Savings Bank.
a It was established on cross-examination that the worker's name was
Radames Feliciano, a solderer.
A. I took the letter back to my place. I rewrote
the top, I explained the situation to the people in
the factory, I told them we all have to go-you'll
all have to go and sign in front of a notary, person-
ally.
A. They all went down to the bank, all in one
time, each individual raised their hand and swore in
front of the notary that this was true, and they gave
me back the letter to send to the union.
Q. Did you, in fact, send General Counsel's Ex-
hibit No. 2 to the union?
A. Yes, I did.
Q. Now, did you ask any employee to sign this
letter?
A. No.
Q. Did you ever asked Avila to sign this letter?
A. No.
Q. Either in the place, or before the notary?
A. No.
On cross-examination, Yahre admitted that he had
been aware of the Union's organizing campaign for about
a week prior to the signing of the petition, that he ac-
companied the employees when they went to the bank to
have their signatures notarized, that he observed that
Avila had not signed the petition, that he mailed the peti-
tion to Eisenberg, and that he called Eisenberg to tell
him about the petition.
Avila testified that he was hired by Respondent in No-
vember 1974, and that although there were layoffs of
other employees in the slow season over the years, he
enjoyed uninterrupted employment until his layoff on
November 9, 1981. He stated that he engaged the
Union's organizers in conversation one morning in front
of the premises during the latter part of August 1981 and
that he attended an afternoon meeting of all employees
on the premises about the same time. According to
Avila, Yahre addressed the employees and Feliciano in-
terpreted for him. He stated that Yahre told the employ-
ees that, if they signed cards for the Union, Respondent
would have to close the factory for 6 months; nothing
also was said at the meeting. Avila also testified that,
when he arrived at work the next morning, in addition to
the union organizers being there, Yahre and Nieves were
also in front of the building;8 that as he was entering the
building along with another person, Julio, union organ-
zier Marrero engaged Julio in conversation, and Nieves
came in behind them as they approached the elevator,
but did not enter the elevator with them. Avila further
tesitfied that one morning in early September 1981 as he
was working in the shop Yahre approached him and
asked him to sign a paper saying that he did not want
the Union;9 Avila refused to sign. Shortly thereafter,
I Yahre admitted that Avila was Respondent's first employee and had
seniority over all the other employees. It was Avila's uncontroverted tes-
timony that Respondent entrusted him with a set of keys to the premises
so that he could open up in the morning. Although Avila regarded him-
self as a caster, and Respondent concurred with that classification, Avila
also claimed that he did soldering, washing and polishing. and deliveries.
a Avila stated that in the 7 years that he had been working for Re-
spondent he had never seen Yahre or Nieves in front of the building
when he arrived at work.
9 Just before Yahre approached Avila, Avila saw Yahre ask Isidro
Garcia, a caster, to sign the petition and Garcia complied
1347
DECISIONS OF NATIONAL I ABOR RELATIONS BOARD
Nieves came by and inquired of Avila why he did not
sign the paper. Avila again refused to sign, and Nieves
told him that Avila would be responsible if anything
happened at the plant. Later that day, at or about 2:30
p.m., Avila stated that all of the employees were told to
go to the bank; Yahre went along, and all of the employ-
ees, with the exception of Avila, signed the petition in
front of a notary public.
Hector Oliveres, a solderer, was called as a witness by
Respondent. He testified that he was present at a meeting
in the plant in late August or September 1981 at which
Feliciano led a discussion on whether the employees
wished to have a union represent them, and that neither
Nieves nor Yahre was present. He stated that the em-
ployees decided against having a union, and that the next
day he signed the petition referred to above. In response
to my questions, Oliveres said that the employees went
to the bank with Yahre and that he signed the petition in
the bank. On cross-examination, Oliveres admitted that
he had had a problem with a former employer and that
the Union did nothing for him. He also stated, on cross-
examination, that the petition had been passed around at
the meeting in the plant, and that he signed it at that
time; he placed the time around 4:30 or 5 p.m.; yet, he
also stated that that same afternoon, after the meeting, all
of the employees were told to go to the bank by Yahre
because the original petition that they had signed was
not suitable. Another solderer, Adelila Lugo, was called
by Respondent to testify regarding the meeting and the
bank incident and her testimony tracks Oliveres' testimo-
ny, except that she added the fact that the paper she
signed at the meeting had no writing on top; it was a
blank piece of paper.
The above narration of fact led Local 132 to file its
charge in this proceeding on September 24, 1981, despite
the fact that the Union ceased its organizational activities
in early September, and did not resume such activity
until the first week in November 1981.' ° Avila testified
that as he arrived at work on November 2, 1981, he saw
the union organizers outside the building. As he stopped
to converse with them, Nieves came along and stood
about 7-10 feet away from Avila watching Alvila's
group. After about 10 minutes Avila went into the build-
ing while Nieves remained outside. One week later,
Monday, November 9, 1981, at 4:30 p.m., as Avila was
preparing to leave the plant, Yahre told Avila that he
was being laid off because there was no work for him,
and that he should call the plant the next day. Avila
called on November 10, but Yahre told him there was no
work.t" Avila continued to call on several occasions for
about a week and a half, but each time he was given the
same negative response by Yahre.
Yahre testified that he had laid off Avila because of
lack of work. He stated that business is slow from the
last week in October through Christmas, and through
Respondent Exhibit 1, that on October 22, 1981, Re-
spondent laid off nine employees of various classifica-
i' Coincidentally, a complaint based on the Union's charge issued on
Friday, November 6, 1981.
'' As stated above, Avila filed his first charge against Respondent on
November 10, 1981, and amended it on December 3. On December 23,
1981, a complaint based on this amended charge issued.
tions other than caster, 2 and that on November 5, Justo
Morales, a caster, was also laid off. Yahre claimed that
employees "were laid off according to seniority, and
other reasons." When pressed for "other reasons," he re-
sponded, "Type of work, the quality of the work they
did, and business reasons. I have some people that work
better than others." But, when asked further, on direct
examination, why Avila was laid off, Yahre responded,
"Lack of work." Yahre went on to say that about a
week to 10 days after Avila was laid off, Respondent got
a rush order and attempted to reach Avila by telephone,
but that Avila's number was changed to an unlisted
number and therefore he could not be reached.
On December 30, 1981, Respondent sent Avila a regis-
tered letter telling him to report for work on January 5,
1982. Avila worked on January 5 and 6. When Avila re-
ported for work on January 7, 1982, he found 14 molds
at his table. He placed 4 of them aside and prepared to
work on 10, when Nieves approached him and told him
to do all 14 molds. Avila protested that it was too much
to do at one time but Neives insisted that he do them all.
According to Avila, when he refused, Nieves threatened
bodily harm because Avila had spoken to the National
Labor Relations Board. With that, Nieves went to his
office and Avila worked on only 10 molds. At or about
11 a.m., Nieves returned to Avila's work station and
when he saw that Avila had only worked on 10 molds
he went back to the office, returned with Avila's check,
and told Avila he was discharged. Avila further testified
that in all the 7 years that he worked for Respondent he
was never asked to do more than 7 or 8 molds at one
time, and that on the same day, January 7, when he was
ordered to work on 14 molds, Garcia had 7 molds to
work on. 3
Nieves testified that on the morning of January 7 he
walked by Avila's work station and saw that he had put
aside part of the molds that had been given him; that
Nieves told Avila that he needed all the molds done so
that he could make one shipment of the entire order, and
that Avila refused to do it. Nieves stated that he said,
"Nothing. I went back to my work table." Nieves re-
turned about an hour later and once more noticed that
Avila had not done all 14 molds. Nieves again told Avila
the urgency of the job, but to no avail. Whereupon,
Nieves went back to the office, told Yahre about the sit-
uation, and together they approached Avila a third time.
Avila continued to refuse, and they returned to the office
to make out his final check. Nieves handed it to Avila
and discharged him. Nieves further testified that on pre-
vious occasions Avila had worked on more than 14
molds and had never complained, that Garcia and Mo-
rales had each worked on more than 14 molds at a time,
and that it was part of the normal production process.
12 Feliciano was one of the nine employees laid off The exhibit shows
him returning to work on January 21, 1982, but Avila's uncontroverted
testimony was that when he returned to work on January 5, 1982, Feli-
ciano was working. Feliciano was not called to testify.
ts Garcia testified on behalf of Respondent, but when asked by the
General Counsel how many molds he had to work on that day he could
not recall. Garcia did state, however, that he had worked on as many as
18 to 20 molds at one time and that it is not difficult to do 14 molds.
1348
EMENEE ACCESSORIES. INC
Analysis and Conclusions
A. The August-September Events
My interpretation of the facts, as stated above, leads
me to conclude that the following chronology of events
actually occurred. On Wednesday, August 26, 1981.
Local 132 began an organizational campaign in front of
Respondent's premises. Neives, by his own admission.
was made aware of it at lunchtime that day, and that
same afternoon Yahre gathered the employees together
to warn them against aiding the Union. On Thursday
morning, August 27, Nieves stationed himself at the en-
trance to the building for the purpose of observing the
Union's efforts, and did witness Avila conversing with
the union organizers. On Friday, August 28, the union
organizers. unable to make any headway in their organiz-
ing effort with the employees because of Yahre's threat
to close the plant, and Nieves' surveillance, approached
Nieves on Respondent's premises, and this prompted
Nieves to call Eisenberg the same day and arrange for an
appointment to see him the following Tuesday, Septem-
ber 1. Nieves' own testimony regarding his phone con-
versation and meeting with Eisenberg revealed his desire
not to be organized. Following the fruitless meeting on
September I between Eisenberg and Nieves, Yahre, at
the urging of his employee-interpreter Feliciano, com-
posed the petition which was signed by all the employ-
ees, except Avila, and sent to Fisenberg on Friday, Sep-
tember 4, 1981.
I draw these conclusions because I credit the testimo-
ny of Avila on this phase of the proceeding. He im-
pressed my as a frank and honest witness who related
objectively the happenings that occurred at or near Re-
spondent's premises on August and September 1981. On
the other hand, I found Yahre's testimony unconvincing.
In response to a question on cross-examination, "Did you
and Mr. Niev.,s, at this time [September 1981], discuss
your position on whether you wanted a union in there or
not?" Yahre responded, "We didn't care-yeah, we
spoke about it, but it didn't make a difference to us." Yet
when Yahre and Nieves became aware of the Union's or-
ganizational campaign Nieves made a special trip to Ei-
senberg's office protesting to Eisenberg that he would
not be able to compete in the industry if his employees
were organized. And, when Feliciano asked Yahre to
word the petition, he admittedly did it and escorted the
employees to the bank for proper notarization. I find
such actions inconsistent with Yahre's expression of in-
difference and I discredit his testimony in this regard.
Accordingly, I find that Yahre did threaten the employ-
ees with plant closure if they assisted the Union, and that
such conduct violates Section 8(a)(1) of the Act. And,
when Nieves was questioned regarding his observance of
the union organizers on August 27, he half-heartedly ad-
mitted that he did see them on one occasion when he
was on his way somewhere. Yet the testimony on this
point, by Avila and Pena, whom I also credit, was more
detailed and more plausible, and I find therefore that
Nieves did engage in surveillance on August 27, 1981, in
violation of the Act.
Insofar as the petition is concerned, I am convinced
that Yahre aided and abetted Feliciano in its preparation,
permitted its circulation among employees during work-
time in order to obtain signatures, assisted in its proper
execution by escorting the employees to the notary
public, and took it upon himself to mail it to the Union.
And therefore, in light of Respondent's antiunion con-
duct as found above, I further find that Yahre's action in
re the petition restrained and coerced employees in the
exercise of their rights under Section 7, in violation of
Section 8(a)(1) of the Act.' 4
B. The November Events
As stated above, the General Counsel alleges and Re-
spondent admits that Avila was laid off on November 9,
1981. For a better perspective of what transpired, how-
ever, one must look to the surrounding circumstances. It
is uncontroverted that the Union, having filed its unfair
labor practice charge against Respondent on September
24, ceased its activities in September, but resumed its or-
ganizational campaign once again on Monday, Novem-
ber 2, 1981. As Avila arrived for work that day, he was
observed by Nieves conversing with the Union's organiz-
ers. On Friday, November 6, 1981, a complaint issued
against Respondent, and it must be presumed that Re-
spondent received a copy of the complaint on that fateful
day. Monday, November 9. At the close of business that
day Avila was told by Yahre that there was no work for
him, and that he should keep in touch. Avila claims that
he did contact Respondent on several occasions over the
next week and half, but that no work was available.
Respondent contends that theirs is a seasonal industry
and that October through December of every year is the
slow season. It supports its contention by placing in evi-
dence a list of employees laid off commencing on Octo-
ber 22 (Resp. Exh. 1). In addition, Yahre testified that
about a week or so after Avila's layoff, an attempt was
made to recall him because of a rush order that Re-
spondent had gotten, but to no avail because Avila had
his telephone changed to an unlisted number. In further
support of its contention that Avila's layoff was nondis-
criminatory, Respondent cites the fact that Feliciano, the
instigator of the petition and its most antiunion employ-
ee, was one of the employees laid off on October 22.
The General Counsel contends that the layoff of Avila
on November 9 was for discriminatory reasons. It cites
the fact that Avila was the one and only employee of
Respondent when it commenced its business 7 years ago,
its senior employee who was capable of doing other jobs
besides casting, and an employee who never before had
been laid off by Respondent in all of the years he
worked there. The General Counsel further contends
that Respondent was well aware of Avila's preference
for the Union, citing the fact that Avila was the only
employee who did not sign the petition, a fact well know
to Respondent, and that with the resumption of union ac-
tivity on November 2 Avila was observed by Nieves
conversing with union organizers.
I conclude that Avila's layoff for lack of work was a
pretext by Respondent for ridding itself of a union sup-
porter. First, considering the fact that Avila was Re-
14 River Togs. 160 NLRB 58, 60-61 (1966).
1349
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's eldest employee in terms of service and its ini-
tial employee to boot, it appears unlikely that such an
employee would be let go before all of the remaining
employees would be laid off, especially in light of the
fact that never before had Avila been laid off. Second,
Respondent claims that an attempt was made to recall
Avila but to no avail. Yet, when Respondent sought
Avila's return in January 1982 it found a means by
which it could reach him; namely, the postal service.
And, third, Respondent's layoff of Feliciano does not in
any way justify its action toward Avila. No one doubts
the fact that Respondent was experiencing a slowdown
in business when it engaged in laying off employees in
October 1981. The economic necessity had been estab-
lished. But, its choice of employees for layoff becomes
suspect when it includes its most senior employee, and
no valid reason is advanced for selecting him. In addi-
tion, one must not lose sight of the fact that Avila had
been known to Respondent to be a union adherent, and,
on the very day that a complaint against Respondent,
based on a charge filed by the Union, arrives on its
premises, Avila is laid off. 5 It is for all these reasons
that I conclude that Avila's layoff was directly related to
his union inclinations and therefore was of a discrimina-
tory nature. I find, therefore, that Respondent has violat-
ed Section 8(a)(1) and (3) of the Act by laying off Avila
on November 9, 1981.16
C. The January 1982 Discharge of Avila
On Wednesday, December 23, 1981, the Board's Re-
gional Office issued a complaint against Respondent al-
leging, inter alia, the discriminatory layoff of Avila. On
December 30, 1981, Respondent sent Avila a letter re-
questing that he return to work on January 5, 1982,
which he did. Except for the alleged threat by Nieves of
bodily harm and Nieves' alleged reference to Avila's use
of the Board's processes, it is undisputed that Avila,
when faced with the task of working on 14 molds, re-
fused to do so, and was subsequently discharged that
day. The General Counsel contends that it was Respond-
ent's plan to recall Avila in order to set him up for a
final discharge, to provoke a conflict with him by assign-
ing him an inordinately large volume of work, and then
to discharge him when he refused to perform all of the
work. Respondent contends that business picked up
toward the end of December 1981, and that was the
reason for recalling Avila. Respondent further contends
that Nieves emphasized the importance to Avila of doing
all 14 molds so as to get out an emergency order, and
that, when Avila continued to refuse to do all 14, Re-
spondent discharged him. In support of Respondent's po-
sition, Nieves and Garcia testified that working on 14
molds at one time was not out of the ordinary, and the
General Counsel did not refute this evidence. The only
is It is noted that he was the only employee laid off on that day.
iS This conclusion it not to be construed to mean that I have found an
independent violation of Sec. 8(aXl); i.e., the allegation that Nieves en-
gaged in surveillance on November 2. To the contrary, I find that
Nieves' presence at the time Avila conversed with the union organizers
was purely coincidental and impossible to have been planned. As stated
by Trial Examiner John F. Funke in Tarrant Mfg. Co., 196 NLRB 794,
799 (1972), "If a union wishes to organize in public it cannot demand that
management must hide." I shall, therefore, dismiss this 8(a)(1) allegation.
statement offered by Avila was that in the 7 years that
he worked for Respondent he was never asked to work
on more than seven or eight molds in a given day. No
evidence was offered by the General Counsel to show
that working on more than seven or eight molds was in-
jurious to one's health, or required more effort, or as al-
leged in the complaint, constituted "more onerous terms
and conditions of employment."
Under the circumstances, I find that the General
Counsel has failed to meet its burden of proof sufficient
to sustain the allegation. I do not view Avila's discharge
in the same light as I did his layoff, supra. In the latter
situation, there had been a renewal of union activity im-
mediately preceding Avila's layoff, and Avila had been
observed conversing with the Union's organizers. How-
ever, in January 1982 there was absolutely no union ac-
tivity; in fact, it would appear from the evidence present-
ed that the Union's efforts ceased in November 1981.
Thus, Respondent's recalling of Avila in January 1982
appears to have been in good faith. 17 And, since I credit
Nieves and Garcia on the amount of molds normally
used on a given day, I find that Avila's refusal to per-
form his work pursuant to his Employer's request, and
for no other reason, led directly to his discharge.' 8
Under the circumstances, I shall dismiss this allegation.
CONCI USIONS OF LAW
1. Respondent, Emenee Accessories, Inc., is a employ-
er engaged im commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Local 132 is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By laying off Angel Luis Avila on November 9,
1981, because of his support of Local 132, Respondent
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(3) and (1) and Section
2(6) and (7) of the Act.
4. By threatening employees with plant closure in
order to induce them not to select Local 132 to represent
them: by engaging in surveillance of employees while
they spoke to union organizers in nonwork areas on their
own time; and by adding and abetting employees in
preparation and delivery to the Union of an antiunion pe-
tition thereby restraining and coercing employees in the
exercise of their Section 7 rights, Respondent has violat-
ed Section 8(a)(1) of the Act.
5. Respondent did not engage in any other unfair labor
practices alleged.
THE REMEDY
As Respondent has been found to have engaged in cer-
tain unfair labor practices, I shall recommend that it
17 Although the recall of Avila on January 5 may have been precipi-
tated, in part, by the issuance of the complaint in Case 2-CA-18425 on
December 23, 1 credit Respondent when it stated that there had been an
increase in business activity at the end of December, and that Avila was
needed to do the work. Otherwise, there would not have been 14 molds
to work on in the first place.
Is In reaching this conclusion, I also credit Nieves in his denial of the
allegation that he threatened bodily harm to Avila or accused him of
availing himself of the Board's processes. I, therefore, shall dismiss those
allegations in the complaint.
1350
EMENEE ACCESSORIES, INC.
cease and desist therefrom and that it take certain affirm-
ative action designed to effectuate the policies of the
Act.
Having found that the Respondent discriminatorily
laid off Angel Luis Avila on November 9, 1981, I shall
recommend that Respondent be required to make Avila
whole for any loss of earnings he may have suffered as a
result of the discrimination against him. The loss of earn-
ings shall be computed as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as set forth in Isis
Plumbing Co., 138 NLRB 716 (1962), and Florida Steel
Corp., 231 NLRB 651 (1977).'9
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 2 0
The Respondent, Emenee Accessories, Inc., New
York, New York, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Threatening employees with plant closure in order
to induce them not to select Local 132, or any other
labor organization, to represent them.
(b) Engaging in surveillance of employees' union ac-
tivities.
(c) Aiding and abetting employees in the preparation
and delivery to the Union, or any other labor organiza-
tion, of any antiunion petition.
19 Inasmuch as I have found that the reinstatement of Avila on Janu-
ary 5, 1982, was in good faith, and his subsequent discharge on January
7, not violative of the Act, I shall not order reinstatement to Avila, and
shall limit his reimbursement remedy to the period from November 9,
1981, the date of his discriminatory layoff, to January 5, 1982.
20 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(d) Laying off employees because of their activities on
behalf of any sympathies for the Union, or any other
labor organization.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
Section 7 rights.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(a) Reimburse Angel Luis Avila and make him whole
for any loss of pay suffered by reason of the discrimina-
tion against him in the manner described above in the
section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this recommended Order.
(c) Post at its New York, New York, place of business,
copies of the attached notice marked "Appendix." 2 t
Copies of said notice, on forms provided by the Regional
Director for Region 2, after being duly signed by the Re-
spondent authorized representative, shall be posted by
the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that said notices
are not altered, defaced, or covered by any other materi-
al.
(d) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found.
21 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1351