Glen Rock Ham

National Labor Relations Board - Administrative Judge Opinions

Feb 13, 2008

22-CA-027477 (N.L.R.B. Feb. 13, 2008)

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Paterson, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
AL & JOHN, INC., d/b/a/ GLEN ROCK HAM
and Case 22-CA-27477
NOEL ECHAVARRIA GONZALEZ, An Individual
Dorothy Foley, Esq., for the General Counsel
Alan I. Model, Esq., (Littler Mendelson), of
Newark, New Jersey, for the Respondent
DECISION
Statement of the Case
ELEANOR MACDONALD, Administrative Law Judge: This case was tried in Newark,
New Jersey on October 23 and 30, 2007. The Complaint alleges that Respondent, in violation
of Section 8(a)(1) and (3) of the Act, discharged employee Noel Echavarria Gonzalez because
of his Union activities and engaged in unlawful surveillance of those activities. The Respondent
asserts that the employee was discharged for cause.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the parties, I make the following1
Findings of Fact
I. Jurisdiction
Respondent is engaged in the processing and sale of ham and related meat products at
its plant in Paterson, New Jersey. Annually, Respondent purchases and receives at its
Paterson facility provisions and goods valued in excess of $50,000 directly from points outside
the State of New Jersey. Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2),(6) and (7) of the Act and that Local 464A, United
Food & Commercial Workers Union, is a labor organization within the meaning of Section 2(5)
of the Act.

1 The record is hereby corrected so that at page 9, line 14, Ms. Foley was speaking; at page
24, line 5,and thereafter throughout the transcript the correct name is Blanco; at page 119, line
10, the first sentence should read, “Nobody is disciplined for a warning.”; at page 126, line 11
and thereafter, the correct name is Eduardo Blanco; at page 140, line 10, the correct phrase is
“disciplinary warnings.”
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II. Alleged Unfair Labor Practices
A. Background
The parties agree that the following are supervisors and agents of Respondent within the
meaning, respectively, of Section 2(11) and 2(13) of the Act:
Jon Udrija Plant Manager
Alexander Oldja President
Eduardo Blanco Supervisor
The plant at issue herein manufactures hams and emulsified meat products. For
purposes of this decision a very brief description of the process is required. Various types of
raw hams and other products are prepared by the plant butchers and are then cooked in metal
molds. The empty molds weigh about 15 lbs. Clean molds must be transported to the work
areas where they will be filled and once the molds are filled they must be transported to the
cook room. Clean molds are stacked on large metal carts; witnesses testified variously that
from 100 to 250 empty molds could be stacked on each cart. The carts are 8 to 10 feet long
and have four wheels. A cart full of clean molds is of a height that a man cannot see over the
top. Such a cart is very heavy and must be moved using a battery powered jack.2 The arms of
the jack are inserted into the cart so as to raise one end of the cart and then the cart is pulled to
the desired location. Full molds are placed into a container called a basket; these are not
relevant to the instant case.
Jon Udrija has been the plant manager of the company for 25 or 26 years. He oversees
all activities on the production floor. The witnesses herein agreed that Udrija regularly visits the
production floor.3 The company employs about 200 production workers. The plant produces
about 10,000 hams on an average day. There are 3 foremen in the plant: the foreman of
butchers is Milan Madjarcic; the foreman of the processing employees is Anton “Tony”
Marinescu; the foreman of ready-to-eat products is Eduardo Blanco.
Local 464(A), UFCWU, represents a unit of butchers at the facility. Employees who are
not butchers are not included in the unit. Charging Party Noel Echavarria Gonzalez worked
transporting ham molds to various locations around the plant and he was excluded from the
bargaining unit.
On December 16, 2005 OSHA conducted an inspection of the plant. A Citation and
Notification of Penalty was issued on March 27, 2006. The violations found concerned faulty
equipment, dangerous physical conditions in the plant and the failure to evaluate powered truck
operators’ performance at least once every three years. In May 2006 OSHA met with plant
officials including Jon Udrija and Jennifer Oldja.4 Udrija testified that at this meeting OSHA
directed the company to keep records of safety violations. Udrija said he had been giving

2 Some witnesses referred to this equipment as a power pallet jack.
3 Foreman Eduardo Blanco testified that Udrija is always on the work floor so that he can
see what is happening throughout the day.
4 Oldja is the chief financial officer of the Respondent but her duties are more wide ranging
than her title would suggest.
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mostly verbal warnings but OSHA said that he should document these warnings. As a result,
Udrija stated, “I started to be a little more careful and document the warnings that I gave to
employees.”
A stipulated settlement amending the proposed OSHA penalties was signed by Jennifer
Oldja on June 6, 2006. The company agreed to implement a safety and health program and to
provide training concerning the program to all employees. Jennifer Oldja testified that at the
time of the hearing the company was in the process of publishing a safety program and that it
had issued a brochure in March 2007.
Udrija testified concerning the Respondent’s disciplinary policy. He said, “Nobody is
disciplined for a warning.” However, if the same problem occurred again, if the employee did
not correct the problem, he would be subject to suspension or termination. Udrija stated that he
gives a warning but if the problem continues then the employee is subject to termination.
B. Noel Echavarria Gonzalez
Echavarria Gonzalez started working at the plant on July 13, 1997.5 After some
preliminary assignments he began driving the electric jacks around the plant.6 Echavarria
Gonzalez testified that his job included retrieving carts with empty molds from an area where
they are stored and taking the carts to a line where 10 or 11 employees fill the molds. Because
of the size and weight of the carts, they must be moved to the line one at a time. In addition,
when taking a cart from the area where the carts are stored care must be used to move only
one cart at a time to avoid flipping it over. Echavarria Gonzalez testified that in the 7 years he
has been moving carts he has not received any warnings in connection with this task.
Echavarria Gonzalez’ regular shift is from 6 am to 2:30 pm. However, he often works
overtime depending on how much meat must be processed by the plant each day. Plant
manager Jon Udrija determines the production for each day and the plant operates until the
production goal for the day is met. Echavarria Gonzalez usually works overtime until he has
supplied the line for which he is responsible with enough molds to finish the day’s work. If he
cannot work overtime on a certain day, he notifies his supervisor that day or the day before.
The Bonus Issue
Echavarria Gonzalez testified that the unrepresented employees were given a bonus
every year after Thanksgiving Day. The practice at the plant was to grant non-union employees
a bonus when the unit employees received the bonus specified by their collective bargaining
agreement. In June 2006, the Union and the employer negotiated a new contract and there
were rumors in the plant that the new contract provided for a bonus in June. Indeed, on Friday,
June 30, the unit employees received bonus checks with their paychecks and this was noted by
the non-unit employees. However, the unrepresented employees soon became angry and
upset when they realized that they were not being given bonus checks.
Rafael Adames, a non-unit employee, testified that he had heard from Union shop
steward Idaver “Eddie” Memetov that the new contract provided for an extra bonus in addition to
the traditional end-of-year bonus. At first, the unrepresented employees were happy because
they believed that they too would get the mid-year bonus. On June 30, 2006 when it became

5 Echavarria Gonzalez testified through an interpreter.
6 Echavarria Gonzalez was trained and certified to use the jack.
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clear that only the unit employees had received a bonus check, Adames and the other
unrepresented employees called plant manager Jon Udrija to the work area and asked why they
did not get the bonus. Adames testified that Udrija turned red and looked upset. Udrija said, “I
never told you I was going to give you a bonus.” After the employees pointed out that every
year they got the same bonus as the Union employees, Udrija repeated that he had never
promised them a bonus. Adames stated that following this exchange with Udrija the employees
got together and decided to organize themselves so that they could receive benefits. The
employees all thought, “We’re worthless. We’re nobody.” Adames signed a list of employees
who wanted to organize that Echavarria Gonzalez circulated in the plant.
Echavarria Gonzalez testified that on June 30 he put his name on a list and he solicited
signatures by telling the employees that they had to join the Union to be able to receive the
same benefits as the unit employees.7 He collected signatures for the list during work time on
the plant floor and in the break room. This effort continued on Monday July 3 and Wednesday
July 5. Echavarria Gonzalez testified that he saw Udrija watching him while he collected
signatures from his fellow employees. After a while, Echavarria Gonzalez confined his
solicitation to break times because he did not want Udrija to see him. Echavarria Gonzalez
called the Union to tell it of his activities and that he would be sending in a petition. He made
these calls beginning on June 30 and continuing on July 3 and 5. He told the person to whom
he spoke at the Union that he was being watched. This person replied that the company could
not watch him and that he was to go to the NLRB if anything happened.
Echavarria Gonzalez intended to send the list of employees to Local 464(a) to show that
the signatories wished to become Union members and receive the same benefits as the unit
employees. As will be seen below, he sent the original to the Union on July 5. Echavarria
Gonzalez retained copies of only some of the pages he sent the Union. In fact, Adames could
not find his signature on the pages that Echavarria Gonzalez had copied and which were
introduced into evidence. I do not find this significant. Adames testified that he did sign a list of
employees who wished to join the Union. Echavarria Gonzalez testified that there were many
pages to the list, for a total of about 40 signatures. After he had collected the signatures
Echavarria Gonzalez wrote at the top of one page that all the employees wished to belong to
the Union. He did not have the sophistication or forethought to retain an exact copy of what he
had sent to the Union. However, the precise contents or wording of the list are not central to the
instant case. What is significant is that two witnesses testified credibly that Echavarria
Gonzalez collected a list of signatures at the plant in an effort to show that the employees
wished to join the Union and receive the benefits of Union membership. In addition, Echavarria
Gonzalez’ telephone records indicate that he called the Union on June 30 and July 3 and 5.
The Written Warning
On Wednesday July 5, Echavarria Gonzalez testified, Jon Udrija handed him a written
warning. The warning, dated July 1, was as follows
On Saturday 01/01/2006 you were noticed pushing, with power pallet jack, several carts
loaded with molds. This could result in injury of another employee who may be on the
opposite side and also damageing (sic) the molds and carts.
If you continue to be desobedient (sic) and careless it may result in termination of
employment.

7 The unrepresented employees eventually received a bonus in July.
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Echavarria Gonzalez, who was the first witness called in this proceeding, testified that he
was not at work on Saturday, July 1, 2006. Respondent’s payroll records show that he was not
working that day. Echavarria Gonzalez stated that he did not know why Udrija gave him the
July 1 warning; he thought it was because he was collecting signatures for the Union. He
denied that Udrija had ever warned him verbally to be careful. If there had been an accident he
would have been fired. Echavarria Gonzalez said that he never moved more than one mold cart
at a time because moving multiple carts could cause them to fall and injure someone.
After Echavarria Gonzalez testified on direct examination and before Udrija testified,
Jennifer Oldja testified about a conversation she had with Udrija outside the courtroom during a
break in the instant proceeding. Oldja stated that she alerted Udrija about the date of July 1
2006 because Echavarria Gonzalez claimed he had not worked that day and she wanted to be
sure that the company produced the payroll records.
Udrija testified later in the hearing. He stated that on July 1 he had seen Gonzalez using
the power pallet jack to push several carts loaded with empty molds out of the way so that he
could reach certain carts containing the molds needed for a certain line.8 Udrija said he stopped
Gonzalez immediately and told him he could not see who was standing in the area behind the
carts and he could kill someone or damage the equipment. Udrija stated that Gonzalez was
pushing at least 3 carts at the same time. Udrija recalled that this incident occurred on a
Saturday. Udrija testified that he wrote the warning at a later date and gave it to Echavarria
Gonzalez on July 3. He said he had spoken to Gonzalez many times about safety issues but in
the past he did not issue many written warnings. Since the OSHA visit he gave more written
warnings. Udrija testified that when he gave Echavarria Gonzalez the written warning he did not
know that the latter had been collecting signatures in an attempt to organize the employees.
Udrija did not explain how he could have observed Echavarria Gonzalez engaging in the
unsafe maneuver on Saturday July 1 when it was clear that the employee had not worked that
day. Udrija did not state that the incident could have taken place on another day; he
remembered that it happened on a Saturday. Respondent offered no testimony or evidence to
explain the discrepancy between Echavarria Gonzalez’ attendance record and the purported
July 1 incident which led to the written warning.
The Discharge
Echavarria Gonzalez went to the Paterson, New Jersey, Post Office on July 5 to mail the
list of employees petitioning to join the Union.9 Echavarria Gonzalez believed that the Paterson
Post Office closed at 4:30 pm and he wanted to mail the list of employees to the Union on that
day. He testified that about 2:30 pm, when his shift ended, he informed the supervisor that he
had to leave the plant.10 The events leading up to Echavarria Gonzalez’ departure from the
plant on that day are significant for the resolution of the instant case.

8 Jon Udrija testified after Echavarria Gonzalez was examined on direct and cross-
examination.
9 The certified mail receipt from the US Postal Service shows that the documents were
mailed at 4:18 pm on July 5 and received by the Union on July 10, 2006.
10 Echavarria Gonzalez testified that he informed the supervisor he had to leave to go to the
post office but his affidavit states that he said he had to go home. I do not find that this
difference is significant.
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According to Echavarria Gonzalez the practice at the plant permitted him to notify the
supervisor of his inability to work overtime either the day before or on the day of the intended
early departure. In fact, Echavarria Gonzalez stated, it was permissible to wait until the end of
the shift to inform the supervisor that one had to leave at that time. The purpose of informing
the supervisor that he had to leave was to enable the supervisor to assign another employee to
perform the tasks he would have performed had he stayed to work overtime. Adames testified
that he would inform his supervisor the day before or in the morning if he had to leave work
early. Adames also testified that he had left work on 4 or 5 occasions without asking
permission. There is no indication in the record that Adames was disciplined for leaving work
early without asking permission. Jon Udrija testified that if an employee cannot work overtime
he must notify a foreman at least a couple of hours prior to going home or in the morning so that
a replacement can be found. The company does not force employees to work overtime.
On July 5, 2006 Echavarria Gonzalez’ foreman, Tony Marinescu, was on vacation.
Echavarria Gonzalez testified that he notified foreman Eduardo Blanco that he had to leave at
2:30 on that day. It is clear from the record that the employer would regard notification to
Blanco as sufficient in the absence of the regular foreman. According to Echavarria Gonzalez
he received permission from Blanco to leave at 2:30; Blanco said, “No problem.”
Jon Udrija testified that he learned that Echavarria Gonzalez had left the plant when he
looked out of his office and noticed that employees on the packing line were sitting around with
no work because they had no empty molds. Udrija asked where Echavarria Gonzalez was and
he looked for him in various locations without finding him. Udrija assigned another employee to
supply the packing line with molds. He estimated that the production line was down from 30 to
35 minutes due to the lack of clean molds.
Jon Udrija called Echavarria Gonzalez at home and, receiving no answer, called his cell
phone while the latter was standing in line at the Post Office. Udrija asked why he had left
early. After Echavarria Gonzalez explained that he had to go to the Post Office, Udrija asked
whether he had obtained permission. Echavarria Gonzalez replied that Blanco had given him
permission to leave. Udrija said he would investigate and find out what happened. Udrija
testified that he wanted to meet with Blanco “because he’s the one that didn’t follow up.” Udrija
was ready to reprimand Blanco at this point.
When Jon Udrija confronted Blanco, Blanco denied that Echavarria Gonzalez had told
him about leaving early. Blanco testified herein that on July 5 he did not speak to Echavarria
Gonzalez at all and the latter did not inform him that he had to leave early. Blanco stated that
he himself had left the plant to pick up his daughter. Blanco said he was not sure what time he
left the plant. He might have left work at 3:30 but he might have left earlier.11 When Udrija
spoke to Blanco it was on the latter’s cell phone at around 4 pm.
When Echavarria Gonzalez came to work on July 6 he was told to wait for Jon Udrija in
the shipping area. Eventually Udrija and Blanco appeared. Udrija asked Echavarria Gonzalez
whether he had asked permission to leave the day before and the latter replied that he had
indeed asked. Then Blanco said that Echavarria Gonzalez had not asked permission.
Echavarria Gonzalez immediately said to Blanco, in Spanish, “How he could say such a thing.”
Blanco did not answer. Blanco testified that Echavarria Gonzalez said, “You work here and
you’re not going to say the truth.”

11 Blanco said he usually leaves at 3:30 but he could not say that he was still in the plant at
3:30 because he sometimes leaves earlier.
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Following this meeting Jon Udrija took Echavarria Gonzalez to a conference room where
the two men met with company president Alexander Oldja. Echavarria Gonzalez testified that
Udrija told the owner, “that I was the guy.” Oldja said that Echavarria Gonzalez was being fired
because he left without permission. Echavarria Gonzalez thanked Oldja for being allowed to
work in the company and then remarked that, “I knew why I was being fired.”
Jon Udrija testified that he told Alexander Oldja what had happened on July 5 when he
and Echavarria Gonzalez met with Oldja. Udrija stated that he also informed Oldja that
Echavarria Gonzalez had been given a safety violation. Oldja asked Echavarria Gonzalez why
he left without telling anyone. According to Udrija at this point Echavarria Gonzalez became “a
little loud” and said, “You guys don’t believe me.” Echavarria Gonzalez insisted that he had
informed Blanco of his need to leave early but that Blanco did not want to admit it. Udrija
recalled that Echavarria Gonzalez lifted up his hands and was walking toward the door. Udrija
testified, “The decision between Alex and me was made then so we told him, as of today you’re
terminated.” When he was asked when the decision to terminate Echavarria Gonzalez was
made, Udrija replied that, “We made the decision when he started being loud and started
walking out and we said as far as we’re concerned you’re terminated as of today.” Udrija said
he did not know that Echavarria Gonzalez was circulating a list for the Union when this
discussion took place. Alexander Oldja did not testify herein.
After this meeting on July 6 Udrija wrote up an “Employee Record.” This document,
dated July 6, 2006 states in relevant part as follows
On Wednesday 07/05/2006 you left work at 2:30 PM, while the production line was
running, without notifying your forman (sic).
This caused a lot of problem; other employees stopped their work waiting for you to
supply them with ham molds, not knowing that you left already.
You were told that if you cannot stay longer you must notify your forman so he could find
another employee who could replace your position.
You were counseled on Thursday 07/06/2006.
You stated that you did report to your foreman, Edward Blanco.
When I asked Blanco, in your presence, whether he received any notification from you,
Blanco stated that you did not notify him at all that you have to leave at 2:30 PM.
After reviewing your previous warning on file, also due to causing down time on
production line and stating a false statement I have no alternative choice but to terminate
your employment with Al & John Inc.
Udrija testified that Echavarria Gonzalez did not have a history of leaving the plant
without giving notice. Usually he would notify a supervisor if he had to leave before the daily
production was completed.
C. Written Warnings Issued to Employees
The Respondent produced all the written warnings from its files. The warnings predating
Echavarria Gonzalez’ discharge are summarized below. These warnings did not result in
immediate termination:
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11/26/2003 Leaving the packing line for 20 minutes to go to the locker room.
10/10/2005 Failing to wear proper safety shoes.
10/25/2005 Failing to wear proper safety shoes.
3/27/2006 Failing to report to work and failing to call; this is a repeat violation.
3/32/2006 Failing to report to work and failing to call.
4/3/2006 Failing to report to work and failing to call.
4/5/2006 Failing to report to work and failing to call.
4/6/2006 Failing to report to work and failing to call.
4/10/2006 Failing to report to work and failing to call.
4/11/2006 Causing friction with another worker.
4/12/2006 Coming to work over one hour late; this is a repeat violation.
5/11/2006 Failing to report to work and failing to call. (Two employees.)
5/15/2006 Failing to report to work and failing to call.
6/1/2006 Starting lunch hour 17 minutes early; this is a repeat violation.
6/19/2006 Failing to report to work and failing to call.
6/19/2006 Mixing clean and dirty molds.
6/30/2006 Riding power pallet jack too fast with potential to cause injury.
7/1/2006 Failing to report to work and failing to call. (Seven employees.)
7/3/2006 Failing to report to work and failing to call.
III. Discussion and Conclusions
I find that Echavarria Gonzalez was a truthful witness. Despite the difficulties of
testifying through an interpreter he made an obvious effort to listen to the questions and to
answer them fully. His testimony was supported by the documentary evidence with respect to
his dates of work, the telephone calls to the Union and the mailing of the employee petition.
Echavarria Gonzalez testified consistently as to the major facts at issue herein despite a
vigorous and thorough cross examination by Counsel for Respondent. He remembered dates
and occurrences and his recollection did not shift.
I credit the testimony of Adames. Adames gave the impression that he answered each
question based on his actual recollection, he was cooperative on cross examination and no
reason is apparent in the record for discrediting any part of his testimony.
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I shall not rely on the testimony of Blanco and Udrija where it conflicts with the testimony
of Echavarria Gonzalez. Blanco’s narrative is at odds with what I have found to be a truthful
and reliable account of the events. Blanco did not have a good recall of the events of July 5.
Blanco could not remember what time he left the plant that day. This leads me to conclude that
he did not have an accurate recollection of whether Echavarria Gonzalez did or did not speak to
him about leaving work at 2:30. As set forth in detail below, I find that Udrija’s testimony
conflicts with the documentary evidence and that his stated reasons for the discharge are both
shifting and inconsistent with his description of Respondent’s disciplinary policy.
I rely on Adames’ uncontradicted testimony that on June 30 the unrepresented
employees confronted Udrija about the fact that they had not received a bonus with their
paychecks. I credit Adames that Udrija turned red and looked upset and said he had never
promised them a bonus. I credit Echavarria Gonzalez that beginning in the morning of June 30,
2006 he solicited signatures from non-unit employees who wanted to join the Union in order to
receive the same benefits as the unit employees. Adames also testified to this effect. I credit
Echavarria Gonzalez that he collected about 40 signatures on June 30, July 3 and July 5 during
work time on the plant floor and during his breaks in the break room. I credit Echavarria
Gonzalez that he saw Udrija watching him while he solicited the signatures and that he
complained to the Union about this. Udrija and other witnesses herein testified that in the
performance of his duties Udrija is frequently on the production floor so that he can oversee the
operation and deal with problems as they arise. I do not credit Udrija that he was unaware of
Echavarria Gonzalez’ solicitation of signatures among employees who wanted to join the Union.
The General Counsel urges that Udrija engaged in unlawful surveillance of Echavarria
Gonzalez’ Union activities. The testimony establishes that in the usual execution of his duties
Udrija was often on the plant floor and that he checked the operations of the employees on a
regular and consistent basis. The evidence does not show that Udrija increased his normally
frequent presence in the production area. That Udrija witnessed Echavarria Gonzalez collecting
signatures does not prove unlawful surveillance; it only shows that Udrija was engaged in his
job duties by paying attention to what everyone was doing and making sure that production
continued without any problems. I shall not find a violation as to the alleged surveillance.
The testimony and documentary evidence set forth above shows that Echavarria
Gonzalez was not at work on Saturday July 1, 2006. Nevertheless, Udrija testified that he
witnessed him using the power pallet jack in an unsafe manner on that Saturday. Udrija gave
Echavarria Gonzalez a written warning on Wednesday July 5 for the supposed safety infraction.
Respondent did not seek to deal with this discrepancy. No extended discussion is required to
conclude that the written warning for July 1 cannot be used as the basis for further discipline.
Since Echavarria Gonzalez was not present in the plant on July 1 and since he cannot have
used the power pallet jack improperly on that day, the written warning is a nullity.
I find that Udrija was not a credible or reliable witness based, in part, on his testimony
about the purported safety violation of Saturday July 1. Udrija was sure he observed Echavarria
Gonzalez on Saturday and he described in great detail the actions of the latter in executing an
unsafe maneuver. Before Udrija testified herein he had been told by Jennifer Oldja that
Echavarria Gonzalez denied being at work on Saturday July 1, and Oldja and Udrija had
discussed production of the payroll records for that date. Yet even though he had an obvious
opportunity to search his memory Udrija persisted in his testimony that Echavarria Gonzalez
was the employee who performed an unsafe action on Saturday July 1. I conclude that Udrija
testified without regard to the accuracy of his statements in order to uphold Respondent’s
position in the instant litigation.
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The uncontradicted testimony shows that when the unrepresented employees
confronted Udrija about the bonus he turned red and looked upset. Udrija told them more than
once that he had never promised them a bonus. I find that Udrija was upset that these
employees were demanding the same bonus that the Union members had received pursuant to
the new contract. Because Respondent issued a warning to Echavarria Gonzalez for a day on
which he did not work and because Respondent presented testimony that he committed a
safety infraction that day even in the face of its own documents showing that he was not
working on Saturday July 1, I conclude that the issuance and use of the warning to justify the
subsequent discharge was a pretext. I find that Udrija issued the warning dated July 1, 2006 to
Echavarria Gonzalez on July 5 2006 because he solicited signatures from employees who
wanted to join the Union and receive Union benefits. The warning was given in furtherance of
Respondent’s attempt to discharge Echavarria Gonzalez.
Echavarria Gonzalez testified that he notified foreman Blanco that he had to leave at
2:30 on July 5. When Udrija called Echavarria Gonzalez after 4 pm Udrija apparently believed
him when he said that he had indeed notified Blanco. Udrija testified that Echavarria Gonzalez
did not have a habit of leaving without informing the foreman, and Udrija was prepared to cast
the blame on Blanco for failing to assign another worker to cover for Echavarria Gonzalez. By
the time Udrija met with Blanco and Echavarria Gonzalez on July 6, however, he readily
credited Blanco. Udrija did not explain why he believed Blanco when Echavarria Gonzalez
continued to maintain that he had given notice to Blanco. I have found that Echavarria
Gonzalez is a truthful witness and I find that Echavarria Gonzalez notified Blanco at 2:30 on July
5 that he could not work late that day.
Udrija’s testimony about the decision to discharge Echavarria Gonzalez is inconsistent
with the written employee record he prepared. This is another factor in my conclusion that
Udrija is not a credible or reliable witness. Udrija testified that he and Alexander Oldja made the
decision to terminate Echavarria Gonzalez during the meeting of July 6 “when he started being
loud and started walking out and we said as far as we’re concerned you’re terminated as of
today.” Yet the employee record prepared by Udrija after the meeting states that termination is
due to “your previous warning on file, also due to causing down time on the production line and
stating a false statement.” This document makes no mention of Echavarria Gonzalez using loud
words or beginning to walk out of the meeting. The use of shifting reasons to justify an
employee discharge inevitably casts doubt on the truthfulness of the asserted reasons and
leads to a conclusion that the employer is covering up an unlawful motive.
Finally, the timing of the bogus safety warning and the discharge of Echavarria Gonzalez
soon after he began soliciting employee signatures to join the Union lead me to conclude that
he was discharged because of his organizational activities.
I find that Respondent discharged Echavarria Gonzalez on July 6, 2006 because he
engaged in Union activities. Respondent thus violated Section 8(a)(3) and (1) of the Act.
Furthermore, Respondent has not shown that it would have discharged Echavarria
Gonzalez in the absence of his Union activities. Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F. 2d 899 (1st cir. 1981), cert denied 455 US 989 (1982). The decision to discharge
Echavarria Gonzalez was inconsistent with Respondent’s stated disciplinary policy. Udrija
testified that “nobody is disciplined for a warning” but if the same problem occurred again the
employee would be subject to suspension or termination. In this case, Echavarria Gonzalez
was warned for a safety infraction. Then he was subject to discharge for allegedly leaving
without informing his foreman that he could not work overtime. Under Respondent’s own policy,
Echavarria Gonzalez should not have been discharged for leaving at the end of his shift on July
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5. Because this was the first time he had been disciplined for engaging in this type of
misconduct he should have been issued a warning. Udrija did not testify that unrelated
warnings would contribute to a decision to discharge an employee; Udrija said an employee
who was warned would be discharged if the same problem occurred again. I also apply this
reasoning to the third cited reason for the discharge, that is, making a “false statement” about
whether he had notified his foreman that he had to leave. I note that Udrija admitted that
because Echavarria Gonzalez did not have a habit of leaving work without notice Udrija was
ready to blame Blanco for the down time on the packing line. Manifestly, Udrija would not have
initially credited Echavarria Gonzalez if he had been warned previously for making a “false
statement.”
Finally, the written warnings issued to other employees before July 6, 2006, show that
Echavarria was treated disparately as compared to other employees who engaged in
attendance misconduct. On November 26, 2003 an employee who left the packing line for 20
minutes without permission was warned but not fired. On March 27, 2006 an employee who
repeatedly did not call and did not appear for work was warned but not fired. Many employees
who failed to report to work and failed to call were warned but not fired. On April 12, 2006 an
employee who came to work over one hour late without calling, and who had done this before,
was warned but not fired. On June 1, 2006, one month before the events at issue herein, an
employee who started lunch 17 minutes early, and who had done this before, was warned but
not fired. Finally, Adames’ uncontroverted testimony showed that he had left work early 4 or 5
times without permission from his foreman and he was not disciplined for doing this.
Respondent did not offer any testimony to show how Echavarria Gonzalez’ purported infraction
differed from the misconduct described above. The evidence establishes that a single instance
of misconduct related to attendance at work would not normally be cause for discharge by the
company. Thus, I find that Respondent would not have discharged Echavarria Gonzalez but for
his Union activities.
Conclusions of Law
1. By discharging Noel Echavarria Gonzalez because he solicited employees to join the
Union, Respondent violated Section 8(a)(3) and (1) of the Act.
2. The General Counsel has not shown that Respondent engaged in any other
violations of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged an employee, it must offer him
reinstatement and make him whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the entire record, I issue the
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following recommended12
ORDER
The Respondent, Al & John, Inc., Paterson, New Jersey, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any employee for supporting Local
464A, United Food & Commercial Workers Union, or any other union.
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Noel Echavarria Gonzalez
full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
(b) Make Noel Echavarria Gonzalez whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him in the manner set forth in the remedy
section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge, and within 3 days thereafter notify the employee in writing
that this has been done and that the discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its facility in Paterson, New
Jersey, copies of the attached notice marked “Appendix”13 in both English and Spanish. 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 and maintained
for 60 consecutive days in conspicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the

12 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 purposes.
13 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 National 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.”
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notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since July 6, 2006.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C., February 13, 2008.
____________________
Eleanor MacDonald
Administrative Law Judge
JD(NY)-05-08
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 Federal labor law and has ordered us to post and
obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge or otherwise discriminate against any of you for supporting Local 464A, United Food &
Commercial Workers Union, or any other union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Noel Echavarria Gonzalez full reinstatement to his former
job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
WE WILL make Noel Echavarria Gonzalez whole for any loss of earnings and other benefits resulting from his
discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the unlawful discharge of
Noel Echavarria Gonzalez, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and
that the discharge will not be used against him in any way.
Al & John, Inc. d/b/a Glen Rock Ham
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts
secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
20 Washington Place, 5th Floor
Newark, New Jersey 07102-3110
Hours: 8:30 a.m. to 5 p.m.
973-645-2100.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 973-645-3784.