Jupiter 8, Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1979

242 N.L.R.B. 1093 (N.L.R.B. 1979)

Jupiter 8, Inc. and Anselmo Oquendo. Case 2-CA-
15281
June 13, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND PENELLO AND
TRUESDAL.E
On January 31, 1979, Administrative Law Judge
Donald R. Holley issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief. Respondent filed a
brief in opposition to the exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, as
modified herein.
The General Counsel contends, inter alia, that the
Administrative Law Judge erred in failing to find that
Respondent violated Section 8(a)(l) of the Act by
harassing its employee, Anselmo Oquendo, because
of his prounion sympathies. We agree.
As found by the Administrative Law Judge, Re-
spondent's president, Morton, was told by employees
that Oquendo was the one employee who voted for
union representation in the election held on August 5,
1977. Based on Oquendo's uncontradicted testimony,
the Administrative Law Judge found that from mid-
August until the day before his discharge, i.e., until
September 7, 1977, Morton harassed Oquendo be-
cause of his prounion sympathies. On each working
day during this period, Morton would confront
Oquendo, stating, in substance, that Morton did not
want any union workers in his shop and that
Oquendo should quit and look for another job.
Although this harassment was not alleged as a
separate unfair labor practice in this complaint, it was
fully litigated at the hearing. The General Counsel
relied on the harassment as evidence that Respondent
had unlawfully discharged Oquendo and argues that
the harassment occurred in the course of conduct
which was alleged as an unfair labor practice and was
closely related to such conduct.' Morton testified at
' The General Counsel contended before the Administrative Law Judge
that Respondent's discharge of Oquendo was the final act of Morton's ha-
rassment and has excepted to the Administrative Law Judge's failure to so
find. Although, for the reasons stated in the Administrative Law Judge's
Decision, we find that the General Counsel failed to prove this contention,
the harassment was clearly a central feature of the General Counsel's prima
facie case and, thus, integrally related to the allegations in the complaint.
JUPITER 8, INC.
the hearing and thus Respondent had the opportunity
to present evidence to contradict Oquendo's state-
ments regarding the harassment. Under these circum-
stances, the Board is not precluded from finding that
the harassment violated the Act.2 Accordingly, since
Morton's harassment of Oquendo clearly interfered
with Oquendo's Section 7 right to advocate union
representation, we find that Respondent thereby vio-
lated Section 8(a)(1) of the Act.
AMENDED CONCLUSIONS OF LAW
Delete the Administrative Law Judge's Conclusion
of Law 3, and add the following Conclusions of Law:
"3. By harassing Oquendo because of his prounion
sympathies, Respondent committed an unfair labor
practice in violation of Section 8(a)(1) of the Act.
"4. The unfair labor practice found herein affects
commerce within the meaning of Section 2(6) and (7)
of the Act.
"5. Except as set forth above, the General Counsel
has not established that Respondent had violated the
Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Jupi-
ter 8, Inc., New York, New York, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Harassing employees because of their prounion
sympathies.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their Section 7 rights.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its New York, New York, facility copies
of the attached notice marked "Appendix." 3 Copies
of said notice, on forms provided by the Regional
Director for Region 2, after being duly signed by a
representative of Respondent, shall be posted by Re-
spondent 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 Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
2Ace Beverage Co.. 233 NLRB 1269 (1977).
In the event that his 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 Unitcd States Court of Appeals Enforcing an Order of the National
Labor Relations Board.
242 NLRB No. 148
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
11 IS FURTHER ORDERED that those allegations in
the complaint as to which no violations have been
found are hereby dismissed.
CHAIRMAN FANNING, concurring and dissenting:
I agree with my colleagues' finding that Respon-
dent's 3-week campaign of harassing Anselmo
Oquendo violated Section 8(a)(1) of the Act. Unlike
them, however, I cannot separate Oquendo's dis-
charge from the harassment and would find the dis-
charge violative of Section 8(a)(1) and (3) of the Act.
It is undisputed that Morton, Respondent's pres-
ident, learned, shortly after the election, that
Oquendo had been the only voter for the Union.
From then on Morton engaged in daily harassment of
Oquendo, telling him that he was not wanted, that
Morton did not want union workers in his shop, and
that he ought to look for another job. The Adminis-
trative Law Judge and my colleagues find it possible
to separate that conduct from what they find to be
Oquendo's insubordinate conduct when Morton rep-
rimanded him on September 8. Oquendo had been
reprimanded in the past and had not reacted as he did
now. I can infer only that his nerves had been rubbed
raw by the treatment he had received since the elec-
tion, and that all of Morton's conduct had been
pointed to this result.
Accordingly, I dissent from the failure to find the
discharge of Oquendo discriminatory.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing at which all parties had an op-
portunity to present evidence and cross-examine wit-
nesses, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice.
The National Labor Relations Act gives all em-
ployees the right:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual
aid or protection
To refrain from the exercise of any or all such
activities.
Accordingly, we give you these assurances:
WE WILL NOT harass employees because of
their prounion sympathies.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them in
Section 7 of the Act.
JUPITER 8, INC.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge: Upon
an original charge filed by Anselmo Oquendo on December
2, 1977, and an amended charge filed on December 23,
1977, the Regional Director for Region 2 issued a com-
plaint herein on January 6, 1978, alleging that Jupiter 8,
Inc.. herein called Respondent, violated Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended, on
September 7, 1977, by discharging Oquendo "because said
employee assisted the Union, and engaged in other con-
certed activities for the purposes of collective bargaining
and mutual aid and protection." Respondent filed a timely
answer denying that it engaged in the unfair labor practice
alleged.
The case was heard in New York, New York, on April
13, 1978. General Counsel and Respondent have filed post-
hearing briefs which have been carefully considered.
Upon the entire record and from my observation of the
witnesses while they testified, I make the following:
FINDINGS OF FACTI
I. JURISDICTION
Respondent, a New York corporation, maintains an of-
fice and place of business at 226 West 37th Street, New
York, New York, where it is engaged in the manufacture
and wholesale distribution of women's apparel and related
products. During the year preceeding issuance of the com-
plaint it sold and shipped to customers located outside the
State of New York products manufactured in New York
which were valued in excess of $50,000. Upon these admit-
ted facts, I find that Respondent is engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. STATUS OF LABOR ORGANIZATION
It was admitted, and I find, that International Ladies
Garment Workers Union, Local 10 (herein called the
Union) is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRA(CTIC(ES
A. Facts
Anselmo Oquendo was employed by Respondent as a
marker and dress cutter from mid-February 1976 until Sep-
' All dates are 1977 unless otherwise indicated.
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JUPITER 8, INC.
tember 8, 1977. Respondent's president, Robert Morton, in-
dicated during his testimony that Oquendo "... was as
good as any other worker I had there...."
On November 17, 1976, Oquendo, at Robert Morton's
request, filed a decertification petition in Case 2-RD-880.2
An election was held in the above-described proceeding on
may 20, 1977, and the vote was 6-0 against the Union. The
Union filed objections to the May 20 election, which were
withdrawn when the parties to Case 2-RC-880 agreed that
a second election should be held on August 5, 1977. The
tally of ballots issued after the second election revealed that
5 votes were cast against the Union and I vote was cast for
it.
Oquendo testifed that he filed the decertification petition
and voted against the Union at the first election because
Morton had promised ". . . us vacation pay, holiday pay,
Blue Cross-Blue Shield, raises, and he said just like the
Union" and plenty of overtime also. According to
Oquendo, Morton failed to keep his promises and for that
reason Oquendo decided to vote for the Union before the
second election was held. In this regard, Oquendo claims he
met with his fellow employees on several occasions and
urged them to vote for the Union at the second election. No
evidence was offered by General Counsel to show that Mor-
ton or any Respondent official was aware of Oquendo's sen-
timents or activities among the other employees prior to the
second election.
Respondent's president, Morton, indicated during his tes-
timony that he was told by employees several days after the
second election was held that Oquendo was the employee
who voted for the Union.
Oquendo testified, without contradiction, that Morton
came to him in mid-August and asked "what are you doing
back." When Oquendo replied he was working, Morton
said "I don't want you here." Oquendo asked why, and
Morton informed him "Because you vote Union and this
[is] not [a] Union Shop anymore. You can't stay here. You
have to look for a job." Oquendo replied he would be there
while there was work to do, and Morton informed him
"Well, I don't want you here." Between mid-August and
September 7, Oquendo claims Morton came to him every
day he worked and made comments similar to those de-
scribed above.
When asked what happened on September 7 and 8,
Oquendo answered:
On the 7th around ten-thirty in the morning, or
eleven o'clock he came in, and hear him repeating,
"You vote Union, you shouldn't have done it. You
don't belong here, this is not a Union Shop. You have
to look for another job."
I said, "Mr. Morton, I stay with you because before
I wasn't Union. Before I wasn't the Union you have no
trouble with me. I do my work and you have no trou-
ble with me." So he says. "But you are a Union man
and I don't want you here. I don't want you here at
all." So we had a big argument. So he left.
I worked that day. Then Thursday morning, Sep-
tember 8th, he came in late because he was away. He
: See G.C.Exh. 2, a composite exhibit consisting of formal documents in
Cases 2-RD 880 and 2-RD-881. which I judicially notice herein.
came in about three o'clock, into the tenth floor where
I was working. He says, "What are you doing here?" I
said, "I'm working." He said, "You're fired." I said,
"Well, why do you fire me?" He said, "Because you
vote Union and you shouldn't have done it, Al. You
know I don't like Union people in my place. This is not
a Union Shop. I told you before and I tell you now.
Now you are fired." I said, "Let me work till Friday
because I need the money. My family need the money,
too. Let me, and you fire me tomorrow." He said, "No,
you are fired right now."
So he went down to the ninth floor. He sent his sec-
retary up with the check, my paycheck up to Thurs-
day, three o'clock. And I got my pay. I think it was a
hundred and forty-seven dollars ($147). That was my
paycheck, and I left.
Morton, who indicated Oquendo slowed down in his
work and became very spiteful after the August 5 election,
testified that he learned on September 8 that Oquendo was
cutting dresses improperly and the factory was complaining
that parts were missing because of the manner in which
they were being cut. He indicated he brought the matter to
Oquendo's attention, and Oquendo defended his method of
cutting by saying he was saving yardage. Morton claims he
told Oquendo "Well, don't worry about saving a couple of
inches because you're holding things up. That you're not
cutting it right. Now, do it my way." Morton indicated
Oquendo replied he knew what he was doing and that he
[Morton] informed him "Look, I'm paying your salary. This
is the way I want it done. I don't want to have anymore
trouble with the factory, that they can't complete a dress."
Morton claims Oquendo then said "This is the way he was
going to do it, and if I didn't like it to fire him." Thereupon,
Morton told Oquendo "Okay, you're fired." Morton testi-
fied Oquendo came down to the office area about 1-1/2
hours later to get his salary.
In addition to the testimony adduced through their prin-
cipal witnesses-Oquendo for General Counsel and Morton
for Respondent-the parties to this action each called one
witness whose testimony, in each case, was intended to sup-
port the testimony of the parties' principal witness. Thus.
General Counsel called Emilio Lopez, who had worked for
Respondent from April to November 1977, as a witness.
Lopez testified Oquendo contacted him prior to the hearing
and agreed to pay him $200.00 if he would agree to attend
the hearing and testify against Mr. Morton.' Lopez sup-
ported Oquendo's testimony by testifying, without contra-
diction, that Morton approached him at the end of August
or in early September to ask him if he would work a few
hours on the approaching Saturday. During the conversa-
tion Morton commented "Don't mention anything to Al
[Oquendo]. He can't be trusted because he voted against me
for the Union, and he will stab you in the back." Addition-
ally, Lopez testified he heard Oquendo tell Morton on an
unspecified occasion "to go to hell" and that he noted that
Oquendo was very aggressive on an unspecified occasion
I Oquendo did not deny that he paid Lopez $200 to attend the heanng. He
testified he did pay Lopez such amount as he feared Lopez might be termi-
nated by his employer when he took time off to testify Lopez's testimony is
in accord with a pretrial affidavit given to the Board before he was offered
the $200. I found him to be a candid and straightforward witness
1095
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when Morton and Oquendo argued about work prior to
Oquendo's discharge.
Respondent's supporting witness was A. Peter Chapman.
Chapman, who was general manager at Respondent from
January 1976 until January 1977, testified that subsequent
to January 1977 he encountered Oquendo on Seventh Ave-
nue in the garment area and discussed the instant case with
him. Chapman testified without contradiction, that he
asked Oquendo why he was let go and Oquendo replied he
was let go for reasons he really did not know at that par-
ticular time. When Chapman commented something must
have happened, he claims Oquendo told him that he was
being blamed for things he had not done.
B. Analysis and Conclusions
While acceptance of Oquendo's version of the September
8 discharge conversation would eliminate the need for ex-
tensive analysis of the facts in this case, I do not credit
Oquendo's versions of the September 8 discussion between
he and Morton. As revealed above, Chapman testified he
asked Oquendo why he had been fired sometime in early
1978 and Oquendo answered that he really did not know;
that he was being blamed for things he had not done. Sig-
nificantly, Oquendo failed to deny the comments attributed
to him by Chapman, and those comments describe in sum-
mary fashion, Morton's version of the September 8 discus-
sion. The above factor, coupled with the admitted fact that
Oquendo paid Lopez $200.00 to attend the hearing con-
vinces me that Morton's testimony concerning what oc-
curred on September 8 is more reliable than that given by
Oquendo.
In the final analysis, the situation presented here is one
wherein General Counsel has adequately shown that
Oquendo was harassed by Respondent from August 17 un-
til the date of his discharge because Respondent wanted
this known union adherent to quit. On the other hand, Re-
spondent has adequately shown that a production problem
existed on September 8; that Morton attempted to obtain
Oquendo's cooperation to cure the problem; that Oquendo
refused to cooperate and told Morton if he did not like his
attitude he could fire him; and that Morton accepted the
employee's suggestion and fired him.
Patently, Morton's harrassment of Oquendo during the
last three (3) weeks of his employment at Respondent cre-
ates a very strong suspicion that this employee's known
union sentiment was a factor considered by Morton when
he discharged the employee on September 8. Nevertheless,
under Board law, an employee is not insulated from dis-
charge for cause merely because he engages in union activi-
ties, and the facts in this case reveal that Oquendo was
definitely insubordinate when Morton attempted to gain his
cooperation to solve a production problem on September 8.
In sum, I find that Respondent has demonstrated that it
had cause for discharging Oquendo on September 8, 1977,
and General Counsel has failed to offer sufficient evidence
to show that the assigned cause for the discharge was a
pretext to mask an unlawful motive for the discharge. Ac-
cordingly, I find Respondent did not violate Section 8(a)(1)
and (3) of the Act as alleged by discharging Oquendo on
September 8, 1977. Accordingly, I recommend that the
complaint herein be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has not violated the Act in any respect
alleged in the complaint.
[Recommended Order for dismissal omitted from publi-
cation.]
1096