Lustrelon, Inc.

National Labor Relations Board - Board Decisions

May 25, 1979

242 N.L.R.B. 561 (N.L.R.B. 1979)

LUSTRELON, INCORPORATED
Lustrelon, Incorporated and Francisco Rodriguez.
Case 22-CA-7549
May 25, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On January 24, 1978, Administrative Law Judge
Donald R. Holley issued the attached Decision in this
proceeding. Thereafter, both the General Counsel
and Respondent filed exceptions and supporting
briefs,' and Respondent filed a reply brief to the Gen-
eral Counsel's 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,2 and
conclusions3 of the Administrative Law Judge, to
modify his remedy, 4 and to adopt his recommended
Order.
The Administrative Law Judge concluded, inter
alia, that the General Counsel has failed to offer suf-
ficient evidence to prove, by a preponderance thereof,
that Respondent terminated the employment of
Union Steward Rodriguez' brother-in-law, George
Castro, for discriminatory reasons in violation of Sec-
tion 8(a)(3) and (1) of the Act. Contrary to our dis-
senting colleague, we find that the record supports the
Administrative Law Judge's result on this point.
The essential facts of Castro's employment are not
in dispute. Shortly after the departure of Receiving
Department Supervisor Cascante on an extended 6-
I Respondent has requested oral argument. This request is hereby denied,
as the record, the exceptions, and the briefs adequately present the issues and
the positions of the parties.
2 Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law 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 Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
3 We agree with the Administrative Law Judge that Respondent through
its March 17 letter sought unilaterally to remove Rodriguez as the union
steward. In view of the Administrative Law Judge's credibility findings, the
record fully supports such a finding. In reaching this result, we do not, how-
ever, rely on the Administrative Law Judge's statement that "Rodriguez was
justified in believing upon receipt of the letter that Respondent rather than
the Union was removing him from his position as union steward." Rodri-
guez' belief in this regard is irrelevant with respect to the fact of unilateral
removal.
4The Adrministrative Law Judge, citing Florida Steel Corporation, 231
NLRB 651 (1977), inadvertently specified interest to be paid at 7 percent per
annum: however, there the Board stated that interest will be calculated ac-
cording to the "adjusted pnme rate" used by the U.S. Internal Revenue
Service for interest on tax payments.
week absence from work in January 1977,5 Rodri-
guez, then working in the receiving department, ad-
vised Plant Manager Weil that additional help was
needed in that department. At Rodriguez' request
Weil agreed to hire Castro, who at that time was in a
layoff status from his regular job with a different em-
ployer. Weil made it clear to Rodriguez at that time
that Castro's employment was only temporary and
would terminate upon the return of Cascante from his
leave of absence. Cascante returned to work during
the last week in February, and Castro's temporary
employment was terminated at the end of the first
week in March. Thus, Castro's employment history
with Respondent was basically just what it was un-
derstood to be at the time of his hire.
Nevertheless, Member Jenkins would find that
Castro's termination was an act of retaliation against
Rodriguez for helping certain employees secure pay
raises in February. In support of this conclusion, he
adverts to a comment by Supervisor Cascante that
Castro was discharged to get back at Rodriguez and
to certain testimony that there were available jobs in
certain new departments and in Castro's old depart-
ment at the time of his discharge. However, these var-
ious matters taken in context do not support the con-
clusion our dissenting colleague would have us reach.
In the first place, Rodriguez' role with respect to
the February raises was not one likely to create much,
if any, management antipathy toward him. In fact, he
did little more in essence than remind management to
make certain compensatory pay raises which indeed
it was preparing to make at the time of his reminder.
More specifically, as a consequence of an increase in
the Federal minimum wage, certain more senior em-
ployees were no longer receiving more in pay than
their juniors. This situation had arisen before as a
consequence of an increase in the Federal minimum
wage, and though Respondent had no obligation un-
der its bargaining agreement to grant compensatory
increases to the senior employees, its long-established
practice had been unilaterally to do so. In any event,
certain senior employees came to Rodriguez, who was
the union steward, complaining that they had not re-
ceived their compensatory pay raises, and he in turn
raised the matter in a meeting with management rep-
resentatives. Rodriguez' testimony indicates that at
that time Respondent had already begun the paper-
work preliminary to making the wage adjustments.
Sometime later three senior employees complained to
Rodriguez that their adjustments had been inad-
equate. He presented this complaint to management
at another meeting at which he also objected to the
conduct of some supervisors, stating that Respondent
could get more work out of the employees if the su-
All dates hereinafter are 1977, unless otherwise indicated.
242 NLRB No. 56
561
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pervisors treated them better. The foregoing is, inso-
far as the record indicates, the extent of Rodriguez'
activities as a union steward in this episode. Clearly,
they cost Respondent nothing-at least nothing that
Respondent was not already willing to pay as a mat-
ter of continuing practice-and otherwise those ac-
tivities seem wholly unexceptional. 6 Consequently,
Rodriguez' conduct in regard to the wage increases
was not of a kind that would be expected to evoke
recriminatory action from Respondent, and a con-
trary conclusion is unwarranted by the evidence.7
Further, there is nothing in the record to suggest that
the termination of Castro would be a plausible way of
getting back at Rodriguez for his union activities.
Thus, at the very outset the position of the dissent is
seriously undermined by the wholly unsubstantial na-
ture of the alleged cause of Castro's termination.
Second, the dissent in support of its position ad-
verts to a credited portion of Rodriguez' testimony to
the effect that Rodriguez was told by Cascante that
Castro's employment was being terminated "to get
back" at Rodriguez. Indeed, the Administrative Law
Judge found this credited passage from Rodriguez'
testimony to be the only significant evidence in sup-
port of the allegation that Castro was discriminatorily
terminated. As indicated, the Administrative Law
Judge promptly stated his unwillingness to place any
6 The Administrative Law Judge states that Rodriguez testified that at the
second meeting Respondent's Plant Manager Weil said to him, "You cost me
$5,000 already. What do you want me to do?" The record shows, however,
that Rodriguez testified that Weil told him, "It cost me $5,000 already,
Frank, what do you want me to do?" (Emphasis supplied).
Nevertheless, our dissenting colleague reaches just such a conclusion and
attempts to buttress it by reference to a comment made by Assistant Plant
Manager Riccardi to Rodriguez that Rodriguez "was making too many
waves and [Riccardi] was going to fit [Rodriguez] in cement shoes." We note,
however, that Riccardi's comment to Rodriguez was made prior to the im-
plementation of Respondent's decision to adjust the wages of some of the
more senior employees, in accordance with its longstanding practice of doing
so. Thus, Riccardi's comment cannot feasibly be construed as evidence of
recriminatory action against Rodriguez for his role-a very minor role at
that-in Respondent's granting of these wage increases. Moreover, the rec-
ord fails to show that Riccardi played any part in Respondent's decision to
grant the wage increases, thus further weakening our dissenting colleague's
contention that Riccardi's comment was recriminatorily motivated by what-
ever role Rodriguez may have played in Respondent's decision to grant the
wage increases. Finally, the record establishes that Riccardi's comment was
made in reference to Rodriguez' activities on behalf of employee Juan Cas-
tro, not Rodriguez' brother-in-law, George Castro, Thus, the facts of this
case fail to establish any casual connection between Rodriguez' minor role in
Respondent's decision to grant the wage increases, Riccardi's comment toRodriguez, and the termination of George Castro's temporary term of em-ployment. Therefore, while it is clear that Riccardi's comment is evidence of
hostility on the part of Respondent towards Rodriguez, it is equally clear
that the hostility toward Rodriguez evidenced by Riccardi's comment had no
bearing on the scheduled termination of Castro's temporary term of employ-
ment.
"In crediting this aspect of Rodriguez' testimony, the Administrative Law
Judge states that Cascante denied that he told Rodriguez that Respondent
terminated Castro to get even with Rodriguez. The record establishes, how-
ever, that Cascante made no such denial. Cascante's testimony on this issue
is as follows:
Q. (Respondent) Before you left on vacation] did anyone talk to you
about hiring a Mr. Castro?
A. (Cascante) No.
undue emphasis upon Cascante's remark because it
was clear to him, as it is to us, that Plant Manager
Weil, not Cascante, directed the termination of Cas-
tro's temporary employment and that the terms of
that employment, including the scheduled termina-
tion thereof, had been established and agreed upon
between Weil and Rodriguez 6 weeks earlier, while
Cascante himself was on vacation in Chile. 9 It is clear
Q. When you came back, was a Mr. Castro working there?
A. I saw him there, he was the brother-in-law.
Q. And when you came back, did you thereafter lay off Mr. Castro?
A. Not immediately. When I noticed that there [were] too many of usin the plant, I spoke to the manager [to see] if we could send him toanother building. That is the reason why I gave him the layoff. Because
there were too many.
Q. Did anybody tell you to lay him off because he was Rodnguez'
brother-in-law?
A. No.
Q. Did anybody tell you to lay him off because Rodriguez was in the
union?
A. No. The reason was because there were too many in the building.
Q. Did you ever hear anyone say that they wanted to lay off Mr.
Castro for anything to do with Mr. Rodriguez.
A. No.
Q. (General Counsel) Mr. Cascante, you stated that you had a con-
versation with Mr. weil in which you requested Mr. Weil to transfer
Mr. Castro to another department?
A. Yes.
Q. Were employees being hired in other departments?
A. No, that I don't know.
Q. Do you know if any new departments were being opened?
A No, my building is completely separated from the others.
Thus, having been asked, Cascante denied ever having been told to lay offCastro because of Castro's relationship to Rodriguez or because of Rodri-guez' union activities. However, not having been asked, Cascante never de-nied telling Rodriguez that Castro was being terminated "to get back" atRodriguez. Furthermore, even an affirmative response to such a question,
had it been asked, would not have been inconsistent with Cascante's earlier
denials that he had been told by anyone else that Castro was to be terminated
to get back at Rodriguez. In any event, we find that on the strength of this
record, Cascante's remark to Rodriguez was, at most, nothing more thanCascante's own personal opinion as to why Castro was being terminated-an
opinion in no way based on any guidance or information given to him by
Weil or any other official of Respondent. As such, it was quite properly
discounted by the Administrative Law Judge in his evaluation of evidence in
support of the allegation that Castro was discriminatorily terminated.
9 Our dissenting colleague contends that, in discounting the significance ofCascante's remark to Rodriguez that Castro was being terminated "to getback" at Rodriguez, the Administrative Law Judge ignored Cascante's testi-mony that he discussed the termination with Plant Manager weil. Our col-
league further contends that, having ignored such record evidence that Cas-
cante was involved in "management discussions" leading to Castro's
termination, the Administrative Law Judge failed to draw an inference that
Cascante was privy to the "real reasons" for the termination. The sum total
of Cascante's testimony about his discussion with Weil regarding Castro's
termination is that which is contained in the preceding footnote. It shows
that Cascante recognized that Castro was not needed in the department
(understandably, since Castro was hired only as a temporary fill-in during
Cascante's absence), that Cascante attempted to have Castro transferred tosome other department, and that Weil apparently chose to abide by his
earlier decision to terminate Castro's temporary employment upon Cas-
cante's return-a decision in which, as seen, Cascante played no part what-
soever. Nevertheless, our dissenting colleague suggests that in adopting this
view of the facts, we are like someone who attempts to understand and
appreciate a three-act play by viewing only acts I and Ill. But we find that
the employment drama of George Castro is a play set in two-not three-
acts. In act I Castro is hired for a temporary term of employment to coincide
with the temporary absence of Fernando Cascante. In act II Cascante re-
turns. and Castro departs. The final curtain falls; the play is over. Although
Cascante had a bit part in act II, he had no role in the production or direc-
tion of the play itself.
562
LUSTRELON. INCORPORATED
from the above that the decision to terminate Castro's
temporary employment was made simultaneously
with the decision to initiate it; that Cascante himself,
on vacation in Chile at the time these simultaneous
decisions were made, played no part therein: that
Castro's employment in fact terminated essentially
when it was initially scheduled to terminate, upon
Cascante's return; and that Cascante's remark to
Rodriguez as to why Castro was being terminated
amounted to nothing more than Cascante's unin-
formed and unsupported personal opinion, properly
discounted as such by the Administrative Law Judge.
Third, in support of his position that Castro's ter-
mination was unlawful, our dissenting colleague ad-
verts to certain testimony of Rodriguez that just prior
to Castro's termination Respondent opened up two
new departments, which required 25 new employees.
Respondent categorically denied the truth of such as-
sertions, and the Administrative Law Judge was "un-
willing to credit" Rodriguez' sweeping assertions of
two new departments and 25 new employees around
the time of Castro's termination. Nevertheless, the
dissent contends an inference adverse to Respondent
should be drawn from its failure to produce business
records in support of its denial of Rodriguez' asser-
tion. But, as counsel for the General Counsel herself
notes in her brief, she had subpenaed the relevant
documents-and it appears that the subpena was
complied with-yet she failed to produce the docu-
ments to support Rodriguez' claim concerning new
departments and employees.'0 Consequently, if an ad-
verse inference based on the nonproduction of busi-
ness records is to be made, the record would seem to
support making that inference against the General
Counsel's and dissent's position, not against that of
Respondent. But we need not go so far. The Adminis-
trative Law Judge in effect discredited Rodriguez' tes-
timony about two new departments and 25 new em-
ployees, and in the absence of any cogent reasons for
doing otherwise, we are content to leave the matter
there.
Finally, our dissenting colleague also refers to an
"admission" on the part of Cascante, to the effect that
Respondent needed additional workers in the receiv-
ing department, as undercutting Respondent's as-
serted lawful reason for terminating Castro's employ-
ment. The "admission" to which our colleague refers
appears in Rodriguez' testimony on direct examina-
tion, in which Rodriguez asserts that Cascante told
him, "They don't see why they should give him lay-
off because they need another guy in there anyway."
Assuming, arguendo, that this hearsay passage from
10 In her bnef, counsel for the General Counsel noted that she did subpena
the documents in question, but did not examine them and was unaware of
their contents.
Rodriguez' testimony can be construed as an admis-
sion on the part of Cascante, and further assuming.
arguendo, the accuracy of the contents of this passage
as to a need for an additional employee in the receiv-
ing department, this evidence must necessarily be
evaluated in light of Respondent's credited explana-
tion that the new employee who was hired into the
receiving department shortly after Castro's termina-
tion was an undercover private detective who was en-
gaged surreptitiously to investigate suspected thefts in
that department. Our dissenting colleague's doubt of
the truth of that explanation is not an adequate
ground for upsetting what are in effect the Adminis-
trative Law Judge's credibility resolutions with re-
spect to this matter.
In summary, it appears that Castro was terminated
essentially when he was originally scheduled to be at
the time of his hire, that Respondent's practice and
not Rodriguez' activities brought about the wage in-
creases purportedly causing Castro's termination, and
that the evidence is uncertain at best concerning the
continued availability of work for Castro at the time
of his discharge. Consequently, contrary to our dis-
senting colleague, we affirm in these circumstances
the Administrative Law Judge's conclusion that the
General Counsel has failed to prove by a preponder-
ance of the evidence that Castro was unlawfully ter-
minated.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that Respondent, Lustrelon, Incorporated,
Edgewater, New Jersey, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges that the discharge of
George Castro was unlawful.
MEMBER JENKINS, concurring in part and dissenting
in part:
Like my colleagues, I adopt the Administrative
Law Judge's findings that Respondent violated the
Act by threatening Union Steward Rodriguez, by at-
tempting to oust Rodriguez as steward, and by dis-
charging Rodriguez, all in retaliation for Rodriguez'
persistence in pressing employee grievances. Unlike
my colleagues, however, I do not agree with the Ad-
ministrative Law Judge that the General Counsel
failed to prove by a preponderance of the evidence
that Respondent laid off Rodriguez' brother-in-law,
George Castro, as part and parcel of its effort to re-
563
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taliate against Rodriguez and to dissuade him from
his union activities."
In brief, the record shows that Castro was hired in
January 1977 after Rodriguez, who had not yet as-
sumed the duties of union steward, approached Plant
Manager Weil and informed Weil that Castro was his
brother-in-law and was in need of a job because he
had been laid off by another employer. Weil offered
Castro a position as a receiving clerk in Respondent's
shipping and receiving department pending the re-
turn of Fernando Cascante, the department supervi-
sor, from an extended vacation in Chile.
Castro was laid off on March 4, 1977, allegedly
because Cascante's return to work meant that Re-
spondent no longer had need of Castro's services. The
layoff followed by a day or two a grievance meeting
between Rodriguez and Weil during which Weil com-
plained that Rodriguez, by his diligence in pressing
employee grievances, "cost me $5,000 already." As
found by the Administrative Law Judge, at the close
of this conversation Weil remarked that he intended
to lay off some employees, starting with the receiving
department, where, as Weil carefully pointed out,
Castro and Rodriguez would be the first to go, as they
had the least seniority. However, Rodriguez re-
sponded that under the contract as union steward he
could not be among the initial layoffs.
Shortly thereafter, according to Rodriguez' cred-
ited testimony, he was approached by Supervisor
Cascante, who told him that Respondent intended to
lay off Castro even though Castro was a good worker
and even though "they need another guy in there
anyway." Cascante further explained that Respon-
dent was laying off Castro "go get back" at Rodri-
guez. After Castro was laid off on March 4, Rodri-
guez sought out Cascante and Weil and asked why
Respondent did not transfer Castro to another de-
partment.'2 According to Rodriguez, Weil simply
walked off when asked about the possibility of trans-
ferring Castro. Rodriguez further testified that about
the time of Castro's layoff Respondent was in the pro-
cess of staffing two new departments and had already
hired approximately 25 new employees by the end of
February. In addition, the record shows and the Ad-
ministrative Law Judge found that shortly after Cas-
tro was laid off Respondent hired Lopez Chavez and
assigned Chavez to the receiving and shipping depart-
" It is, of course, well settled that a layoff or other adverse job action for
such a motive is violative of the Act. See, generally, Vanella Buick Opel, Inc.,
191 NLRB 805, 815 (1971); American Grinding & Machine Co., 150 NLRB
1357, 1370 (1965).
12 The testimony of Respondent's own witnesses established that in the
past Respondent has attempted to transfer employees rather than lay them
off. The record further establishes that most of the work performed at the
plant requires little in the way of skills or training. Moreover. Weil conceded
that Castro was such a good employee that he would have been offered
permanent employment had a position "been open."
ment, where he performed work previously per-
formed by Castro.
In declining to find a violation predicated on Cas-
tro's layoff, the Administrative Law Judge reasoned
that Respondent knew when it hired Castro that he
had been laid off by another employer and therefore
offered him a job that would last only until Cascante
returned to work. The Administrative Law Judge
largely discounted Cascante's statement to Rodriguez
that the Company was going to lay off Castro "to get
back" at Rodriguez. In so doing, the Administrative
Law Judge concluded that Weil actually ordered the
layoff and that the layoff was consistent with the tem-
porary nature of Castro's job. Finally, the Adminis-
trative Law Judge concluded that testimony that Re-
spondent opened two new departments and hired 25
new employees-yet refused to transfer Castro-was
undercut by the failure of either Respondent or the
General Counsel to place in evidence "the best evi-
dence"; i.e., Respondent's books and records. And
the Administrative Law Judge accepted Respondent's
explanation that Chavez, hired to do Castro's work in
the receiving and shipping department, was employed
not because of Respondent's work requirements, but
rather because Respondent had suffered losses in that
department, and Chavez was a licensed detective.
In my view, the Administrative Law Judge's treat-
ment of the Castro layoff is a classic case of missing
the forest for the trees." In the first place, whether or
not Castro was originally hired on the understanding
that his job in receiving and shipping was temporary
and might end with Cascante's return, Cascante in
fact returned from vacation in late February, yet Cas-
tro was not terminated until after Rodriguez aroused
Respondent's animus by securing wage adjustments
for employees in early March. Moreover, the connec-
tion between Rodriguez' efforts on behalf of employ-
ees and the precipitous termination of his brother-in-
law is hardly speculative or conjectural.' 4 Even an
obtuse employee would be unlikely to miss the import
II My colleagues' approach to this case is similar to the one taken by the
Administrative Law Judge and is just as wrong. The burden of their argu-
ment appears to be that Castro's termination could not have been unlawfully
motivated and violative of the Act because his "employment history ... was
basically just what it was understood to be at the time of his hire." This
reasoning, although neat, is totally unpersuasive. Thus, using the same logic,
one might as well argue that to understand and appreciate a three-act play
one need only view the opening scene of act I and the closing scene of act
Ill.
14 Unfortunately, the same cannot be said for the majority's totally unwar-
ranted surmise that "Rodriguez' conduct in regard to the wage increases was
not of a kind that would be expected to evoke recriminatory action from
Respondent .... " Plainly enough, Rodriguez was a thorn in Respondent's
side, not only because he pressed Respondent on the matter of wage adjust-
ments but also because of his enthusiastic advocacy of employee grievances.
Thus the Administrative Law Judge found, and my colleagues concede, that
Assistant Plant Manager Riccardi told Rodriguez he "was making too many
waves and he was going to fit him in cement shoes." My colleagues, however.
discount the significance of this as an expression of Respondent's hostility
toward Rodriguez with the observation that there is no evidence of a "causal
connection" between Rodnguez' conduct, Riccardi's remarks, and George
564
LUSTRELON, INCORPORATED
of Weil's comments to Rodriguez, coupling as they
did Weil's chagrin over paying wage adjustments
with the prediction that there would be layoffs in re-
ceiving and shipping, where, as he pointed out, Rod-
riguez and Castro were the least senior workers. Any
remaining doubt about Respondent's motivation is
dispelled by Foreman Cascante's admission that there
was work remaining for Castro in receiving and ship-
ping at the time of the layoff.1
Additionally, the Administrative Law Judge erred
in his treatment of the evidentiary issue raised by
Rodriguez' testimony that Respondent, at approxi-
mately the same time as it terminated Castro, was in
the midst of staffing two new departments. Contrary
to the Administrative Law Judge's suggestion, Re-
spondent's failure to introduce its own business rec-
ords to support its denial of Rodriguez' testimony
plainly warrants an inference that production of those
records would reveal facts inconsistent with Respon-
dent's position.' 6 And the Administrative Law Judge
compounded his error by overlooking or ignoring
Foreman Cascante's testimonial admission that
shortly after Castro's layoff Respondent assigned new
help to the receiving and shipping department be-
cause Cascante "had a lot of work that had to be
done."'
In short, all the relevant facts and circumstances
surrounding Respondent's decision to lay off Cas-
tro-including Respondent's animus toward Rodri-
guez, the timing of the layoff, and the admission of
Respondent's supervisory personnel at the time of the
layoff and thereafter at the hearing-plainly demon-
Castro's termination. In short, the majority again proves the wisdom of the
adage that you can lead a horse to water, but you cannot make it drink.
Finally, my colleagues intimate they would not find a violation here in
part because it strikes them that Respondent would not have retaliated
against Rodriguez by terminating the employment of his brother-in-law. To
state this proposition is sufficient to rebut it.
11 In discounting the significance of Cascante's statement to Rodriguez, the
Administrative Law Judge ignored Cascante's testimony that he discussed
the layoff with Plant Manager Weil. Having ignored the record evidence that
Cascante was involved in management discussions leading to Castro's layoff,
the Administrative Law Judge failed to draw the inference, an inference
plainly reasonable under all the circumstances, that Cascante was privy to
the real reasons for the layoff, reasons which he thereafter accurately re-
ported to Rodriguez. See Poloron Products of Mississippi, Inc., 217 NLRB
(1975); West Coast Casket Co., 192 NLRB 624 (1971).
The Administrative Law Judge also failed to consider that as foreman of
the receiving and shipping department, Cascante was in the best possible
position to assess Respondent's work requirements in that department, and,
accordingly, Cascante's admission to Rodriguez that "they need another guy
in there anyway" undercuts Respondent's asserted reason for the layoff.
i' See Pepsi Cola Bottling Company, 187 NLRB 15, 19 (1970); L B. Foster
Company, 168 NLRB 83, 86 (1967).
i7 Nor is the damage to Respondent's case repaired even accepting, argu-
endo, Respondent's explanation that Chavez, the individual assigned to do
Castro's job, was a detective. Thus it may have been a happy circumstance
for Respondent that Castro's job was available when the need for surveil-
lance over employees in the receiving and shipping department became ap-
parent in early March. This does not, however, detract from the record
evidence that at the time of the layoff, and thereafter, there was work avail-
able in the department, and Respondent needed "another guy in there any-
way..
strate the pretextual nature of the asserted reasons for
the layoff and reveal the unlawful real reason for Re-
spondent's action, to wit, Respondent's desire to in-
timidate Rodriguez and to dampen his enthusiasm for
union activities. Given this record, the Administrative
Law Judge's conclusion that the General Counsel
failed to meet his burden of proof, as well as my col-
leagues' acceptance of that conclusion, is not merely
unwarranted, it is incomprehensible. Accordingly, I
must dissent.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge: Upon a
charge filed by Francisco Rodriguez (herein called the
Charging Party and/or Rodriguez) on March 23, a com-
plaint was issued on May 6, 1977.'
Summarized, the complaint alleges that Lustrelon, Incor-
porated, (herein called Respondent) violated Section 8(a)(I )
of the Act by threatening employees with discharge if they
continued to press grievances and by notifying Rodriguez
by letter that he could no longer act as union steward. It
further alleges that Respondent violated Section 8(aX I) and
(3) of the Act by discharging employees Rodriguez and
George Castro because they joined or assisted the Union or
engaged in other protected concerted activities.' Respon-
dent's answer denied the commission of the unfair labor
practices alleged.
The case was heard before me in Newark, New Jersey,
on August 4 and 5, and posthearing briefs were filed by
Respondent and the General Counsel. Upon the entire rec-
ord and the briefs of the parties, and from my observation
of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The complaint alleges and the answer admits that Lustre-
Ion, Incorporated, maintains its main office and principal
place of business at I River Road, Edgewater, New Jersey,
where it is engaged in the manufacture, sale, and distribu-
tion of lamps and related products. During the 12 months
preceding issuance of the complaint, it purchased from sup-
pliers located outside the State of New Jersey and sold and
delivered to purchasers located outside the State goods and
materials valued in excess of $50,000. It was admitted, and
I find, that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
' All dates are in 1977 unless otherwise stated.
2 The General Counsel amended the complaint at the opening of the hear-
ing to allege that Joe Martinez. Fernando Cascante, and Gabriel Riccardi
were at all times material agents of Respondent and supervisors within the
meaning of Sec. 2(11) of the Act and to allege that in February or March
Riccardi threatened Rodriguez with reprisal if he continued to press grinev-
ances.
565
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. THE lABOR ORGANIZATION
It was admitted, and I find, that Amalgamated Local
298, AFL-CIO (herein called the Union), is a labor organi-
zation within the meaning of Section 2(5) of the Act.
111. THE ALI(iEDi) UNFAIR LABOR PRACTICES
A. Issues
The issues posed by the complaint in its final amended
form are:
I. Whether Plant Manager Walter Weil warned employ-
ees in late February that they would be laid off if they
continued to present and press grievances pursuant to a
collective-bargaining agreement.
2. Whether Assistant Plant Manager Riccardi threatened
Francisco Rodriguez with reprisals if he continued to pre-
sent and press grievances pursuant to a collective-bargain-
ing agreement.
3. Whether Respondent terminated George Castro in
violation of Section 8(a)(3) of the Act.
4. Whether Respondent violated Section 8(a)(1) of the
Act by informing Rodriguez by letter dated March 17 that
he could no longer act as union steward.
5. Whether Respondent terminated Francisco Rodriguez
in violation of Section 8(a)(3) on March 21, 1977.
B. Facts
Respondent employs approximately 120 employees at its
Edgewater, New Jersey, lamp plant. Amalgamated Local
298, AFL-CIO, represents its production and maintenance
employees, and the parties were, at all times material in this
case, signatory to a subsisting collective-bargaining agree-
ment.
The record reveals Respondent's employees are super-
vised by, inter alia, the following: Harold Schiller, pres-
ident; Walter Weil, vice president and plant manager; Da-
vid Goldberg, vice president; Gabriel Riccardi, assistant
plant manager; Fernando Cascante, supervisor of the re-
ceiving department; and Jose Martinez, supervisor of the
lamp department
Rodriguez was originally employed by Respondent on
January 5, 1976. He worked from that time until May II11,
1976, in the receiving department under the supervision of
Foreman Cascante. While Rodriguez testified at the hear-
ing that he was laid off by Respondent on May 11, 1976, I
credit the testimony of Weil and office employee Lillian
Cupelli, which reveals he quit his job to open his own busi-
ness.4
In December 1976 Rodriguez contacted Cascante, seek-
ing reemployment. Weil credibly testified that Cascante
It was stipulated, and I find, that the named individuals are supervisors
and agents of Respondent within the meaning of Sec. 2(1 1) of the Act. Addi-
tionally, Respondent admits, and I find, that Fay Raphael, Respondent's
controller, acted as Respondent's agent when she signed a letter in evidence
as Joint Exh, 2.
4 Both Weil and Cupelli testified that Rodriguez quit but requested that
Respondent report the termination as a layoff to enable him to collect unem-
ployment. Cupelli, in particular, was a more impressive witness than Rodri-
guez, and company records prepared by her contemporaneously with the
event support her testimony.
consulted him after Rodriguez called. and he told Cascante
they could not use another employee at that time. Weil
further testified that Cascante subsequently discussed the
situation with him a second time, indicating that he [Cas-
cante] planned to be off work for an extended period start-
ing in mid-January and that he felt Rodriguez could satis-
factorily perform his work while he was gone. Weil then
accepted Cascante's recommendation that Rodriguez be
hired to perform Cascante's work in his absence, and Rod-
riguez was rehired as assistant receiving clerk on January 4,
1977.
When Rodriguez was rehired by Respondent there was
some question as to whether his seniority should date from
the original date of hire or the most recent date of hire.
Cupelli raised the question when the employee reported
and indicated Weil might give Rodriguez seniority from his
original date of hire.' When Rodriguez received his first pay
after rehire, he noted that union dues had been deducted
and that he was given Blue Cross-Blue Shield coverage by
Respondent. As the subsisting agreement between Respon-
dent and the Union provides employees must join the
Union 31 days after hire and that Blue Cross-Blue Shield
coverage will be provided after the employee has worked
for Respondent for I year, I infer that Respondent decided
in early January to compute Rodriguez' seniority from his
original date of hire.
Cascante left for Chile on January 18 and remained off
the job until the end of February. Rodriguez testified that
about a week after Cascante left he informed Weil they
needed help in the receiving department, and he recom-
mended that Weil hire his brother-in-law, George Castro,
who was on layoff from United Parcel Service (U.P.S.).
Weil accepted the recommendation, indicating Rodriguez
could bring his brother-in-law in at $3 per hour to assist in
the receiving department until Cascante returned to work.
In early February, the then acting union steward at the
plant, Emilio Henrique, a/k/a Cottini, asked Rodriguez if
he would accept the union steward position. At or about
the same time Henrique circulated a petition to name Rod-
riguez steward, and some 62 employees allegedly signed the
petition. Rodriguez accepted the position and notified Weil
on or about February 4 that he had been selected union
steward and that Henrique would be his assistant. Addi-
tionally, Rodriguez contacted Peter De Carlo, a Union rep-
resentative, and the latter came to the plant, inspected the
petition, and telephoned the Union in Rodriguez' presence
to inform it that Rodriguez was the official union steward at
the plant.6
At the time Rodriguez was appointed union steward, the
record reveals, some of Respondent's older employees were
dissatisfied with the pay they received, as the Federal mini-
'The subsisting collective-bargaining agreement between Respondent and
the Union (J. Exh. I) reveals an employee loses his seniority by, inter alia,
quitting or being in layoff status for more than 6 months. Rodriguez was not
contractually entitled to senionty from his original date of hire when rehired.
6 De Carlo, who testified at the hearing, admitted Rodriguez told him at
the plant in February that the employees had selected him as their steward,
but he denied he saw a petition or indicated that Rodriguez was appointed
by the Union as steward. De Carlo exhibited considerable animosity towards
Rodriguez, and his demeanor while on the witness stand was most unimpres-
sive. I credit the testimony of Rodnguez, which serves as the basis for the
finding set forth above.
566
LUSTRELON. INCORPORATED
mum wage had changed January , and new hires were
coming into the plant at rates of pay which equaled those of
older employees. While the collective-bargaining agreement
did not obligate Respondent to effectuate a pay adjustment,
Rodriguez discussed the complaint of employees with Weil,
and appropriate adjustments were made on or around
March 2. Thereafter, several employees claimed their pay
was not adjusted sufficiently, and Rodriguez brought such
complaints to Weil's attention. During discussion of the lat-
ter alleged individual adjustment complaints, Rodriguez
testified, Weil told him, "You cost me $5,000 already, what
do you want me to do." Rodriguez thereupon responded
that supervision was not treating the employees fairly, and
Weil agreed, indicating he planned some supervisory
changes. During the same conversation, Weil stated he in-
tended to lay off some employees, starting with the receiv-
ing department, where Castro and Rodriguez would be laid
off, as they had the least seniority. Weil then explained that
he had been watching Rodriguez, liked his work, and saw
he could communicate with people. He further indicated
that while he would lay Rodriguez off, he would like to
bring him back as a supervisor or as an assistant supervisor
when an opening occurred. Rodriguez informed Weil that
he liked his present job and did not want to be a supervisor.
Additionally, he informed Weil he could not lay him off,
because he was the union steward.'
Shortly after Rodriguez and Weil had the layoff-supervi-
sor discussion, Weil visited the printshop, where Henrique
worked. Rodriguez testified without contradiction that he
then asked Weil if he intended to lay him off because he
was making too many waves. Weil replied, "No," that he
was serious about wanting to make him a supervisor. Hen-
rique entered the conversation by stating he did not think
what he was trying to do to Rodriguez was right, and Weil
informed Henrique that he had better be careful, that he
should know where he stands with the Company. B
Rodriguez testified that Assistant Plant Manager Ric-
cardi threatened him while he was representing an em-
ployee who had allegedly injured his eye on the job in mid-
February. The employee, Juan Castro, appeared at the
plant on Monday, February 14, and claimed he had gotten
metal in his eye while operating a machine the preceding
Friday. He was sent to the company doctor, who concluded
the employee had a sty and that there was nothing in his
eye. The employee returned to the plant, indicating he
could not work and desired to see his own doctor. Rodri-
guez testified that 8 days later he approached Riccardi to
discuss a rumor that Respondent intended to terminate
Castro. Rodriguez claims that Riccardi then told him he
was making too many waves and he was going to fit him in
cement shoes. Rodriguez testified that his reply was to the
effect that the Mafia wasn't what it used to be and that the
While Rodnguez and Well descnbed the conversation similarly, I base
my findings upon Weil's testimony, as Rodriguez erroneously placed the
conversation as having occurred by February, and he erroneously testified
that Henrique was a witness to the conversation. In his preheating statement
Rodriguez indicated he told Henrique about the conversation that aftennoon.
Rodriguez admitted that Weil appeared to be serious when offering him a
supervisory position.
i Weil did not deny the remarks attributed to him. As Hennque was fired
a short time later for falsifying entries on his timecard, I infer Well was
indirectly making reference to Henrique's timecard activities at the time.
conversation then turned to discussion of whether Respon-
dent had goggles which the machine operators could use.
Riccardi denied that Rodriguez discussed the Castro situ-
ation with him at any time and claimed the "cement shoes"
comment was made under different circumstances. His ver-
sion was that Rodriguez and several other persons were in
his (Riccardi's) office having coffee one day when Rodri-
guez informed him that the western New York Mafia had
taken over the shop. Riccardi claims he replied: "Franky,
you may be sure if you ever do something to me, do it right.
Then I don't get out of the floor because if I get out the
floor you done something to me, I make cement shoes out
of you." I credit Rodriguez.9
On Friday, March 4, Rodriguez' brother-in-law, George
Castro, was laid off. Rodriguez testified he discussed the
layoff with his immediate supervisor, Cascante, and the lat-
ter told him he had been instructed to lay Castro off at the
end of the first week in March, but he didn't want to do it
because Castro was a good worker, and they could use him
in the receiving department. Rodriguez further testified
Cascante told him he felt the Company was laying Castro
off to get even with Rodriguez.'° During their discussion
concerning Castro, Rodriguez asked Cascante if it was pos-
sible to transfer Castro to another department rather than
lay him off. Cascante told Rodriguez he would have to dis-
cuss the matter with Weil. Rodriguez then went to Weil,
who told him he couldn't transfer Castro to another depart-
ment.
If Rodriguez interpreted Riccardi's comment concerning
"cement shoes" as a warning that he should temper his
steward activities, the record reveals he ignored the com-
ment. Subsequent to his activities in the Castro matter, he
testified, he attempted through Weil to obtain payment of
the doctor and hospital bills incurred by a female employee
who had recently had a baby. Weil referred him to the
Union, as the employee was covered by its plan rather than
Respondent's Blue Cross-Blue Shield plan. Thereafter, in
early March, Rodriguez and several other employees pro-
tested when assigned to unload a truck carrying chain used
in the manufacture of lamps because the boxes of chains
were not palletized. The employees, including Rodriguez,
refused to unload the truck, and a foreman and the driver
unloaded the truck.
At the time that Rodriguez and others refused to unload
the truck mentioned above, Foreman Cascante informed
Rodriguez that he could no longer talk to employees with-
out permission. Cascante explained that he had been in-
formed that an employee having a grievance would ask his
supervisor for permission to talk to the steward, that the
grievant's supervisor would discuss the matter with Ric-
cardi, and that Riccardi would then contact the steward's
foreman, Cascante, who, together with Riccardi, would de-
9 While Riccardi denied that Rodriguez had pressed any grievances involv-
ing Juan Castro with him. he did not deny that Rodriguez attempted to
cause Respondent to supply machine operators with goggles. This, coupled
with the fact that Rodnguez was thoroughly familiar with Castro's situation,
convinces me that h attempted to assist the employee and that Riccardi's
denial that Rodriguez assisted Castro and his denial that he threatened Rod-
riguez are not credible.
1' Cascante denied he told Rodriguez the Company laid Castro off to get
even with him (Rodriguez). I credit Rodnguez
567
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cide whether the steward should be given permission to go
to the grievant's workplace.
Apparently a week after the chain truck incident, Rodri-
guez and another employee refused to unload a truck
loaded with lampshades. On that occasion Weil went to the
work location and told Rodriguez they had been asked to
unload a company truck, and if they refused to perform the
work task, they would be fired. They unloaded the truck.
On March 8 Emilio Henrique, the assistant union stew-
ard, was fired for making false entries on his timecard. Rod-
riguez discussed the reason for the termination with Weil,
who originally told him he did not have to discuss the situ-
ation with him, but then indicated that he had been fired
because he quit work earlier than his timecard indicated
and that his timecard manipulations had become common
knowledge throughout the plant and could no longer be
ignored. Rodriguez testified without contradiction that he
then told Weil he needed an assistant steward, and Weil
informed him he did not think he needed an assistant. Rod-
riguez credibly testified that Union Agent De Carlo came to
the plant to discuss the Henrique termination with Weil
and that De Carlo indicated he would file a grievance but
never did.
On March 17 three employees were given written warn-
ings because of absenteeism. When Rodriguez learned of
the warnings he attempted to cause their immediate super-
visor, Jose Martinez, to rescind them. The record fails to
reveal the ultimate disposition of the grievance.
When he received his paycheck on March 18 Rodriguez
was given a letter signed by Fay Raphael, Respondent's
controller. The letter provided:
March 17, 1977
Mr. Francisco Rodriguez
712-14th Street
Union City, NJ 07087
Dear Mr. Rodriguez:
Enclosed is check for $10.00-this represents union
dues deducted from your wages in January and Febru-
ary 1977. The deduction for union dues was a clerical
error on our part and was discovered during a recent
routine audit of our files.
Since you voluntarily left your job to go into your
own business venture in May of 1976, any subsequent
rehiring would be on the same basis as that of a new
employee.
In essence, this means that we would not begin to
deduct union dues from your wages until February 4,
1977, 30 days after you were hired. We will resume
deductions from your wages for union dues beginning
this week.
As per the by-laws of the union, only persons having
been full-time employees for one year are eligible to be
elected shop-steward. Therefore, the waving of union
dues, in lieu of holding this position cannot apply to
you.
We have also made a clerical error in your case by
enrolling you in our medical program as of January 4,
1977, when you should have been enrolled as of April
4, 1977.
Since this was our clerical error, we will absorb the
cost. However, we wish to again state that this was an
error on our part.
We hope that this letter satisfactorily explains the
situation and, of course, if you have any questions, feel
free to speak with me.
Cordially yours,
Fay Raphael
Controller
Lustrelon Inc.
cc: Walter Weil
Wilfred Gobbo
FR: il
Respondent's Vice President David Goldberg testified he
actually dictated the above-quoted letter which was signed
by Raphael. He testified that on an unspecified date a Mr.
Gobbo of the Union telephoned him and asked why the
Union was not receiving dues on Rodriguez. Goldberg
claimed he put Gobbo on hold and asked the payroll clerk,
who checked Rodriguez' card and said dues were not being
sent to the Union for Rodriguez, as he was the shop stew-
ard. Goldberg testified he relayed such information to
Gobbo, and the latter informed him that "Frank was not
shop steward and that we should immediately start deduct-
ing dues." According to Goldberg, the alleged conversation
with Gobbo caused him to dictate the letter given to Rodri-
guez on March 18."
Rodriguez testified that his understanding of the March
17 letter was that he had been "fired" as union steward by
Respondent. He reacted by informing employees that Re-
spondent had fired him from his steward position. On Mon-
day, March 21, the record reveals, Respondent discovered
that one of its high lifts had been disabled, as the ignition
key had been broken off, and its spark plug wires had been
ripped out. Rodriguez credibly testified that he declined to
represent employees that day, telling them he was no longer
the union steward. 2 During the course of the day several
employees indicated they would walk out if Rodriguez was
not their union steward. Rodriguez testified he attempted,
without success, to contact the Union concerning the stew-
ard matter on Monday.
The record reveals that Rodriguez finally contacted
Union Representative De Carlo on Tuesday morning. Rod-
riguez credibly testified he told De Carlo that the Company
had given him a letter which stated he could not be the
union steward, that the employees were discussing a strike
to protest the action, and that the requested that De Carlo
come to the plant. De Carlo replied he hadn't seen a copy
of the letter and had no time to come to the plant.'
I Gobbo was not called as a witness, and while Respondent's payroll
clerks testified at the hearing, they were not interrogated concerning the
above-described incident.
12 Weil testified Rodriguez was fired on March 21, when he attempted to
cause employees to engage in a strike in violation of the no-strike clause in
the collective-bargaining agreement. As Weil erroneously placed the chain
truck incident as having occurred in late February or early March, and other
witnesses place the beginning of the strike on March 22, 1 find Rodriguez
was terminated on MNarch 22, 1977.
'3 De Carlo inferentially denied the conversation, as he claimed he learned
Respondent's employees were on strike when he read a message left by an
employee on March 22. Rodriguez was the more impressive witness, and I
credit his testimony.
568
LUSTRELON, INCORPORATED
Shortly before noon on March 22, Rodriguez informed
Respondent's employees that he wanted to meet with them
in Respondent's parking lot at noon. Riccardi heard rumors
of an intended strike and relayed them to Weil. Shortly
before noon Rodriguez stationed himself near Respondent's
timeclock to urge first-floor employees, whose lunchtime
was from 11:30 a.m. to 12 m., to go to the parking lot rather
than return to work. Weil then approached Rodriguez at
the timeclock and informed Rodriguez that he was calling
an illegal strike. Rodriguez claims he told Weil he just
wanted to meet with employees in the parking lot, and Weil
claims Rodriguez agreed he was calling the employees out
on strike.' In any event, as employees started for the park-
ing lot, Weil informed Rodriguez he was fired for calling an
illegal strike, and he told the employees they would be fired
if they walked out. After he was told he was fired, Rodri-
guez informed the employees Respondent could not fire
them if they wanted to strike, and within a short time most
of the employees left the plant. They were thereafter evicted
from Respondent's property and from an adjacent corpora-
tion's property by police and remained on strike Tuesday
and Wednesday.
On Tuesday or Wednesday, while Respondent's employ-
ees were on strike, Rodriguez caused Tony Carrero, pres-
ident of another union, and that union's attorney to come
to the plant to meet with Respondent's management. The
occurrences during that meeting are not revealed by the
record. Subsequently, De Carlo came to the plant late dur-
ing the afternoon of March 23. He chastised Rodriguez for
causing the strike and caused the employees to return to
work on Thursday, March 24, by promising that the Union
would negotiate concerning the disagreement with the
Company.'
Analysis and Conclusions
A. The Alleged 8(a)(1) Conduct
By Plant Manager Weil
The General Counsel contends that Respondent violated
Section 8(a)(l) of the Act when Weil informed Rodriguez
that he intended to lay him off and possibly recall him to a
supervisory position. I find no merit in this contention.
As previously indicated, Weil originally refused to rehire
Rodriguez in December of 1976, because he felt Respon-
dent's receiving department was fully staffed. Subsequently,
the departmental foreman, Cascante, caused Weil to
change his mind when he observed that Rodriguez could
perform his duties while he was absent in connection with
his intended trip to Chile. Thus, the record reveals that
Rodriguez and, subsequently, his brother-in-law, George
Castro, were hired to fill in for Cascante while he was ab-
"Although Respondent offered testimony through employee Nereyda
Trianea to corroborate Weil's assertion that Rodriguez agreed he was calling
a strike, Trianea vacillated when testifying, and I conclude her testimony is
unreliable. While I credit Rodriguez. I observe that Weil probably construed
Rodriguez' comment as an admission that he was calling a strike.
I infer that De Carlo had learned that Rodriguez asked another union
for assistance, as De Carlo admittedly used derogatory terms when address-
ing Rodriguez when he got to the plant on March 23.
sent from mid-January until the end of February. Signifi-
cantly, Weil informed Rodriguez, when the latter told him
that he had been selected as the union steward, that it
would be all right for then but not later on. It is in the
above context that Weil told Rodriguez immediately after
Cascante's return to work that he had been instructed to cut
costs and planned to accomplish such by laying off Castro
and Rodriguez, but that he intended to recall Rodriguez as
a supervisor because he was pleased with his work and the
way he communicated with employees. When Rodriguez
asked if Weil had decided upon such a course of action
because he [Rodriguez] was "making too many waves,"
Weil denied that such was the case and indicated he was
serious about the supervisory offer.
Since Respondent, in effect, rehired Rodriguez to accom-
plish Cascante's supervisory duties in his absence, and Weil
predicted his status would change at the time the union
steward matter was first raised, I am unwilling to infer that
Weil's early March decision to lay Rodriguez off and bring
him back as a supervisor was occasioned by the employee's
union activities. Accordingly, I find that General Counsel
offered insufficient evidence to prove that Respondent un-
lawfully threatened in early March to lay Rodriguez off or
promote him to a supervisory position because he presented
and pressed grievances pursuant to a collective-bargaining
agreement. For the reasons stated, I recommend that para-
graph 9 of the complaint be dismissed.
By Assistant Plant Manager Riccardi
The General Counsel claims that Respondent violated
Section 8(a)(1) of the Act when Riccardi, during discussion
of a grievance with Rodriguez, informed him he was mak-
ing too many waves and he would fit him with cement
shoes. I have credited Rodriguez' version of the conversa-
tion and therefore find, as alleged, that Respondent,
through the described comment by Riccardi, threatened
Rodriguez in violation of Section 8(aXl1) of the Act during
discussion of the Juan Castro matter.
The March 17 letter
The General Counsel contends, and I agree, that Respon-
dent violated Section 8(a)(1) of the Act when it informed
Rodriguez by letter dated March 17 that he could no longer
act as union steward.
In Bates Brothers, Inc., 135 NLRB 1295, 1297 (1962), the
Board stated:
It is well established that, in the absence of special
circumstances, an employer does not have a right of
choice either affirmative or negative as to who is to
represent employees for any of the purposes of collec-
tive bargaining.
Respondent, in effect, argues that special circumstances ex-
istent in this case justified the issuance of its March 17 let-
ter. Thus, it sought to prove that it published the March 17
letter and delivered it to Rodriguez after Union Official
Gobbo informed Respondent Vice President Goldberg in a
telephone conversation that Rodriguez was not the official
union steward at the plant and that union dues should be
569
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deducted from his earnings. Apart from the fact that the
described testimony offered by Respondent was pure hear-
say and is otherwise suspect,16 I conclude Respondent's de-
fense is without merit, as the record clearly reveals Rodri-
guez was justified in believing upon receipt of the letter that
Respondent rather than the Union was removing him from
his position as union steward. Indeed, he voiced this opin-
ion to Weil and Goldberg immediately after he received the
letter. While one would expect that Goldberg would have
then explained that he had discussed the situation with the
Union before the letter was prepared, he said nothing when
confronted by Rodriguez. Similarly, Weil failed to explain
the reason the letter was prepared and limited his comment
to an inquiry as to whether Rodriguez was threatening him
when the latter observed the employees were angry over
Cottina's discharge and would be angry when they found
out about the letter. I sum, I find that Respondent unilater-
ally sought to oust Rodriguez from his union steward posi-
tion by delivering the March 17 letter to him and that, by
such action, Respondent violated Section 8(a)(I) of the Act
as alleged."
B. The Alleged 8(a)(3) Violations
The Castro discharge
I find that the General Counsel has offered insufficient
evidence to prove that Respondent discharged George Cas-
tro for discriminatory reasons.
It is undisputed that Respondent knew when it hired
Castro that he was on layoff from U.P.S. Similarly, Weil
made it clear at the time that Castro was hired that the job
was temporary and would last only until Foreman Cascante
returned to work after his trip to Chile.
The record reveals that shortly after Cascante returned to
work, Weil instructed him to terminate Castro. The only
significant evidence supportive of the General Counsel's po-
sition is that evidence which reveals that Cascante, upon
receiving Weil's instruction to terminate Castro, informed
Rodriguez he felt the Company was terminating Castro to
get even with Rodriguez because of his union activities. I
refrain from placing undue emphasis upon Cascante's re-
mark, as it is clear that Weil rather than Cascante ordered
the termination. Moreover, Weil's decision was perfectly
consistent with his stated intention at the time Castro was
hired-that the job would be temporary and would expire
when Cascante returned to work.
The General Counsel contends that Weil's refusal to
transfer Castro to another department at Rodriguez' re-
16 Gobbo was not called as a witness, and Goldberg's testimony is suspect,
as: (I) Union Representative De Carlo had designated Rodriguez as the
official steward, (2) no evidence was offered to show the Union was aware of
Rodriguez' seniority status, and (3) the letter covered matters which were not
shown to have been discussed between Goldberg and Gobbo, i.e., the
Union's bylaw provisions regarding employees' eligibility for steward posi-
tions,
17 The General Counsel claims Respondent violated Sec. 8(aXI) of the Act
by unlawfully restricting the actions of union stewards during working time.
Apart from the fact that such alleged violation was not included in the
complaint, I refrain from finding a violation, as the subsisting contract per-
mits Respondent to regulate the activities of union stewards during working
time. See Joint Exh. , art. IV, sec. 2.
quest and the fact that it assigned a private detective to the
receiving department approximately 1-1/2 weeks after Cas-
tro was terminated reveal a discriminatory motive for the
discharge. I cannot agree. With regard to the refusal to
transfer, Rodriguez testified that Respondent opened two
new departments in late February and hired some 25 new
employees to staff them. From this I am urged to infer that
Respondent could have used Castro in one of the new de-
partments. The difficulty with this contention is that Re-
spondent denied that it hired 25 new employees or opened
any new departments at the time in question. Respondent's
books and records might have conceivably shown the true
state of affairs during the period in question, but the best
evidence was not placed in the record by either party. With
the record in such a posture, I am unwilling to credit Rod-
riguez' sweeping assertion that 25 new employees were
hired in two new departments in late February. Similarly,
General Counsel's proof that shortly after Castro's dis-
charge Respondent assigned one Lopez Chavez to work
which Castro had previously performed was effectively neu-
tralized by Respondent's testimony, which reveals it had
theft problems and that Chavez was a licensed detective
who was assigned to the receiving department to ascertain
who was doing the stealing. I have no reason to doubt that
Chavez is a detective as claimed, and if this is the case, his
assignment to the receiving department for the reason given
by Respondent negates General Counsel's contention that
the workload in the receiving department at the time of
Castro's termination dictated his retention rather than his
discharge.
Consideration of the facts and circumstances set forth
above leads me to conclude, and find, that General Counsel
has failed to prove by a preponderance of the evidence that
George Castro was discharged by Respondent in violation
of Section 8(a)(3) of the Act as alleged. Accordingly, I rec-
ommend that this complaint allegation be dismissed.
The Rodriguez discharge
Respondent claims Rodriguez admitted on the day of his
discharge that he was calling a strike, and the General
Counsel claims he was actually calling a short meeting to
show employees the March 17 letter. In point of fact, he
was attempting to cause employees, some of whom were
scheduled to return to work at noon, to meet with him in
Respondent's parking lot so they could decide what, if any,
action they would take to protest Respondent's attempt to
remove Rodriguez from the union steward position. Apart
from the semantics, Respondent defends the discharge by
claiming it was lawful, as the subsisting collective-bargain-
ing agreement contains a broad no-strike clause, and Rodri-
guez violated the contractual provision." As I have found
that Respondent engaged in an unfair labor practice when
it delivered the March 17 letter to Rodriguez, the real issue
raised by the discharge is whether the instant no-strike
clause precluded employees from protesting Respondent's
unfair labor practice by striking.
" See art. XIII, Jt. Exh. 1.
570
LUSTRELON, INCORPORATED
In Mastro Plastic Corp. and French-American Reeds Mfg.
Co., Inc. v. N.L.R.B., 350 U.S. 270 (1956), the Supreme
Court refused to imply a waiver of the right to strike against
the unfair labor practices there involved from a no-strike
clause contained in a collective-bargaining agreement. In
Arlan's Department Store of Michigan, Inc., 133 NLRB 802
(1961), the Board rejected a broad reading of the Court's
decision which would have excluded all unfair labor prac-
tice strikes from the operation of no-strike clauses and con-
cluded that "only strikes in protest against serious unfair
labor practices should be held immune from general no-
strike clauses." (Footnote omitted.) The test to be applied
in determining seriousness was experience, good sense, and
good judgment.
Viewing the facts in the instant case, I conclude and find
that Respondent engaged in a serious unfair labor practice
when it sought by the letter dated March 17 to remove
Rodriguez from his union steward position. The evidence in
this record reveals quite clearly that the Union exhibited
little, if any, interest in Respondent's employees. Thus,
when Rodriguez informed De Carlo of Respondent's
March 17 letter and of the fact that the employees were
discussing a strike, the Union did nothing. In this context, I
find that Respondent's removal of Rodriguez from the
union steward position left the employees with virtually no
meaningful union representation. I infer that Respondent
intended such a result, and I conclude that its attempt to
deprive employees of any meaningful representation consti-
tuted a serious unfair labor practice within the meaning of
that term as used in Arlan's, surpa. In sum, I find that Rod-
riguez engaged in protected activity when he sought em-
ployee support to protest Respondent's unfair labor prac-
tice on March 22, and I conclude the no-strike clause was
not operable in the situation. Accordingly. I find that Re-
spondent discharged Rodriguez in violation of Section
8(a)(1) and (3) of the Act on March 22, 1977, as alleged in
the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section 111,
above, occurring in connection with the operations de-
scribed in section 1, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 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 violated Section 8(a)(1) of the Act by
threatening union steward Rodriguez with reprisal because
he pressed employee grievances and by attempting to re-
move him from his union steward position.
4. Respondent violated Section 8(a)(l) and (3) of the Act
by discharging Francisco Rodriguez because of his union
activities.
5. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. Respondent has not committed any other unfair labor
practices alleged in the complaint.
REMEDY
In order to remedy the unfair labor practices found
herein, my recommended Order will require Respondent to
cease and desist therefrom, and, in view of the serious na-
ture of the unfair labor practices, which effectively deprived
employees of union representation, the Order will require
Respondent to cease and desist from infringing upon the
Section 7 rights of employees in any other manner.
Respondent will be required to offer Francisco Rodriguez
reinstatement to his former position of employment or, if
that position no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, dismissing, if necessary, anyone who may
have been hired to perform the work which he had been
performing. Additionally, Respondent will be ordered to
make this employee whole for any loss of earnings he may
have suffered by reason of his unlawful termination. with
backpay to be computed on a quarterly basis, less his net
earnings during such period, with backpay and interest
thereon to be computed in the manner prescribed in F W
Woolworth Compan)', 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977).'9
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER'
Respondent, Lustrelon, Incorporated, Edgewater, New
Jersey, its officers, agents, representatives, successors, and
assigns, shall:
I. Cease and desist from:
(a) Threatening employees with reprisal because they
present or press employee grievances pursuant to a collec-
tive-bargaining agreement.
(b) Attempting to remove employees from the union
steward position.
(c) Discharging employees or otherwise discriminating
against any employee for the purpose of discouraging em-
ployees from engaging in union activity or other concerted
activity for their mutual aid or protection.
1' See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The
General Counsel seeks interest on backpay due of 9 percent per annum in
this case. In view of the Board's recent revision of the interest rate in Florida
Steel Corporation, supra, the request is denied. in agreement with the Board.
I find interest at 7 percent per annum is adequate.
20 In the event no exceptions are filed as provided by Sec. 104.46 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.
571
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization; to form, join, or assist labor organizations; to
bargain collectively through representatives of their own
choosing; and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protec-
tion as guaranteed in Section 7 of the Act, or to refrain
from any or all such activities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Francisco Rodriguez immediate and full rein-
statement to his former position or, if such position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights previously enjoyed,
and make him whole for any loss of pay due to the violation
against him in accordance with the manner set forth in 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, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its place of business in Edgewater, New Jer-
sey, copies of the attached notice marked "Appendix."2 '
Copies of said notice, on forms provided by the Regional
Director for Region 22, after being duly signed by Respon-
dent, shall be posted by it immediately upon receipt thereof
and maintained for a period of 60 consecutive days there-
after, in conspicuous places, including all places where no-
tices 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.
(d) Notify the Regional Director for Region 22, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
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 Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended, gives
all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective-bargaining or other
mutual aid or protection
To refrain from any or all such activities except to
the extent that the employees' bargaining represent-
ative and employer have a collective-bargaining
agreement which imposes a lawful requirement that
employees become union members.
In recognition of these rights, we hereby notify our
employees that:
WE WILL NOT threaten employees with reprisal be-
cause they present and press employee grievances pur-
suant to a collective-bargaining agreement.
WE WILL NOT attempt to remove employees from
the union steward position.
WE WILL NOT discharge employees or otherwise dis-
criminate against them to discourage employees from
engaging in union activity or other concerted activity
for their mutual aid or protection.
WE WILL NOT in any manner interfere with, restrain,
or coerce you in the exercise of your rights under the
National Labor Relations Act as set forth above.
WE WILL offer Francisco Rodriguez immediate and
full reinstatement to his former job or, if such job no
longer exists, to a substantially equivalent job, without
prejudice to his seniority or other rights and privileges,
and WE WILL make him whole for any loss of earnings
he may have suffered as a result of the discrimination
against him.
LUSTRELON, INCORPORATED
572