Marvex Processing & Finishing Corp.

National Labor Relations Board - Board Decisions

Jun 6, 1977

229 N.L.R.B. 1285 (N.L.R.B. 1977)

MARVEX PROCESSING & FINISHING CORP.
Marvex Processing & Finishing Corp. and Local 819,
International Brotherhood of Teamsters, Chauff-
eurs, Warehousemen and Helpers of America.
Case 29-CA-4835
June 6, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On February 3, 1977, Administrative Law Judge
William F. Jacobs issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Marvex Process-
ing & Finishing Corp., Westbury, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
I The Respondent has excepted to certain credibility findings made by
the Administrative 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 Dr), Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3 1951). we have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge: This
case was heard at Brooklyn, New York, on September 7
and 8, 1976.' The charge was filed on January 23, and the
complaint was issued on April 30. The primary issues
presented by the case concern whether or not Respondent
violated Section 8(a)(3) and (1) of the Act by discriminato-
rily discharging Mario Diaz and Luis Imbert and by
refusing to reinstate these employees, and whether Respon-
dent violated Section 8(a)(1) by threatening and interrogat-
ing its employees in violation of the National Labor
Relations Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a New York corporation engaged at
Westburg, New York, in the business of performing
drycleaning and finishing of polyester fabric and related
services. During the past year, Respondent performed
services valued in excess of $50,000, of which services
valued in excess of $50,000 were performed in and for
various enterprises located in States other than the State of
New York. The Respondent admits, and I conclude, that it
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE LABOR OROANIZATION INVOLVED
Evidence adduced at the hearing, including exhibits
offered by General Counsel and testimony of witnesses,
indicate that Local 819, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is an organization which exists for the purpose of
dealing with employers concerning grievances, labor
disputes, wages, rates of pay, hours of employment, and
conditions of work, and is therefore a labor organization
within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. Background
In August 1974, the Union undertook an organizational
campaign at Respondent's place of business. At this time
the key inside man doing the organizing on behalf of the
Union was Mario Diaz. He acted as a go-between for the
Union and the Spanish-speaking employees and translated
in Spanish whatever the union representative had to tell the
employees. Following the organizational campaign, the
National Labor Relations Board conducted an election
which the Union lost 27 to 3. Diaz, besides being the union
representative's translator, also distributed union represen-
tation cards and was the observer for the Union during the
election. It is undisputed that Respondent was aware of
Diaz' union activity during the 1974 campaign.
B. The 1976 Campaign
In December 1975, Respondent suffered certain financial
setbacks and as a result required its employees to take a 10-
percent wage cut. Employees Mario Diaz and Luis Imbert
discussed the matter and determined that because of the
wage cut the time was right for bringing in a union. They
felt that the Company should not be cutting the wages of
the employees, in particular, that close to Christmas. As a
result of the conversation between Diaz and Imbert, Diaz
contacted the Union, probably during the last week in
t All dates are in 1976 unless otherwise stated.
229 NLRB No. 188
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
December or the first few days in January. He spoke with
organizer Robert Scalza and told him that, because the
employer had cut the wages of the employees 10 percent,
everybody in the plant wanted a union. Scalza agreed to
visit the plant within the next few days and subsequently
did so. At the plant, Scalza handed out leaflets with union
representation cards affixed to them and spoke to several
of the employees. He also gave Diaz several union cards for
distribution. This occurred in front of the factory. That
evening Scalza called Diaz by phone and scheduled a
meeting with him and other employees to take place at the
Howard Johnson Restaurant at 4 p.m. on the afternoon of
January 9. After receiving the extra union cards from
Scalza, Diaz spoke to the other employees in the plant and
requested them to sign the cards for representation by the
Union. He also informed the other employees of the
meeting scheduled at Howard Johnson's on Jaunuary 9. In
all, Diaz spoke to five or six other employees of the
Respondent at the plant. Imbert agreed with Diaz that he
also would speak to the rest of the employees at the plant
about the Union in order to help organize. Imbert and
Diaz went around the plant together speaking to employees
in the presence of each other. On January 9 both Imbert
and Diaz went around to other employees to remind them
of the meeting to take place at Howard Johnson's that
afternoon. All company witnesses called to testifly denied
any knowledge of any union activity which took place on
January 9 or prior thereto.
Diaz spoke to a large number of employees himself that
day in addition to the several that he spoke with together
with Imbert. When Diaz punched out that afternoon, the
plant manager, Dieter Kannapin, called him into his office.
Kannapin at that point informed Diaz that he had to lay
him off because there was no business and that he would
call him back in 2 or 3 weeks. Diaz did not believe what
Kannapin said and asked him what the true reason for his
firing might be. Kannapin repeated that it was because the
Respondent did not have enough business, and again
promised to call Diaz back in I or 2 weeks. No other
employees were laid off that day, nor had Diaz received
any prior notice of the Respondent's intention of laying
him off.
After leaving work, Diaz went to the Howard Johnson
Restaurant to meet with Scalza and other employees to
participate in the union meeting. At the meeting Scalza
explained to the employees the benefits of unionization,
and Imbert and Diaz and several other employees all
signed union cards. Approximately seven employees
attended this meeting. During the meeting Diaz advised
Scalza that he had been fired that afternoon and Scalza
replied that he should not worry because the Union would
try to get his job back for him. Inasmuch, however, as Diaz
was no longer employed by Respondent it was decided that
there would have to be another employee to help with the
organizing inside the plant. It was determined that Luis
Imbert would take Diaz' place and would continue the
organizing. To this end Imbert was given additional union
cards to distribute among the other employees at the
factory.
The following Sunday, January I , Imbert reported to
work. At that time his supervisor, Barney Ferrante, called
him into his office. There were two other employees
present. One of them was identified by Imbert as a
mechanic named Lenny Hockmann. Ferrante opened the
conversation by stating that he had heard that someone
had brought union authorization cards into the factory.
Imbert explained that he had been given cards by Diaz,
whereupon Ferrante inquired of Imbert whether or not he
had signed a union card. Imbert denied signing a card.
Ferrante then stated in a strong tone, as Imbert testified,
that he would not permit the Union to get into the factory.
The conversation ended at this point and Imbert returned
to work. Thereafter, Imbert did not attempt to speak to any
of the other employees about signing union cards.
Ferrante denied that this conversation ever took place.
He also denied working on Sunday, January II1, or any
other Sunday in January. He further denied ever threaten-
ing any knitter because of union activity and finally denied
that he was aware at that time that there was any union
activity going on at the plant. Respondent, in explanation
of Ferrante's absence from the plant on Sunday, January
11, explained through various witnesses that Ferrante had
been working on Sundays through December 1975, and
that in January 1976 Sundays were worked in turns by two
other employees in Ferrante's place; namely, Gerald St.
Marie and Lenny Hockmann. Ferrante denied ever visiting
the plant on his day off. St. Marie was called as a witness
by the Employer and testified that he had begun working
at Marvex at the end of December or the beginning of
January 1976. He worked as a mechanic and also as plant
supervisor. St. Marie testified that Barney Ferrante was not
working on Sunday, January 11, and further testified that
he knew this to be a fact because Ferrante worked on
Sundays in December whereas St. Marie worked every
other Sunday in January. St. Marie claimed to be in the
plant all day January 11, and testified that he did not see
Ferrante at all that day. The Company also called Joel
Baker, another company official, who testified similarly
that Hockmann and St. Marie split Sunday work in
January and that Ferrante was off Sundays in January.
With regard to the events of Sunday, January II, I am
crediting Imbert as to the conversation which he stated
occurred between Ferrante and himself. I am doing so on
the basis of Imbert's straightforward and convincing
testimony. Likewise, I am discrediting Ferrante because I
feel that in testifying he was attempting more to answer
Margolin's questions in such a manner as to satisfy
Margolin rather than in any apparent attempt to testify to
the truth of the matter. Moreover, testimony of various
company witnesses was to the effect that St. Marie and
Hockmann split Sunday work so that only one of them was
there at a time. Therefore, I cannot give any credence to St.
Marie's testimony that Ferrante was not there that day
because Imbert's credited testimony was to the effect that
Hockmann was present and, if both St. Marie and Imbert
are to be believed, it is quite understandable that if
Hockmann was present, then St. Marie was not correct in
his testimony that he was working on January I . Clearly,
if Hockmann was on duty and St. Marie was not on duty at
the same time Hockmann was, then the date that St. Marie
had in mind was not January 11, for Hockmann was on
duty that day. Hockmann was not called to testify to the
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MARVEX PROCESSING & FINISHING CORP.
presence or absence of Ferrante on January I 1, in order to
dispute the testimony of Imbert.
Inasmuch as I have credited Imbert to the effect that
Ferrante asked him whether or not he had signed a card
and who brought the cards to the factory, I find that such a
discussion did take place as Imbert described, and the
questioning of Imbert by Ferrante amounted to violations
of Section 8(a)(1) of the Act.
The following day, Monday, January 12, when employee
Ricardo Echeverry reported to work, he was questioned by
Ferrante as to whether someone was trying to bring in a
union. Echeverry replied that he did not know; whereupon
Ferrante then asked Echeverry if he had signed a union
card. To this question Echeverry replied in the negative.
Echeverry advised Ferrante that he did not know who was
bringing in the Union. After Ferrante asked Echeverry
about who was bringing in the Union and whether or not
he signed a card, he made the statement that if he found
out who was going to bring in the Union, he was going to
fire him and would break his legs. There was, according to
Echeverry, no other employees present when this statement
was made to him by Ferrante. Ferrante denied that he
threatened anyone, in particular Echeverry. But with
regard to this conversation, I credit Echeverry over
Ferrante and find that the questioning of Echeverry
amounted to interrogation within the meaning of Section
8(a)(l) of the Act, and that the threats involved in the
conversation were likewise violative.
Meanwhile, as noted above, it was decided that, in the
absence of Diaz, Imbert would continue the organizing
campaign at the plant. Cards were supplied to Imbert for
distribution and Diaz advised Imbert to distribute these
cards among the employees while he, Diaz, would help
Imbert in the organizing campaign by talking to employees
concerning the Union during their off-duty hours outside
the plant.
On January 16, Imbert was discharged. When Imbert
reported for work on the morning of the 16th, Ferrante
called him into his office and closed the door. Ferrante
stated to Imbert at this time simply, "There is no more
work for you because a bundle came out with a needle line
in it." Ferrante was referring to a bundle of goods which
had come off Imbert's machine with a needle line or run in
it which occurred because Imbert apparently had failed,
according to Ferrante, to replace a broken needle.
According to Imbert, Ferrante did not offer to show Imbert
the cloth that was supposedly ruined. According to
Ferrante, however, when he called Imbert into his office he
showed him both the inspection sheets which reported the
needle line in goods and also showed him the roles of
materials, telling him that he could not have him working
there any longer because of the poor workmanship. Also,
according to Ferrante, he told Imbert that he had been
warned once before about his poor workmanship and that
now he would have to let him go. Margolin testified that
although he was not directly responsible for the termina-
tion of Imbert, he was indirectly responsible because he
had emphasized that the quality of the work had to be A-I.
C. The Employment Record of Mario Diaz
Diaz was hired by Marvex on August 8, 1973, shortly
after the plant first opened. For approximately a year he
worked on the seaming machine, then transferred to the
inspection machine where he worked for a few months. He
then transferred once again to the frame machine where he
worked also for a few months. For a period of 6 or 7
months during his employment at Respondent's plant,
Diaz worked as a leadman with three other employees to
oversee. He had been assigned these duties by the Plant
Manager Kannapin. At the time that Diaz left the
employment of Respondent he was working on the frame
machine by himself or with the help of one other employee.
As late as December 1975, according to Diaz, his
superior, Fred Margolin, complimented him for his work
performance. At that time Diaz asked Kannapin for a raise
and Kannapin agreed to give him the raise, one of several
earned by Diaz. But the raise was not given and shortly
thereafter all employees received the cut in wages described
above. Diaz, in his testimony, described himself generally
as a good employee who was well appreciated by the
Employer. The undisputed evidence indicates that Diaz
received a greater number of wage increases than any other
employee at Respondent's plant, thus supporting Diaz'
testimony. Plant Manager Kannapin, called upon to
explain why Diaz was receiving a higher wage than other
employees, explained that Diaz had received a greater
number of wage increases simply because he asked for
them, and not because he was really worth the difference in
wages.
It is undisputed that, among the 15 to 20 rank-and-file
employees employed by Respondent at the time of Diaz'
termination, Diaz was the most senior or close to the most
senior in service. Various company witnesses testified that
Respondent was not bound to follow seniority in terms of
layoff and rehire because the Company did not have such a
system to work by and there was no union present at the
plant to enforce any contract containing seniority terms.
Nevertheless, the testimony of several of the Company's
management witnesses was to the effect that a new
employee would be laid off before older employees if there
were no longer a need for everyone to be continued to be
employed. Moreover, exhibits offered by the Company
showing the system in use at the time of Diaz' layoff
indicated that the Company generally did follow seniority
and in the job classification and department worked in by
Diaz, there were no other exceptions to the close following
of seniority with regard to layoffs, Diaz being the only
exception. More particularly, as testified to by Personnel
Manager De Pasquale, all of the individuals who had
worked in Diaz' classification and who had been laid off
before Diaz was terminated had less seniority than did
Diaz. At the time of Diaz' termination there still remained
in the employ of the Respondent several employees in the
same job classification who had been working for the
Employer a shorter period of time than Diaz. To explain
this apparent inconsistency Plant Manager Kannapin
explained that it was the Company's procedure when two
employees in the same classification performed the same
quality of work, the one with greater seniority would be
kept in case of the need for layoff. If, however, there were
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two employees whose quality of work were unequal,
consideration would then be given to terminating the older
employee in favor of a younger employee who was the
better worker.
In order to provide a full record as to how this system
worked in the past, General Counsel subpenaed the
Company's records showing the dates of hire of the various
individuals employed by the Company together with the
dates of their termination if any. The subpena was served 9
or 10 days prior to the hearing. Nevertheless, the Company
failed to produce the subpenaed records, Margolin explain-
ing that he did not know whether or not the Company still
had such records. General Counsel thereupon requested
that an inference be drawn to the effect that the records if
produced would indicate, in accordance with the testimony
of company witnesses, that seniority prior to the date of
Diaz' discharge was followed by Respondent. I will, in
accordance with General Counsel's request, draw such an
inference. Moreover, inasmuch as the Company took the
position that it did not always follow seniority when laying
off employees if the employees were not producing work of
equal quality, and the production of such records could
possibly show this position to be well founded, and the
Company failed to produce such records under subpena, I
am willing to infer that the production of such records
would reflect adversely upon Respondent's position.
American Service Corp. and its wholly owned subsidiary
Southern Linen Supply & Laundry Co., Inc., 227 NLRB 13
(1976). Despite Respondent's failure to produce supporting
records for its position, it nevertheless indicated that there
were three employees still employed by Respondent at the
time of Diaz' termination who were classified in the same
job description as Diaz. These employees were Luis
Pineda, Luis Andrade,2 and Sergio Newson. According to
the testimony of various management witnesses, these
employees were kept because they were better performers
than was Diaz.
Various management witnesses testified to a number of
reasons why Pineda and Andrade were retained rather
than Diaz despite the fact that Diaz had more seniority and
it was the usual company policy to follow the seniority
system with regard to layoffs. Generally speaking, these
witnesses testified that both Pineda and Andrade were
more dependable than Diaz. But with regard to the
machine upon which all three ordinarily worked, it should
be noted that Diaz was placed in charge of other employees
to oversee their work on this machine whereas neither
Pineda nor Andrade were ever honored with the position of
leadman. Kannapin's explanation as to why Diaz was
made a leadman whereas Andrade and Pineda were not,
was that the latter two were needed in other places where
they would be much more valuable to him. On cross-
examination, Kannapin testified, however, that Diaz had
been used in a number of other places throughout the plant
as had Andrade and Pineda when he first began working at
the plant. With regard to Kannapin's testimony on this
matter, I reject his testimony as incredible and find that
Diaz' work on the centerframe machine was regarded as
2 A stipulation was arrived at by the parties to the effect that although
employee Andrade was orginally hired on or about August 1, 1973, before
Diaz, he quit his job and was absent from the plant for a period of
superior to Andrade's and Pineda's and that the fact that
he was instructing other employees on its use proves this
point.
Other reasons put forth by Respondent's witnesses to
support their contention that Diaz was not as dependable
as Andrade and Pineda concern the number of times that
Diaz was absent, his refusal to work on Saturdays or to
work late in the evenings, his inability to work on several
machines that other employees were able to work on, the
fact that others could drive both a truck and a station
wagon, the fact that the others could make out better
inspection reports, and, finally, the fact that Pineda could
perform inventory work whereas Diaz was unable to do
this work. With regard to Respondent's contention that
Diaz was less dependable than Andrade and Pineda
because of his large number of absences, Respondent
placed in the record certain timecards dating from July 13,
1975, to January 3, 1976, which showed that Diaz was
absent eight times during that period. After receipt of these
documents, General Counsel requested that Respondent
place in the record the timecards of Pineda and Andrade in
order to show that they were more dependable than Diaz
as contended by Respondent. Respondent then refused to
comply with this request. I then pointed out to Respondent
that a greater weight would be given to its contention if in
fact it would make the company records available showing
that Diaz was in fact absent a greater number of days than
were Pineda and Andrade. Despite this caveat, Respondent
still declined to make the supporting documents available.
In light of Respondent's refusal to support its contention
with available documentation, I will draw the inference
that if the documents were placed in the record they would
supply evidence adverse to Respondent's position. I
therefore conclude that the Respondent's contention that
Andrade and Pineda were more dependable than Diaz
because of Diaz' absentee record is without foundation.
Similarly, Kannapin's contention that Diaz was less
dependable because he had been asked and had refused to
work Saturdays and stay late at night on occasions, could
easily be supported by providing the timecards for
Saturdays and evenings of the three for comparison to
show that the others did work on Saturdays and late
whereas Diaz did not. Respondent's failure to produce
these records indicates that the records would not support
its position. I am willing to draw that inference. American
Service Corp., supra. Furthermore, Diaz' credited testimony
that he was willing to work at any time, day or night, and
to stay late when requested to do so is far more convincing
than Kannapin's charge that he was unwilling to do so. I
note that Diaz, after mentioning that he never refused to
work Saturdays, later recanted and stated that upon
occasion he may have done so. I consider Diaz' testimony
with regard to this matter as an attempt on his part to give
truthful and forthright answers to the questions posed on
cross-examination. In light of the fact that the Employer
refused to put into evidence timecards which would show
how many Saturdays each of the three employees worked, I
do not feel that the admission by Diaz that he did not
approximately 3 weeks and was then rehired after Diaz' hiring on August 13,
1973.
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MARVEX PROCESSING & FINISHING CORP.
always work when requested to do so was particularly
damaging to his case.
Plant Manager Kannapin was called upon by Respon-
dent to testify with regard to the ability of Pineda and
Andrade to operate a certain number of machines that
Diaz purportedly was unable to operate. In particular,
Kannapin testified that Pineda and Andrade were both
capable of operating the back winding machine whereas
Diaz was unable to operate this particular machine.
Kannapin also testified that Pineda could operate the
Remo machine and the drycleaning machine, the latter
with some supervision from Kannapin. He testified that
Diaz could not operate either of these two machines. Diaz
testified that of the eight machines in the plant he was
capable of operating six. He also testified that he could do
a number of jobs that Pineda was not capable of doing and
that Pineda could do no jobs that he, Diaz, was unable to
do. Where the testimony of Kannapin and Diaz is at odds,
I credit Diaz and find that he was at least as capable as the
other two individuals mentioned of doing the jobs that
were demanded of all three. I note that management called
neither Pineda nor Andrade to testify. I also note that, at
the time of Diaz' termination, Andrade and Pineda were
engaged in doing the same work that Diaz had been doing;
namely, working on the framing machine. Inasmuch as I
have found that Diaz was probably superior to Andrade
and Pineda in this work because he had been made a
leadman, I consequently find that the ability to do work
other than framing machine work is and was of secondary
importance to Respondent. Thus, I conclude that Respon-
dent was trying to pad its case by drawing attention to the
various and sundry other jobs that Andrade, Pineda, and
Diaz might have been doing on other occasions.
With regard to Respondent's claim that Andrade was
more valuable because he could drive a truck and had been
driving the Company's station wagon, the record is devoid
of any evidence that Respondent looked into the possibility
that perhaps Diaz also was capable of driving, except that
Kannapin admitted that he knew that Diaz was in the habit
of driving five or six workers to the plant every day. Thus,
inasmuch as Respondent was aware that Diaz also could
drive as well as Andrade and never checked into whether
or not Diaz was capable of driving a truck, I find that this
argument was placed in the record by Respondent purely
for the purpose of makeweight and had nothing at all to do
with any consideration as to whether on not Diaz would be
terminated rather than Andrade. As to whether or not
Pineda could drive, the record is silent.
Kannapin also testified that one of the reasons for
choosing to keep Andrade rather than Diaz was the fact
that he made out better inspection reports. When I asked
whether or not Respondent intended to put in the various
inspection reports of Diaz and of Andrade for compari-
son's sake, Margolin, Respondent's representative, replied
that he would not do so. I therefore conclude that if such
inspection reports were placed into the record for the
purpose of comparison, Respondent's position would not
be supported. I therefore find that Respondent's argument
with regard to this matter is without substance. According
to Kannapin, another reason why Diaz was terminated
rather than Pineda was that Pineda was capable of
handling inventory at Marvex where Diaz was not.
Kannapin testified that he asked Joel Baker, the personnel
manager, if it would be all right to lay off Pineda.
According to Kannapin, as supported by the testimony of
Baker, Baker replied in the negative, explaining that he
needed Pineda to work in inventory. In Baker's testimony,
he stated that he did not want Pineda laid off because he
had been training Pineda for 8 or 9 months to do the
inventory work. Baker explained that he had spent these
several months in teaching Pineda how to work with
inventory, including how to pick the goods out that had
been ordered, and by the time that Respondent was ready
to cut some of the personnel Pineda was well trained in the
inventory area of work. He therefore did not wish to lose
Pineda at this point in time. When Diaz was called on
cross-examination, he described Pineda's work as picking
out goods that were to be shipped as management
requested, and further testified that he was quite capable of
performing this task himself. I credit the testimony of Diaz.
Kannapin, in testifying as to why Diaz was terminated
rather than other employees capable of doing his job,
testified that if a situation should arise that there were two
employees who did the same quality of work but one had a
lesser rate of pay than the other, he would also consider
that factor in deciding which one to keep and would keep
the employee with the smaller wage rate. Presumably this
was to explain why Diaz was terminated after having
received a number of raises and at a time when he was
receiving a wage rate in excess of that received by Andrade
and Pineda. As a matter of fact, Diaz was receiving $3.28
per hour at the time of his termination whereas Andrade
was receiving $2.90 and Pineda $2.95. Prior to the 10-
percent wage reduction in December 1975, Diaz was
receiving $3.75 per hour. I find Kannapin's testimony
difficult to believe. Although company records would
certainly reflect which employees were terminated at what
time during the extended layoff period in late 1975 through
early 1976, none of these records were placed into evidence
in order to show that the highest paid individuals were let
go in favor of keeping those individuals who were receiving
a lesser sum as wages. On the contrary, it would appear
that Respondent, except for Diaz' case, followed seniority
as the basis for its terminations prior to January 9.
Moreover, the record reveals that as of December a new
employee named Sergio Newson was employed doing the
same job as Diaz. As a new employee one must assume
that he was receiving a lesser wage than Diaz. Nevertheless,
Newson was terminated in December 1975 while Diaz was
kept. If Respondent intended to keep the lesser paid
individuals and terminate the higher paid individuals doing
the same quality of work, why was it, one would ask, that
in December 1975 Respondent terminated Newson and
kept Diaz, when only 10 days later, after Diaz' union
activity, it decided to terminate Diaz, and shortly thereafter
rehired Newson? The same considerations for keeping
Diaz over Newson or vice versa were present in December
as in January. I find that Respondent has used the
argument of getting rid of higher paid individuals doing the
same quality work while keeping lesser paid individuals as
a rationalization utilized for the purposes of the instant
case only. I find also that this particular contention of
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent is unsupported by the rest of the evidence
contained in the record. Moreover, it should be noted that
at no time did Respondent attempt to show that Newson
was a better employee than was Diaz, and if the two
employees were of equal quality, there is no indication that
Respondent ever requested that Diaz remain as an
employee of Respondent to continue to work for a lesser
wage.
According to the testimony of management witnesses no
employees were recalled to work in the frame department
after Diaz' termination with the single exception of Sergio
Newson, an employee who was trained on that job by Diaz,
himself. Upon being recalled, Newson was assigned to the
frame that Diaz had been working on. According to
Personnel Manager DePasquale, Newson was recalled to
do Diaz' job because he was readily available. Between the
time that Diaz was terminated and the rehiring of Newson,
various employees worked from time to time on Diaz'
machine, including certain members of management,
though none were assigned permanently. This of course,
indicates that an additional employee was needed to do the
work that had been done by Diaz up to the time of his
discharge. Prior to the time of Diaz' discharge, a foreman
did not usually work on the machines except in emergen-
cies and sometimes on Saturdays. Apparently recognizing
the shortage of labor, Respondent, according to the
testimony of Kannapin, eventually tried, through one of
the office girls, to get in touch with Diaz to ask him to
return to work. Kannapin testified that the office tried to
contact Diaz by telephone without success, and that Diaz
never returned any of the calls made. Kannapin stated that,
although he never personally attempted to call Diaz by
phone, he did make arrangements for the clerical help to
call Diaz. He also testified that he personally requested
another employee, Sergio Rodriguez, to contact Diaz for
the purpose of having him return to work. Kannapin
testified that he never heard from Diaz. According to
Kannapin, during the week of January 14, while he was
trying to contact Diaz, Sergio Newson visited the plant and
asked if he could return to work. Kannapin testified that he
told Newson at this point that, although business was very
slow, he might have a job for him, but only on a day-to-day
basis. That is, if there were work available, he could work,
but, if not, there would be nothing for that particular day
and Newson would be sent home. Newson agreed to take
the job under these conditions and he was thereupon
rehired and put to work on the machines that Diaz had
previously been operating.
Diaz testified that he was never called back to work at
Marvex after being laid off. He testified that after January
9 he saw supervisors from the plant on a daily basis,
including Sergio Rodriguez and another supervisor named
Buckley. Neither Buckley nor Rodriguez ever told Diaz
that there was a job waiting for him at Marvex. His contact
with Rodriguez was of special significance inasmuch as
Diaz had been told at the time of his termination that, if
there were work available for him in the future, Rodriguez
would be the one to contact him to advise him of the
availability of such work. Diaz also attempted to contact
the plant by phone to determine whether or not there were
jobs available but was told by the office clerical staff that
there were none.
With regard to the question of whether or not Respon-
dent attempted to recall Diaz, I find that no such recall was
attempted. Where the testimony of Kannapin and other
management personnel is contrary to that of Diaz, I credit
Diaz, not only because Diaz struck me as a more credible
and candid witness but because Respondent did not call as
a witness either Rodriguez or the unnamed clerical to
support its position that they were assigned to contact Diaz
to advise him that a job was available.
D. Employment of Luis Imbert
Imbert was hired by Marvex on September 8, 1975. He
was an experienced knitter at the time, having worked in
knitting mills as a knitter for the previous 7 years. As a
knitter at Marvex, it was Imbert's job to stand by the
several machines assigned to him and watch the goods as
these goods came off the machines. In particular, he was to
watch the goods to make certain that the goods were not
defective. If the goods appeared to be coming off the
machine with knitting lines (runs) or other defects in them,
the machine was to be shut down so that he or someone
else could replace the broken needle or make whatever
other repairs were necessary. When a bundle of goods was
finished, the knitter had to take the bundle off the machine,
weigh it, attach an identification tag to the bundle upon
which the weight of the goods was written as well as the
machine number, the number of the style of the goods and
finally the operator's initials.
Barney Ferrante was the supervisor of the knitting
department at Marvex. His responsibility was to see that
the knitter properly tended his machines, to make sure that
the quality of the goods that came off the machines was
good, and to see that the machinery was in good working
condition. He was also required to make sure that the
knitters were working at all times. As supervisor of the
knitting department, Ferrante did all of the hiring and
firing in the knitting department. During the period of time
here in question there were four knitters working on each
shift.
In connection with Ferrante's duty to make sure that the
material that came off the machines was in good condition,
he received daily inspection reports at the end of each
workday. These daily inspection reports were made out
each day by the inspector who had to inspect the material
turned out by the knitters to determine whether or not the
goods contained imperfections. If the inspector found
serious flaws in a roll of material he was expected to note
this fact on the daily inspection report and contact
Ferrante to advise him of this fact. He advised Ferrante of
the machine number, described the defect in the material
and advised Ferrante as to who the knitter was on that
particular machine. He also noted this information on
written reports. Ferrante, if he was not busy with other
duties, would ordinarily then inspect the damaged roll of
cloth, determine for himself what the problem was and
then fix the machine so that the defect would not be
repeated. Upon inspecting the cloth, either the inspector or
Ferrante could determine whether or not the defect was of
such a nature that it could be repaired, such as is the case
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MARVEX PROCESSING & FINISHING CORP.
with a dropped stitch, or not be repaired in which case it
either had to be destroyed or could perhaps be sold as
second grade merchandise, depending upon the seriousness
of the defect involved. Copies of the daily inspection
reports would go to various members of management
including Ferrante. To keep track of the various bundles of
goods, the daily inspection reports were kept as records as
well as the tags attached to the bundle by the knitter and
the information contained thereon.
Each knitter was usually assigned approximately six
machines to watch. As of January 12, Luis Imbert was
assigned machine numbers 9 through 14. Each of the
knitters, including Imbert, was assigned the same five or six
machines to watch every day. According to the testimony
of Ferrante, Imbert, when he first was employed by
Respondent, did a fair job as a knitter. As he became
accustomed to working at the plant, however, he became
increasingly lax. He became acquainted with his fellow
employees and as a result began wandering away from his
machines more then he had initially. For that reason,
according to Ferrante, Imbert's work, which was not too
bad at the beginning, became progressively worse. Ferrante
described Imbert's attitude as lackadaisical. Ferrante
testified that he warned Imbert a number of times about
the quality of his work and told him that he should not be
walking away from his machine to talk to other employees
but should start paying more attention to his machine and
to the goods coming off the machine. Several times,
according to Ferrante, he warned Imbert that, if there were
any more problems with his work, Respondent would have
to let him go. Ferrante testified on direct examination that
Imbert continued to wander away from his machine,
nevertheless, and did not improve. On cross-examination,
however, Ferrante testified that when he talked to Imbert
about staying close to his machine and watching the
machine more carefully and about such matters as dropped
stitches in the materials coming off his machine, he denied
warning Imbert that if he did not improve his work he
would be discharged. Ferrante's testimony concerning the
warnings given to Imbert prior to January 12 appears
therefore to be inconsistent.
Imbert testified that he could recall that about a month
or a month and a half prior to his discharge Ferrante called
his attention to the fact that there had been damage to
certain material because of a broken needle. He also
admitted to being warned by Ferrante about other defects
in goods coming off his machine and about not staying
close to his machine. Imbert could not, however, recall the
specific dates of these incidents, although he testified that
the occasions on which Ferrante criticized him for not
paying attention to his machine and causing material to
come off the machine with defects occurred two or three
times prior to January 12.
On January 12, according to Ferrante, it was brought to
his attention that a roll of cloth had a 50-yard run in it
caused by a broken needle. He traced this bolt of cloth to
the machine which was operated that day by Imbert. The
discovery was made about 5 or 6 o'clock that evening. The
following day when Imbert reported to work, the defect
was brought to his attention by Ferrante and, according to
Ferrante, he warned Imbert that if it ever occurred again
he would be discharged. Imbert replied that he would
attempt to do a better job in the future. Ferrante further
testified that broken needles will occur from time to time,
but that in Imbert's case the entire roll had a needle line in
it which meant that for half a shift, 4 hours of production,
the line was never caught by Imbert. This, Ferrante
characterized as negligence. The inspector who reportedly
filled out the inspection report concerning Imbert's roll of
damaged cloth was named Buckley. He was not called to
testify on behalf of Respondent. Ferrante also testified
that, when he advised Imbert that he had permitted a 50-
yard needle line in the cloth, he not only reprimanded
Imbert for his work, but showed him the cloth itself. At the
same time, according to Ferrante, he showed Imbert the
tag attached to the cloth and drew his attention to the fact
that his initial's were on the tag. When questioned about
where the tag was at the time of the hearing, Ferrante was
unable to state what happened to the tag. It was not
produced at the hearing. Ferrante suggested that the tag
might have been burned up at the time the plant was
destroyed by fire.
With regard to the reprimand incident which Ferrante
testified occurred on January 12, Imbert denied that any
such incident occurred. He also stated that he had never
been warned that he would be discharged because of
anything to do with his work prior to the actual day of his
discharge. He also testified that the last time that goods
had been damaged because of a broken needle was
discussed a month or a month and a half before his
dishcarge.
With regard to this incident, I once again credit Imbert
insofar as he testified that this incident, supposedly
occurring on January 12, never occurred. I do so on the
basis of the demeanor of Imbert which satisfied me that he
was telling the truth. As noted above, I have discredited
Ferrante whenever his testimony was contrary to that of
witnesses for the General Counsel. I further credit Imbert
because during the hearing Respondent's representative
stated that he would call Buckley to testify concerning the
reports produced to show that Imbert had caused the
needle line in the 50 yards of goods. Buckley, however,
never was called by Respondent to testify concerning his
alleged report to Ferrante. Moreover, I am not satisfied
with Ferrante's testimony that the tags containing Imbert's
initials which would tie him to the ruined cloth were
destroyed in the fire. If these tags ever did exist, I would
presume that they would have been saved as evidence, as
Ferrante testified they had been for a period of time, along
with the records which were placed in evidence by
Respondent. Since the records prepared by Buckley and
used by Ferrante as the alleged basis for terminating
Imbert had been kept separate for production at the
hearing, I believe that, if there had been tags that could
also support the Respondent's case, the tags would have
been kept along with the records for that purpose. Since no
tags were produced and since Buckley was not called to
testify concerning the records which he prepared, I find
Respondent's case seriously undermined and for that
reason along with my credibility findings outlined above, I
conclude that the incidents described by Ferrante, alleged-
ly occurring on January 12, never in fact occurred.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Ferrante, on January 14 Imbert permitted
another 50 yards of defective cloth with a needle line in it
to be produced on his machine. Ferrante testified that he
brought this fact to the attention of Imbert and, when
Imbert demanded to see the material, Ferrante testified he
showed him both the material and the tag which identified
the work as Imbert's. Imbert denied that on the day of his
discharge he was shown any proof of Respondent's
accusation. That is to say, Ferrante did not show him either
materials or the tag which would show that he had
produced defective goods. As noted above, according to
Imbert, he was only accused of having produced goods
with the needle line in it and was thereupon discharged.
Once again I credit the testimony of Imbert over the
testimony of Ferrante and find that the facts surrounding
the discharge of Imbert were as he described in his
testimony rather than as described by Ferrante.
A great deal of testimony was taken concerning the
seriousness of the loss of 40 or 50 yards of cloth because of
defects in the material, particularly needle lines, and the
frequency with which this type of problem occurred.
Ferrante testified that a needle line in material, unlike
small holes which occur from dropped stitches, cannot be
repaired by the mender. If the needle line occurs close to
the edge of the material, that portion can be cut away and
most of the material saved. If, however, the needle line runs
down the center of the material, that material must either
be destroyed or sold as second grade material bringing a
lesser price for the goods. Ferrante also testified that
although needle lines occur frequently, the operator of the
machine should, if he is paying attention to his job, spot the
defect quickly. Hopefully, the defect is spotted as the
material first comes down and can be seen by the machine
operator. Perhaps three times a day an operator may have
broken needles. But the damaged material should be
caught before 4 or 5 yards are produced. Certainly,
according to Ferrante, the defect in the material should be
caught long before 40 yards of material is run off. Ferrante
stated that the loss of 30 or 40 yards of goods due to a
broken needle should not happen even once a week. He
stated that perhaps it might occur once every 2 weeks.
Mario Diaz, unlike Ferrante, testified that he had
observed long needle lines frequently while performing his
work on the tenterframe. He was instructed, when he saw
such pieces, to mark the material and record the fact that
there was a needle line in the material. These pieces were
then sold as second grade material. Diaz also testified that
on many occasions he observed needle lines as long as 80
yards running through material, at other times 50 or 60
yards. As to frequency, Diaz stated that sometimes three or
four times a day he would notice pieces of material with
needle lines in them, and other days there would be none at
all. Elsewhere in his testimony, Diaz stated that he may
have seen five or six pieces of material in a single day with
40 yards of needle line in them or even more.
Clearly the testimony of Ferrante and Diaz is contradic-
tory with regard to the frequency of needle line defects in
material produced at Marvex. Once again I find the
testimony of Diaz the more credible. But if in fact the loss
of 50 yards of material due to needle line defects was such
a rare and important occurrence as Respondent attempts
to persuade it is, the testimony of Ferrante could easily
have been supported by the production of company
records reflecting the number of such losses over a long
period of time. Rather than producing the records which
could show that losses due to needle line defects were rare
and infrequent, Respondent chose only to produce the
records for January 12 and 14. Since Respondent did not
choose to prove its point by the production of available
records, I must assume that if those records were produced
they would not support Respondent's contention but
would rather indicate that the testimony of Diaz was, in
fact, true. It is also noteworthy that the exhibit offered by
Respondent to show that Imbert on January 12 produced
50 yards of defective material on machine number 10 also
reflects that 46 yards of defective material were produced
on machine number 19 by another employee. Although
Respondent's witness testified that the loss of the 46 yards
of material on machine number 19 was due to end outs, the
exhibit itself contains the notation that the loss of the 46
yards was due to a broken needle. More precisely, the
notation b/n (broken needle) appears directly opposite the
entry for machine number 19. In summary, with regard to
this particular matter, I find that Diaz' testimony is more
reliable, first, because I find him a more credible witness,
second, because the Respondent failed to put into evidence
records which would clearly support its contention, and
finally, because the records that were put in by the
Respondent do not support Respondent's position.
Testimony was adduced during the hearing concerning
Respondent's practice of disciplining employees for various
breaches of rules at the Employer's plant. Ferrante testified
that, generally, if the problem arising concerning a
particular employee was a matter of bad workmanship,
where possibly there could be damage to a machine
because of real neglect, then he would fire the employee on
the spot. If, however, it was something that could be
corrected, then he would keep the employee with the hope
of having him improve his workmanship; failing in that, he
would replace him. Replying to patently leading questions,
Ferrante testified that he considered having damaged
goods due to broken needles twice in I week as a serious
matter. More explicitly, Ferrante testified that, if he found
it necessary to warn an employee because of a loss of 40
yards of cloth, he would not tolerate it happening a second
time because then it proved that the man was just not
doing his job. He testified that what would occur under
those circumstances would be a warning the first time, and
termination upon the second failure of responsibility.
Ferrante testified that he had discharged knitters in the
past but could not recall specifically any of their names.
Upon being supplied various names by Respondent's
representative at the hearing, however, Ferrante finally
testified that he had, in fact, terminated an individual
named Juan Cardona. He did not, however, specify the
reason for that discharge. Concerning the individual who
produced the 46 yards of defective material on machine
number 19, Ferrante testified that he reprimanded that
person. He could not, however, recall that individual's
name either. With regard to lesser violations of company
rules such as knitters walking away from their machines or
wandering around, Ferrante testified that he would
1292
MARVEX PROCESSING & FINISHING CORP.
ordinarily give numerous warnings to these individuals to
return to their place of work, but if they then continued to
ignore his orders they would also be terminated. Once
again, however, Ferrante could not recall the names of any
individuals who were discharged for this reason. Both Diaz
and Imbert testified with regard to the discharges of other
knitters and neither could recall anyone ever having been
discharged for producing goods with needle lines in them.
In summary, one must conclude from the testimony of the
various witnesses on this subject that rarely, if ever, had
Respondent terminated an employee because he produced
defective work prior to the discharge of Imbert.
With regard to the actual loss of money involved,
assuming that Imbert's alleged production of defective
material had occurred and was a total loss, that loss
amounted to $75 to $80 per roll or at most $160. However,
I have credited Imbert's testimony that on January 12 no
discussion took place concerning defective work produced
by Imbert and therefore concluded that no such produc-
tion took place. I have also credited Imbert's testimony
with regard to the substance of the exit interview to the
effect that no rolls of damaged goods were shown to Imbert
and that Ferrante merely stated that he was being fired
because a needle line had been found in his work. The
credited testimony of Imbert together with the fact that
Respondent failed to produce records to show that the
alleged losses of material caused by Imbert were an
unusual or unique problem convinces me that the reasons
given by Respondent for Imbert's discharge are spurious.
E. The Contentions of the Parties-Analysis and
Conclusions
Respondent contends that the termination of Diaz was a
direct result of economic difficulties which Respondent
was undergoing at the time of the termination. Respondent
offered evidence to show that the industry and Respon-
dent, in particular, had suffered financial losses during the
months prior to Diaz' layoff. General Counsel concedes
that both the industry and Respondent, in particular, had
undergone economic reverses in the prior several months.
However, General Counsel contends that despite the fact
that there had been a number of layoffs in the late months
of 1975, due to Respondent's economic reverses, the
termination of Diaz was the direct result of his being
involved in union activity. An analysis of the evidence in
the record, as related above, reflects that Diaz had, in fact,
been active in union activity. He was active in 1974 on
behalf of the same union involved herein and was an
observer at the election held in that year. Respondent
admits that it was aware of Diaz' prounion sympathies
because of his service as the observer in the 1974 election.
In 1976, Diaz clearly was the most active union proponent
at the Employer's plant inasmuch as he was the one who
first contacted the Union and initiated the organizing
campaign which began in January of that year. He was the
one who contacted the union representative to have him
come down to the plant and distribute union literature in
front of the factory and he was the employee who, along
with Luis Imbert, went around to the various employees in
the plant to discuss with them the possible organizing of
the plant. Finally, he was the individual who went around
the plant and spoke with employees, once again along with
Luis Imbert, about the meeting that was scheduled to take
place with the union representative that evening at 4 p.m.
on January 9. On that day, after Diaz went around from
employee to employee advising them of the meeting which
was scheduled, he was abruptly called into the office of the
Employer and advised that he was being laid off because of
lack of work. The abruptness of this termination without
previous warning or hint that the Employer was consider-
ing laying off Diaz, when considered with the surrounding
circumstances, is not only suspicious but requires that the
inference be drawn that the Employer heard from the
employees to whom Diaz had spoken earlier about the
union organizational meeting and took immediate action
against him.
I find it of extreme importance that, although some 34 or
35 employees had been laid off before Diaz, in each case in
the department where he worked and in the classification
in which he was employed these employees were all laid off
in accordance with seniority until Diaz was terminated. In
his case he was terminated before two less senior employ-
ees, at least, who were working in the same classification
that he was. As noted above, Respondent offered a number
of reasons why it chose to keep these younger employees,
Andrade and Pineda, rather than Diaz. But, as noted
above, I have concluded that the reasons offered by
Respondent to prove that the other two employees were
better qualified than Diaz were not supported by the
evidence in the record. I therefore conclude that the
explanation given by Respondent for terminating Diaz
while keeping the other two was spurious and that the true
reason for the termination of Diaz was the union activity in
which he participated on the day of his discharge and
earlier and the Company's inferred knowledge of this
activity, as supported by the timing of the discharge. I also
rely on the fact, in reaching this determination, that Diaz
was one of the oldest employees employed by the
Employer and that he had been considered a valued
employee as reflected by the number of raises which he had
received since his employment. In a plant the size of
Marvex, where only 15 or so rank-and-file employees were
employed, where the union activity of the dischargee was
substantial, and where the timing of the discharge followed
immediately upon the union activity of the dischargee, an
inference may justifiably be drawn that the discharge was
in consequence of the union activity. Marco Paper Products
Co., 179 NLRB 194 (1969); Don Swart Trucking Co., 154
NLRB 1345, affd. 359 F.2d 428 (C.A. 4, 1966); Weise Plow
Welding Co., Inc., 123 NLRB 616 (1959). In the cases
herein cited, there was usually some indication of union
animus on the part of an employer which supports the
inference of unlawful motivation. The instant case is no
exception. Union animus on the part of Respondent is
clearly indicated in the instant case by the statement made
by Ferrante on January II, that he would not permit a
union to represent the employees of the Respondent, and
by the statement of Ferrante to Echeverry on January 12,
that if he found out who was attempting to bring the Union
in, he would break his legs.
With regard to the discharge of Imbert, all of the indicia
necessary to prove General Counsel's case are present.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, Imbert was clearly and substantially involved in the
union activity at Respondent's plant. Knowledge of
Imbert's union activity is clearly indicated by the conversa-
tion which occurred on January I 1, during which Ferrante
interrogated Imbert as to the union cards which Imbert
had brought into the plant, and which Imbert freely
admitted to having received from Diaz. Thus Ferrante was
made clearly aware at that time, if he had not known
earlier, that Imbert was involved in the union activity. With
the union activity of Imbert, company knowledge of that
activity, and the timing of Imbert's termination which
occurred within a day or two of the employer's obtaining
the information concerning his union activity, General
Counsel's prima facie case is made. There remains only
consideration of the defenses offered by the Company to
determine if the defenses offered were in fact the true
reason for the discharge rather than the union activity of
the dischargee. As noted above in the section dealing with
the facts of the case, Respondent completely failed to
substantiate its postion that it terminated Imbert because
of his production of defective work. Although Respondent
might have produced at the hearing sufficient data from its
records to prove that Imbert had produced more defective
work than produced by other employees at the plant,
Respondent failed to produce such records. Faced with this
evidentiary omission on the part of Respondent, and
having credited the testimony of Diaz as to the high
frequency of production of similar defective work, I must
conclude that the true reason for the discharge of Imbert
was, in fact, his union activity and not the production of
defective material as claimed by Respondent. In summary,
I conclude that both Diaz and Imbert were terminated
because of their union activity in violation of Section
8(a)(1) and (3). As noted above I also conclude that the
interrogation of Imbert on January I was in violation of
8(a)(l) and the interrogation of and threats to Echeverry on
January 12 were similarly violative of the Act.
CONCLUSIONS OF LAW
1. Marvex Processing and Finishing Corp. is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interrogating employees concerning their and
other employees' union sympathies and by threatening
employees with physical harm because they engaged in
union activities, Respondent has interfered with its em-
ployees' Section 7 rights as set forth in the Act and has
thereby violated Section 8(a)(1).
4. By discharging employees Mario Diaz and Luis
Imbert and refusing thereafter to reinstate them because
they engaged in union activities, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom, and to take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Mario Diaz and Luis Imbert were
discriminatorily discharged. I shall recommend that Re-
spondent be required to offer them full and immediate
reinstatement, with backpay to be computed in accordance
with F. W. Woolworth Company, 90 NLRB 289 (1950), with
6-percent per annum interest in accordance with Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 3
Respondent Marvex Processing and Finishing Corp.,
Westbury, New York, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their own and
other employees' union activities and threatening employ-
ees with physical harm because they engaged in union
activities.
(b) Discharging or otherwise discriminating against
employees in regard to hire or tenure of employment or
any term or condition of employment in order to
discourage membership in or activities on behalf of Local
819, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act:
(a) Offer Mario Diaz and Luis Imbert immediate and full
reinstatement 4 to their former positions or, if such
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make Mario Diaz and Luis
Imbert whole for any loss of pay due to the discrimination
against them by awarding Mario Diaz and Luis Imbert
backpay from the date of their discharges to such time as
they receive a valid offer of reinstatement, all computations
of such moneys to be in accord with the Board's decision in
F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
4 In view of the fact that at the time of the hearing Respondent no longer
was operating the place of business where the discriminatees were
employed, implementation of the reinstatement provisions of this order, if
necessary, may have to await further proceedings in the compliance stage.
Northridge Knitting Mills, Inc., 225 NLRB 1054 (1976).
1294
MARVEX PROCESSING & FINISHING CORP.
(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,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this order.
(c) Mail exact copies of the attached notice marked
"Appendix" 5 to the Union, Local 819, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, to employees Mario Diaz and
Luis Imbert, and to each employee in its employ at the time
it ceased operations at the plant. Copies of said notice, on
forms provided by the Regional Director for Region 29,
after being duly signed by an authorized representative of
the Company, shall be mailed immediately after receipt
thereof. Notices should be in both English and Spanish.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
I In the event that the Board's 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
After a hearing in which all sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we have violated the National Labor
Relations Act and has ordered us to mail this notice to our
employees.
The Act gives the employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the purpose
of collective bargaining or other mutual aid or
protection
To refrain from the exercise of any such
activities.
In recognition of these rights, we hereby notify our
employees that:
WE WILL NOT interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed to
them by Section 7 of the National Labor Relations Act,
by interrogating and threatening employees because of
their union activities.
WE WILL NOT discharge or otherwise discriminate
against any employee because he has joined or
supported a union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
WE WILL offer Mario Diaz and Luis Imbert full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their former rights and privileges
and make them whole for any loss of earnings they may
have suffered.
MARVEX PROCESSING &
FINISHING CORP.
1295