Seasonaire, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1971

189 N.L.R.B. 416 (N.L.R.B. 1971)

416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seasonaire , Inc. and Israel Piatek . Case 29-CA-2024 TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
March 29, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND
KENNEDY
On December 11, 1970, Trial Examiner Thomas A.
Ricci issued his Decision in the above-entitled
proceeding, finding that Respondent had not engaged
in the alleged unfair labor practices and recommend-
ing that the complaint be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision with supporting brief
and the Respondent filed a brief in opposition to
General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, I conclusions,2 and recommendations of the
Trial Examiner.
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 Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
I We note and correct the following minor errors in that section of Trial
Examiner's Decision entitled "Credibility " which in no way affect the
result in this case
In the second paragraph , the reference to Goldberg should read Platek,
in the third paragraph , the third sentence should begin "When Pastel told",
in the seventh paragraph , the fifth sentence should begin "I also credit
Pastel's
2 These findings and conclusions are based , in part, upon the Trial
Examiner 's credibility findings , as to which the General Counsel excepts It
is the Board's established policy, however, not to overrule a Trial
Examiner's resolutions with respect to credibility unless, as is not the case
here, the preponderance of all the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products, inc, 91 NLRB 544,
enfd 188 F 2d 362 (C A 3)
THOMAS A. Ricci, Trial Examiner: A hearing in the
above-entitled proceeding was held before the duly
designated Trial Examiner on October 20 and 21, 1970, at
Brooklyn, New York City, on complaint of the General
Counsel against Seasonaire, Inc., herein called the Respon-
dent or the Company. The sole issue of the case is whether
the Charging Party, Israel Piatek, was discharged in
violation of Section 8(a)(3) of the Statute. Briefs were filed
after the close of the hearing by the General Counsel and
the Respondent.
Upon the entire record, and from my observation of the
witnesses, I make the following: I
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Respondent is engaged in the manufacture, sale, and
distribution of ladies' garments and related products, and
maintains an office and place of business in Brooklyn, New
York. The Respondent is a member, for purposes of
collective bargaining, of National Skirt and Sportswear
Association, Inc., which exists for the purpose, inter aha, of
bargaining with labor organizations on behalf of its
members. During the past year, a representative period, the
members of the Association purchased and caused to be
transported and delivered to their places of business, cloth
and other goods andmaterials valued in excess of $50,000 of
which goods and materials valued in excess of $50,000 were
transported and delivered to their places of business in
interstate commerce directly from States of the United
States other than the State in which they are located.
During the same period the members of the Association
manufactured, sold, and distributed at their places of
business products valued in excess of $50,000, of which
products valued in excess of $50,000 were shipped from their
places of business in interstate commerce. I find that the
Respondent is engaged in commerce within the meaning of
the Act, and that it will effectuate the policies of the Act to
exercise j unsdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
I find that Amalgamated Ladies' Garment Cutters'
Union, Local 10 , International Ladies' Garment Workers'
Union, AFL-CIO , herein called the Union , is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
The Issue of the Case
The complaint raises a single issue : Does the evidence
I A motion of the General Counsel to correct the transcript is hereby
granted
189 NLRB No. 67
SEASONAIRE, INC. 417
prove affirmatively that the Respondent discharged Israel
Piatek, a cutter employed 9 months, for a reason proscribed
by the Act? Before a violation of Section 8(a)(3) can be said
to have occurred it must be proved that the employer
discharged the employee "to encourage or discourage
membership in a labor organization." The Board has also
held it is a violation of Section 8(a)(1) if a man is discharged
for engaging in "concerted" activities. The complaint as
phrased is ambiguous in its allegation as to exactly what
conduct it was by Piatek that the Respondent is said to have
resented and to have intended to curb by the discharge. It
reads only that the man's activity was "protected," that it
was "concerted," and that it was "in connection with the
Union." Although a complex story came to light from the
testimony, the General Counsel stated a somewhat
ambiguous position as to what the factual contention is,
and generally reiterated the conclusionary language of the
complaint.
The Respondent denies any illegal motive in the
discharge. In defense it asserts the real reason was that
there was not enough work to keep Piatek on, and as his
status had been at all times that of a "temporary" cutter,
there was nothing improper in his release at that moment.
Chronology
There are certain basic facts that are clear and not really
disputed. Piatek was hired to be a cutter in the Respon-
dent's Brooklyn, New York, cutting department, where
during the period involved four or five other cutters worked
regularly; Goldberg, long a member of the Union himself,
is the foreman, with power to hire and discharge. All the
cutters are members of the Union, and the shop is covered
by a collective-bargaining agreement that was received in
evidence. Piatek started during the workweek ending June
13, 1969.
Goldberg discharged Piatek early in the morning of
Wednesday, March 4, 1970. Both men agreed at the hearing
that it all started with the foreman finding fault with the
cutter for the quality of his work, complaining that he was
not cutting the correct amount of certain trimmings for the
garments. Their stories as to how the resultant heated
dialogue continued then differs. According to Goldberg,
Piatek retorted it was the customers who were wrong in
complaining and accused Goldberg of not knowing his own
business , and then, with Goldberg pressing his criticism,
Piatek spoke to him in very foul language. At that point the
foreman fired the man for being insubordinate and
personally offensive. As he told the story, Piatek started by
telling Goldberg "`You don't know what you are talking
about. You have got a jumble of figures in here. Nobody in
his right mind would understand these figures.' Then a
scrapple took place, and one word led to another and I
wound up telling him `You are running a scab shop.' That is
all." At the hearing Piatek denied using any offensive
language and Goldberg testified the cutter never mentioned
"scab shop" or any nonunion condition of the shop.
From the factory Piatek went to the union hall to
complain to Business Agent Pastel of his discharge. And
again there is sharp conflict in testimony between Piatek
and the business agent as to what was said. The cutter
testified that when he said he 'had been released Pastel
asked why , and he answered it was because he, Piatek, had
accused Goldberg of "running a scab shop." At this point,
still according to Piatek , the business agent picked up the
telephone and told Goldberg he could not lay off the cutter
because the man had worked 9 months. After listening to
the foreman Pastel turned to Piatek and told him he was
temporary and could be released.
In contrast to this, Pastel's testimony is that when he
asked why Piatek had been laid off, the cutter "told me that
he was told there was no more work in the shop," and he
responded that as the man had accepted temporary
arrangement there was nothing the Union could do for him.
It was here, according to Pastel , that Piatek started a
"harangue" about a nonunion man working in the shop.
In any event, in consequence, late that day Pastel
telephoned Goldberg and called for a shop meeting; all the
cutters, together with Goldberg, came to the union hall and
conferred with Pastel and Klein, another union official.
Here the business agent and Klein gave voice to Piatek's
report that a nonunion man was working at the cutting
tables and they charged all the cutters, foreman and rank-
and-file, with violating union rules by working with the
man and not reporting the contract violation to their
Union. As to this meeting, too, Piatek's testimony departs
from that of the other witnesses . He said three different
nonunion conditions were aired, all reported by him. (1)
Battey, not a cutter at all, was working as a cutter; (2)
Diamonte, a cutter, was not himself punching his timecard;
and (3) four "boys," really bundle helpers, were doing
cutters' work at the tables although not union members and
not cutters themselves. Piatek added that he "accused" the
business agent of never visiting the shop during the 9
months he had worked there . The business agent recalled
only that the question of Battey, the nonunion man
working, was discussed, and that Goldberg admitted he had
done wrong in using the man. Goldberg recalled there had
been mention of Diamonte not signing his card, but that
when he and Diamonte denied the assertion , that matter
was dropped. As to the "four boys" there is only the
statement of Goldberg that "its possible" the matter was
mentioned, but no charges were filed on that subject.
In the course of the discussion there was also talk of
Piatek's discharge, Goldberg explaining he had fired the
man for using offensive language and insubordination.
Goldberg added the business agent then said he had a right
to do this . The matter of the nonunion man working ended
with the business agent deciding to file internal union
charges against the entire cutting group and Goldberg filing
a charge against his fellow member Piatek for speaking
disrespectfully to him . In the end, at the close of the
meeting, both Klein and Pastel requested that Goldberg
nevertheless take Piatek back to work , and the foreman
agreed to do so.
On Friday, March 6, Piatek was back at work. That same
day Pastel, in his capacity as union officer, filed the internal
charges against the cutters, including Goldberg, in general
language for conduct detrimental to the Union and
unbecoming good members. Also that day Goldberg, as a
union member, filed a charge against Piatek for speaking
disrespectively to him.
A hearing before the Union's full execution board on
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
both these charges took place on March 12. All the cutting
room men were present. Here too the testimony conflicts as
to what was said, but there was received in evidence the
minutes of the meeting as kept by Klein, the secretary of the
executive board. Two charges were heard, that by Board
Agent Pastel against all the cutters and Goldberg's against
Piatek.
Accused of having improperly permitted Battey, the
unskilled nonunion man, to cut cloth at the tables, all the
cutters, as well as Goldberg, admitted their error. This
according to Klein, Pastel, and Goldberg. Piatek insisted at
the hearing he did not confess guilt. Piatek also testified
there was talk of Diamonte, the shop chairman, not
punching his own timecard as required. Goldberg said there
was no talk about Diamonte's card that night, and no other
witness spoke of it; the minutes of the meeting are entirely
silent on that subject. Piatek also said that there was
considerable discussion about Pastel's failure to inspect the
Respondent's plant during the entire 9 months he worked
there. As he told it Pastel's competence was a major issue
that night. He detailed how the business agent defended
himself by protesting no one had reported the nonunion
man to him, and that then "I informed Mr. Pastel in front
of these 40 members [the members of the executive board]
that the reason I didn't inform him was that I didn't trust
him." Both Pastel and Klein recalled nothing about the
business agent not visiting the shop. Goldberg testified
Pastel had visited the shop during that period, and added
that after the execution board meeting there was an
announcement by Dolgen, the Union general manager, that
another business agent, Liebgott, of Brooklyn, would take
the place of Pastel, who was really a Manhattan man.
The board decision on the charge against all the cutters
was to fine Diamonte $25 and only to "instruct" the rest not
to do this again.
The charge against Piatek was considered next. Again
Goldberg accused him of speaking offensively and again
Piatek denied it. Three of the regular cutters-Torres,
Rivadullo, and Rodriguez-were asked what they had
heard and all three corroborated Goldberg. The executive
board then lectured both Goldberg and Piatek to behave
"with dignity" as good union members and dismissed the
charge.
Piatek worked from the 6th to the 27th, when Goldberg
again discharged him. Both testified that the foreman's
stated reason then was that there was not enough work to
keep the cutter. Goldberg testified he asked Piatek for his
telephone number, so as to be able to call him if the
occasion arose, only to have the cutter respond he would
himself call up to inquire. Piatek denied being asked for his
number, but in the end did admit telling the foreman it was
not possible to reach him by phone. It is this discharge that
is now said to have been an unfair labor practice.
Credibility
Piatek was the only witness called by the General
Counsel and at virtually every significant point his
testimony conflicted with that of the other witnesses. In
part because of his demeanor-he was clearly an angry
man, emotionally volatile, and personally antagonistic to
all other persons involved in the events, in part because of
inherent inconsistencies in his story, and in part because of
an implausibility in much of what he said, I am unable to
credit him. He was twice discharged, with ' certain
circumstances in each instance indicating at least prima
facie justifiable reason. But instead of addressing himself to
the merits of the issues, he turned the questions into
unrelated matters, both when the things happened and
during the hearing. When Foreman Goldberg first
criticized him on March 4 for errors in his work, as Piatek
admitted Goldberg did do, he answered-if he is to be
believed-that Goldberg was running a scab shop. The one
idea simply had nothing to do with the other. When later in
the day Pastel asked him why he had been released, again,
still according to the cutter, he said it was because he had
thrown this nonunion business into Goldberg's face. But
Pastel said Piatek gave the reason as insufficient work, and
only first spoke of the nonunion Battey after the business
agent had called him temporary and told him the Union
could not help him. But if Piatek had any rational basis for
protecting his job, apart from inflammatory irrelevancies, it
should have been his permanent status, upon which he
eventually based his charge before the Labor Board. As he
would have it, it was Pastel who first spoke of the 9 months'
tenure. Why should he bring up this matter? More likely,
were it true the cutter started by reporting he had been fired
for attempting to prevent contract violations in the shop,
the business agent would immediately have charged
Goldberg with the clearest illegal discharge. Instead, as
Piatek himself testified, the business agent called Goldberg
only to say he could not lay off the man because he had
been "there 9 months."
Tracing the truth a bit at a time, there is the matter of the
foul language. Piatek admitted "a scrapple took place, one
word led to another," and denied any bad language. A
week later the three cutters, perfectly good union members
themselves, openly contradicted Goldberg. It was not
necessary for these three gentlemen to repeat their story
before me at the hearing; it is enough Piatek himself
admitted they gave such "testimony" at the executive board
meeting. I find, if only on the basis of the open statements
of these three cutters, that Piatek did speak very offensively
to the foreman and was insubordinate that day.
Next comes the matter of the executive board meeting
itself. Piatek's total testimony respecting that evening,
added to his story of some earlier events, reflects a deep-
seated personal animosity towards Business Agent Pastel
that remains unexplained on this record, but which
nevertheless serves to further weaken his credibility
generally. When Piatek told him on March 4 that he was a
temporary man and could not look to the Union for help,
Piatek went to the manager, Dolgen, to say "he has got a
racket man as a business agent ." Dolgen 's answer was, as
Piatek himself said: "How dare you speak that way about
my business agents." Piatek continued his attack upon
Pastel later in the day, at the shop meeting "whom I
complained that did not show up at my place for ten
months there that I was there." As Piatek told it, at the
executive board meeting much of the talk was about
Pastel's failure adequately to police the shop, whether or
not he should be permitted to continue as business agent
there, and, he tried to make it appear, about who was really
SEASONAIRE, INC.
to blame for the nonunion conditions in the cutting room.
But all this had nothing to do with either of his discharges.
It all appears as an attempt by Piatek, from first to last, to
change the subject, to shift the burden of the entire case
from the issue of his conduct to the competence and
behavior of the business agent . The charges were explicit
enough - Had the cutters been delinquent in not reporting
condit ions , and had Piatek misbehaved towards Goldberg?
Diamonte was the most skilled man in the shop , only he
and Goldberg do the marking, the most difficult part of the
work . Goldberg said Diamonte is guaranteed a bonus every
3 months for this reason . Diamonte 's punch card shows he
is consistently paid exactly 9 hours overtime weekly, strong
indication the punching of his card is mechanical , probably
done perfunctorily by somebody else. But the Union knew
this, no charge in that respect was made , and there is no
proof the system of overpayment to him had changed at all.
Nevertheless Piatek blandly stated at the hearing that
Diamonte was fined $25 by the executive board for not
punching his timecard in violation of state law. No one else
recalled such a thing, the charges in evidence do not speak
about it, and the minutes of the meeting say nothing on the
subject at all. All the indications are that each one of the
cutters admitted that with knowledge of the nonunion man
working they had been remiss in not reporting the fact to
the Union. Alone among the cutters Piatek said at the
hearing he did not admit any guilt . In the teeth of this
denial he admitted knowing all about it during the many
weeks it had been going on.
The union contract in effect throughout Piatek's
employment provides that a cutter who has worked for 2
weeks acquires permanent status as a regular workman. It
also provides that work must always be shared equally
among all permanent employees in the shop, and that when
there is not enough for all none may be released but instead
all must share the brunt of reduced work equally.
Piatek started by testifying that when he was first hired
Goldberg told him he "had only couple of days work for
me." Two weeks later he asked could he bring his own
scissors and the foreman said he could. Piatek contended at
the hearing this meant , in keeping with a practice in the
trade , that he acquired permanent status. Goldberg testified
he needed two cutters at that time , in part because there
was more work than usual and in part because a regular
man-Wilamsky-had left on vacation . He continued that
between the two cutters he hired, Rodriguez and Piatek, the
latter was the less capable and therefore he decided to
arrange for a "temporary" status for him . Both Goldberg
and Pastel , the business agent , explained at the hearing that
there has long been a practice in the industry for union
cutters to be hired, in certain situations , as temporary
people for indefinite periods. The rationale given is that in
order not to prejudice the fixed rights of regular, permanent
cutters to share the work, seasonal or other unusual
increases in work volume are performed by such temporary
people , who can be released when in the judgment of the
employer he thinks fit As a safeguard against abuse of the
privilege, and as protection of the rights of permanent
people, the employer is required, soon after the initial
419
hiring, to advise his employer association in writing of his
intention to mark the man "temporary ," the association
must then advise the Union , and the Union finally states its
agreement ? Goldberg and Pastel testified that this is the
arrangement that was made with respect to Piatek.
Goldberg said that he initially obtained Piatek as a
requested referral from Pastel , but that when he realized the
man was not well qualified , he tried to obtain a replacement
but Pastel had none . He then had Seasonaire request its
Association to clear Piatek through the Union as a
temporary man. Pastel corroborated this testimony and to
prove the point there was received in evidence a letter dated
June 13, 1969, from the Respondent to the National Skirt
and Sportswear Association informing it that Piatek was
temporary , and a letter dated June 16, 1969 , from the
Association to the Union stating the same fact . Pastel then
testified he telephoned Piatek , read the Association 's letter
to him , and the man agreed to the temporary status. It will
be noted that Goldberg was then free, under the contract
terms, to release him as a probationary if he had not been
willing to stay as a temporary man. Piatek denied having
heard from Pastel at all.
That in fact there is such a practice in the industry is
established beyond question by other testimony from
Piatek plus another exhibit . He said his last job before
joining the Respondent was for a company called Wippette,
that he worked there 3 months , and that his status there was
"temporary ." When he was released from that job he was
told the reason was because there was not enough work for
him. He left, he said , without complaint . Piatek could not
do otherwise, for on April 1, 1969, at just about the time he
started with Wippette , the Association advised the Union,
as another letter exhibit proves, that he was in fact a
"temporary" man.
Fair appraisal of the ultimate allegation of the complaint,
that Piatek was discharged on March 27 because of some
"protected" activity , and not because of lack of work,
requires first an evaluation of the affirmative defense.
There is a practice in this industry , in this area , of hiring
temporary cutters despite the literal wording of the Union
contract . This is how Piatek worked for 3 months before
joining the Respondent, this is what the letters to and from
the Association in June 1969 showed , and this is the
testimony of Goldberg and Pastel . No reason appears for
discrediting them . I also credit Piatek 's testimony that he
cleared the temporary status with Piatek by telephone.
Piatek had done nothing to offend him up to that point.
Perhaps the cutter 's distaste for the business agent grew
from a retroactive resentment over Pastel having agreed
with the Company 's request originally , when it later
developed the benefit first enjoyed could turn into a
dangerous status later . I am satisfied Piatek knew all along
he had no permanent status. His testimony would have
been more credible had he protested his right to work on
March 4 , when he found himself in violent dispute with
Goldberg. Instead, he injected an entirely extraneous
element , the Company's use of nonunion men at the cutting
tables. Had he really believed himself entitled to work
2 The Respondent Company bargains with the Union through the
Association
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under the union contract, it would have been more a logical
argument to make.
With this, the affirmative defense that he was properly
released on March 27 because there was not enough work
assumes added persuasion. Throughout the 9 months
Piatek worked, there was a regular pattern of overtime
performed by all the cutters, a consistent average of about 9
or 10 hours each week. Clearly the work was distributed in
keeping with the basic system. The company payroll
records show that for the complete 6-week period starting
with the week ending March 13 and continuing through the
week ending April 17 no overtime work was performed by
any cutter except Diamonte. And this is perfectly plausible
in the light of Diamont's special position. Piatek was
released in the very period when the work was slow, and
Goldberg's testimony that this is the time of year when
seasonal lows normally occur is thus born out by his
records of earlier years. And, of course, it was also precisely
the occasion when "temporary" men may be released
pursuant to the established practice.
Analysis and Conclusions
A reason for the discharge Goldberg had to have. In
resisting the Respondent's contention that it was for lack of
work, the General Counsel must advance some other
motivation, an intent to discriminate against Piatek because
of something he had done of disadvantage to the
Respondent, and, of course, that something must be the
kind of activity that is protected by the Statute. And it
certainly is possible that notwithstanding a valid reason for
discharge, an employer may dismiss a man for a prohibited
one.
Much was made on the record of the fact Piatek was in
sharp conflict with the Business Agent Pastel; as already
stated Piatek made every effort, both at the hearing and,
according to him, at the shop committee and the executive
board meetings to portray Pastel as a delinquent union
agent, indeed as responsible for the nonunion working
conditions in the shop. Seasonaire had moved its cutting
department from Manhattan to Brooklyn, and Pastel, the
Manhattan business agent, remained nominally responsible
for that company. It may well be, what with many vagaries
in the testimony, that he really did not go to the Brooklyn
location for a year. The shop was reassigned to the
Brooklyn business agent, Liebgott. Piatek slanted his story
to the idea the change reflected upon Pastel, proved
somehow he was no good. What relevance this entire
business of personal animosity between these two men, or
even the business agent's neglect, if neglectful he was, bears
to the question of Goldberg's attitude towards the cutter is
not clear at all.
The unspoken innuendo here is that Pastel was out to get
Piatek in retaliation and that Goldberg dismissed the man
to please Pastel. Innuendo aside, there is no evidence that
Pastel desired Piatek's discharge or gave any hint of such
desire to the Respondent. On the contrary, even after the
cutter had put Pastel on the spot by reporting the antiunion
conditions, the business agent on his own took the initiative
to have him restored to work. It was in consequence of his
good offices that Piatek was rehired on March 6.
More significant, when it was all over Piatek filed a
formal charge against the Union, alleging that it unlawfully
refused to process his grievance on the discharge. The fact
is Piatek never did file any grievance with his union;
investigation by the Regional Office produced no evidence
supporting that charge and it was dismissed. And as to the
Union having caused the discharge, there is neither charge
nor complaint.
If some of the facts of this case be taken out of context, a
certain picture would emerge. For a number of weeks the
Respondent had been using a nonunion cutter, Battey, for
work for which he was paid less than union scale; in any
event, he had no union book and for some reason or other
the arrangement served the Respondent's convenience. The
overt explanation at the hearing is that the Company
wished to help the man learn a trade because of his need
and his good will. It is probably true there was a technical
impropriety in someone else punching Diamonte's card, the
extra bonus man. But, while this practice too may have
stopped, the Company is still paying him a bonus and no
complaint by anyone has been made about it.
There is no question Battey, the nonunion man, had been
working contrary to union rules and Goldberg was aware of
the contract violation while this was going on. I am satisfied
Piatek brought up the entire subject only after being fired
on March 4 and realizing his temporary status, accepted by
the Union, left him no other course of action. This was his
way of combating the discharge and enhancing his chances
of returning to work. It was nevertheless Piatek who
brought these matters to the Union's attention, and,
whatever else may have happened, in the end the
Respondent had to discontinue these practices. Had Piatek
not brought up the subject, Goldberg could well have
continued as in the past. Moreover, after the shop
committee meeting, but before the final discharge on
March 27, Goldberg tried to obtain a union book for Battey
but the Union refused to issue one. Did he later discharge
the man because he turned to his union to enforce contract
provisions against the employer? If this is a proper finding,
it could prove an unfair labor practice by the Company.3
This theory is at best a circumstantial case, and like all
such cases carries weaknesses and supporting aspects. The
discharge came after the man's conduct. The first weakness
is that there is no evidence of union animus, no indication
that Goldberg felt hostile towards the Union, nothing, in
fact, that he resented the union attitude of anyone,
employee or union representative. The inference of illegal
motivation would have to apse purely from the sequence of
events. Post hoc, propter hoc. By the end of the shop
committee meeting late on the afternoon of March 4,
Goldberg knew that the beans had been spilled, he had
confessed the error of his ways, and there was no longer any
question that the past practices were going to cease. He had
already told Pastel he would cut it out, and he certainly
knew it was Piatek's doing that had brought him to this
pass. Notwithstanding, when it was all over and settled he
agreed to rehire Piatek simply because Pastel asked him to
do so. Goldberg did not have to take him back. Pastel had
3 Cf Bunney Bros, 139 NLRB 1516
SEASONAIRE, INC. 421
already said the man was temporary , and besides, he had
used foul language to him and been insubordinate . But if,
with good reason to make the first discharge stick,
Goldberg were willing nevertheless to take him back, can it
be found he harbored a hidden rancor and gave it vent 3
weeks later?
Every case must be evaluated on the totality of the
evidence . Against the foregoing picture-the strongest
possible view that can be taken in support of the
complaint-must be weighed the very persuasive facts
tending to prove the affirmative defense of a discharge for
cause . Piatek was a temporary employee , he was subject to
discharge when the work might decline , it in fact did fall off
substantially at the very time he was dismissed . The test of
whether an unfair labor practice has been committed
depends upon whether the General Counsel has proved his
case by a preponderance of the substantial evidence on the
record as a whole . I find the evidence insufficient to prove
that Piatek was unlawfully discharged. I shall therefore
recommend dismissal of the complaint.
CONCLUSION OF LAW
The Respondent has not engaged in the unfair labor
practice alleged in the complaint.
RECOMMENDED ORDER
The complaint herein should be, and it is hereby
dismissed.