Successful Creations, Inc.

National Labor Relations Board - Board Decisions

Mar 7, 1973

202 N.L.R.B. 242 (N.L.R.B. 1973)

242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Successful Creations , Inc. and Textile Workers Union
of America, AFL-CIO
Successful Creations, Inc. and Carlos Campos. Cases
22-CA-4444, 22-CA-4709, and 22-CA-4790
March 7, 1973
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On June 9, 1972, Administrative Law Judge'
Lowell Goerlich issued the attached Decision in this
proceeding. Thereafter, Respondent and General
Counsel filed exceptions and supporting briefs.
On September 15, 1972, the Board ordered that the
proceeding be remanded to the Administrative Law
Judge for the purpose of setting forth appropriate
credibility resolutions, additional findings of fact,
and conclusions of law and recommended remedy
and Order based thereon with respect to the issue of
whether the discharge of Martin Mogollon on
December 1, 1971, was an 8(a)(3) and/or (4)
violation, and any other issues that the Administra-
tive Law Judge might find flowing therefrom. The
Board also ordered that the Administrative Law
Judge issue a Supplemental Decision and Order with
respect to the above matters.
On October 20, 1972, the Administrative Law
Judge issued his attached Supplemental Decision
reaffirming his findings in his original Decision,
including his conclusion that Mogollon's discharge
violated Section 8(a)(1). However, he concluded that
such discharge did not violate Section 8(a)(3) or (4).
Thereafter, the General Counsel filed exceptions and
a supporting brief to his failure to find the latter
violations of the Act.
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 Decisions in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order to the extent
indicated below.
We agree with all of the findings and conclusions
of the Administrative Law Judge except his finding
that employee Martin Mogollon was discharged on
December 1, 1971,2 in violation of Section 8(a)(1) of
the Act, and his failure to find a violation of Section
I The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 Unless otherwise indicated , all events herein occurred in 1971
3 The Administrative Law Judge found the facts on which this additional
violation is based but apparently because of inadvertence failed to draw the
conclusion that such interrogation violated the Act
8(a)(1) with respect to certain other conduct of the
Respondent specified below.
1. Like the Administrative Law Judge we find the
informal settlement agreement entered into between
the parties in Case 22-CA--444 was properly set
aside. In so doing, we rely solely on the breach of the
aforementioned settlement, evidenced by Respon-
dent's (1) promise of a raise and a good position on a
new machine to employee Carlos Campos on
December 1 if Campos would forget about the
Union, in violation of Section 8(a)(1); and (2) further
violation of Section 8(a)(1) when Plant Manager
Bertelli, in making this promise, prefaced it with the
question of why Campos was trying "to put the
Union in the plant." 3
2. Having set aside the settlement agreement,, we
find, as did the Administrative Law Judge, and for
the reasons relied on by him, that Respondent
violated Section 8(a)(1) and (3) of the Act when it
discharged employees Oscar Martinez and Octavio
Moya on April 28 and employees Mogollon and
Campos on May 1, because of their union activities,
and, further, that Respondent violated Section
8(a)(1) when Bertelli asked employee Jose Lemos on
the latter date who the employees were that belonged
to the Union.
The General Counsel, while urging us to accept
these findings, contends in his exceptions that the
Administrative Law Judge erred in not finding that
the Respondent engaged in certain other conduct
also violative of Section 8(a)(1) of the Act during the
presettlement period. We find merit to his conten-
tions. Accordingly, we also find that Respondent
violated Section 8(a)(1) when, on April 25, Bertelli
asked Campos why he wanted the Union to come
into the plant and thereafter stated that when "the
Union came in . . . the factories go down. Take off
the over-time and close, too," and later, on April 28,
told Campos that employees Martinez and Moya
were discharged "on account of the Union" and he
would be too if he continued to solicit cards for it.
3. We find merit in the exceptions of the
Respondent to the finding of the Administrative Law
Judge that Mogollon was terminated on December 1
in violation of Section 8(a)(1) for complaining about
what he (Mogollon) thought was an unfair allocation
of overtime to him.4 For reasons explicated below,
we find that Mogollon's final discharge was for
cause.5 The facts as found by the Administrative
Law Judge show that Mogollon was sent home from
work on November 29 without being given overtime.
4 Mogollon had been reinstated, with Campos, in July, in anticipation of
the settlement entered into in Case 22-CA-444.
5 In view of the entire record in this case, including Respondent's
unlawful discharge of Mogollon in May 1971, Member Fanning agrees with
the Admimstrative Law Judge that Mogollon was again unlawfully
discharged the following December when he grieved about what he
202 NLRB No. 33
SUCCESSFUL CREATIONS 243
This upset Mogollon who went to Campos to enlist
his aid. They decided to speak to the Union about
the matter, and the next morning they visited the
Union. On December 1 Mogollon complained to
Supervisor Marco DiGregorio that overtime had
been taken away from him. In the process, Mogollon
also told DiGregorio that he had gone to the Union.
DiGregorio promised to talk to Bertelli about "this."
At lunchtime Mogollon was called into a meeting in
the conference room of Respondent with Bertelli,
DiGregorio, and Foreman Edward Rose. As more
fully described in the decision of the Administrative
Law Judge, at the above meeting Mogollon com-
plained that Bertelli had no right to deny him
overtime on November 29 or at any other time that
he (Mogollon) chose to work it. He persistently
maintained throughout the course of the meeting
that after his regular shift was over, the choice was
his to make as to when he would and when he would
not stay to work overtime. He further stated that if
he did not like to work Sunday, he would make up
the time on another days Bertelli informed Mogol-
lon that company policy prohibited an employee's
choosing when he would work overtime but Mogol-
lon insisted otherwise. Finally, Bertelli asked Mogol-
lon if he was questioning his authority, as well as his
judgment, to determine who would work overtime
and when. Mogollon's reply was that he could have
worked 2 hours on the 29th. At this point, Bertelli
states he decided to discharge Mogollon, In terminat-
ing his employment, Bertelli told Mogollon "that if
he did believe that he could choose his own times,
when to work and when not to work on the basis of
overtime, he could find another place, another
factory."
Based on the above facts, the Administrative Law
Judge concluded that Mogollon was discharged in
violation of Section 8(a)(l)-a conclusion with
which, as noted previously, we disagree.
In our view, whether Mogollon was engaged in
concerted activities in submitting his grievance or
whether he was making a personal complaint to the
Respondent about his failure to obtain overtime at
his convenience, we find that he removed himself
from the protection of the Act when he challenged
the authority and prerogative of the Respondent to
fix overtime and refused outright to work overtime
except at his leisure and when he chose, without
considered an unfair allocation of overtime In this respect Member
Fanning does not accept his colleagues' conclusion that Mogollon's inexpert
use of words to support his position on overtime provided Respondent with
sufficient cause to immediately discharge Mogollon on that ground alone
6 Mogollon's remarks about working Sundays-for which work he was
paid at double time rates-were occasioned by Bertelli's reminding him that
he had failed to appear for work the previous Sunday and had worked less
hours than called for by his regular shifts on November 14 and 21, that if
Mogollon were interested in making more money he would work on
Sundays
regard to the needs or desires of Respondent. By
insisting at this meeting that it was his exclusive right
to determine his future overtime assignments and
when he would complete such assignments , Mogol-
lon made it perfectly clear to Respondent that he
would work overtime only as he pleased, and that he
expected the Respondent to accept and abide by his
decisions.
In these circumstances, we construe Mogollon's
adamant insistence on the privilege of setting his
overtime hours as a clear declaration that he would
not accept the Employer's answer to his grievance,
but then and there would determine himself the
terms under which he worked. Mogollon had already
demonstrated to the Respondent's disadvantage just
how he would exercise such a right when he failed to
report for overtime work, as scheduled, the previous
Sunday because he did not want to work that day. As
a result of his actions, the Respondent claims it lost
production that it had expected to gain by operating
that Sunday. Thus, on the credited facts we can only
conclude that the discharge was prompted solely by
Mogollon's attempt to dictate conditions of his
working overtime rather than his having engaged in
any conduct protected by Section 7 of the Act.
Accordingly, we shall dismiss the 8(a)(1), (3), and (4)
complaint allegations respecting his above dis-
charge.7
AMENDED CONCLUSIONS OF LAW
Delete paragraph 5 and renumber paragraph 6 as
paragraph 5.
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 as
modified below and hereby orders that Respondent,
Successful Creations, Inc., Northvale, New Jersey, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order,8 as
so modified:
1. Delete the phrase "concerted activities of its
employees, or" from subparagraph 1(a).
2. Renumber subparagraph 1(d) as 1(e) and in its
place insert the following as subparagraph 1(d):
7 We agree with the Administrative Law Judge , for reasons stated in his
Supplemental Decision , that the discharge was not prompted by union or
"Labor Board" considerations
8 In view of our dismissal of the allegations of the complaint that
Mogollon was unlawfully discharged on December 1, 1971, and Campos
was unlawfully laid off on February 7, 1972, our adoption of the
recommended Order of the Administrative Law Judge shall not be
construed as a requirement that Respondent offer these two employees
reinstatement as of those dates or be required to retain them in employment
thereafter.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"(d) Unlawfully threatening to close the plant or
discharge employees or take other reprisals against
them because of their union activities."
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
An Administrative Law Judge of the National Labor
Relations Board, after a hearing in which all parties
were permitted to introduce evidence, found that we
unlawfully discharged Oscar Martinez and Octavio
Moya on April 28, 1971, and Martin Mogollon and
Carlos Campos on May 1, 1971, and that, by their
discharges, we discouraged employees from becom-
ing and remaining members of the Textile Workers
Union of America, AFL-CIO, and from engaging in
protected concerted activities.
If we have not already done so,
WE WILL offer these employees reinstatement
to their former jobs or, if those jobs no longer
exist, to, substantially equivalent jobs, without
prejudice to their seniority or other rights and
privileges, and make them whole for any backpay
they lost because we unlawfully discharged them,
except that we are released from this obligation in
regard to Mogollon and Campos after December
1, 1971, and February 7, 1972, respectively.
WE WILL NOT discharge or discriminate against
any employee for lawfully engaging in union
activities.
WE WILL NOT unlawfully interrogate our
employees with respect to their union activities.
WE WILL NOT unlawfully promise our employ-
ees any wage increases or other benefits if they
will refrain from becoming or remaining members
of a union or giving any assistance or support to
it.
WE WILL NOT threaten our employees with
plant closure, discharge, or other reprisals be-
cause of their union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to form
labor organizations, to join or assist Textile
Workers Union of America, AFL-CIO, or any
other labor organization, to bargain collectively
through representatives of their own choosing,
and to engage in concerted activities for the
purpose of mutual aid or protection as guaranteed
in Section 7 of the Act, or to refrain from any or
all such activities subject to the union-security
requirements of Section 8(a)(3) of the Act.
The laws of the United States give all employees
these rights:
To organize themselves
To form, join, or help unions
To bargain as a group through representa-
tives they choose
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any and all of these things,
subject to the union-security requirements of
Section 8(a)(3) of the National Labor Rela-
tions Act, as amended.
All of you are free to become or remain, or refrain
from becoming or remaining, members of a labor
organization.
SUCCESSFUL CREATIONS,
INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
viduals, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Building, 16th Floor, 970
Broad Street, Newark, New Jersey 07102, Telephone
201-645-2100.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH , Trial Examiner: The charge in Case
22-CA-4444 was filed by Textile Workers Union of
America , AFL-CIO, herein called the Union, on April 30,
1971, and upon the same date a copy of the charge was
served by registered mail upon Successful Creations, Inc.,
the Respondent herein . A first amended charge was filed
by the Union in Case 22-CA-4444 on May 4, 1971, and
was served by registered mail on the Respondent on the
same date . On August 2, 1971, the Regional Director for
Region 22 approved a settlement agreement between the
parties in Case 22-CA-4444 in which , among other things,
the Respondent agreed to pay Carlos Campos $1,500,
Martin Mogollon $1,000, Oscar Martinez $250, and
SUCCESSFUL CREATIONS 245
Octavio Moya $250, and to offer them reinstatement to
their former jobs. On October 29, 1971, the Regional
Director advised the Respondent with the settlement
agreement, Case 22-CA-4444 was closed and that satisfac-
tory evidence having been submitted of compliance would
"remain closed, conditioned upon continued compliance
with said Settlement Agreement." Thereafter, on Decem-
ber 2, 1971, the Union filed a charge in Case 22-CA-4709,
a copy of which was served upon the Respondent by
registered mail on the same date. On January 24, 1972, the
Acting Regional Director entered an order withdrawing
approval of and setting aside he informal settlement
agreement stating, among other things, as grounds for his
action that "the Regional Director has administratively
determined that the Respondent has, in the aforesaid Case
No. 22-CA-4709, violated 8(a)(1), (3), and (4) of the Act,
and has thereby engaged in unfair labor practices since
date of the approval of said informal settlement agree-
ment." On the same date the Acting Regional Director
issued an order consolidating cases, complaint, and notice
of hearing in Case 22-CA-4444 and Case 22-CA-4709.
On February 9, 1972, Carlos Campos, an individual, filed
a charge in Case 22-CA-4790 against the Respondent, a
copy of which was served upon the Respondent by
registered mail on the same date. On February 28, 1972,
the Regional Director issued an order consolidating cases,
amended complaint, and notice of hearing in Cases
22-CA-4444, 22-CA-4709, and 22-CA-4790. The amend-
ed complaint alleged that the Respondent had violated
Section, 8(a)(1), (3), and (4) of the National Labor
Relations Act, as amended, herein referred to as the Act.
Among other things, the amended complaint charged that
employees Oscar Martinez, Octavio Moya, Martin Mogol-
lon, and Carlos Campos had been unlawfully discharged.
The Respondent filed timely answer in which it denied
that it had engaged in the unfair labor practices alleged.
Among other things the Respondent alleged that the
settlement agreement provided that the "execution of this
agreement is not an admission of unfair labor practice
within the meaning of the National Labor Relations Act,
as amended." 1
The case came on for hearing on March 14, 15, 16, and
17, 1972, at Newark, New Jersey. Each party was afforded
a full opportunity to be heard, to call, examine , and cross-
examine witnesses, to argue orally on the record, to submit
proposed findings of fact and conclusions, and to file
briefs. All briefs have been carefully considered by the
Trial Examiner.
Upon the whole record and upon his observation of the
witnesses, the Trial Examiner makes the following:
1 The Trial Examiner has drawn no adverse inferences against the
Respondent because it executed the settlement agreement or because it was
administratively determined that it violated the agreement.
2 The credibility resolutions of the Trial Examiner have been derived
from a review of entire testimonial record and exhibits with due regard for
the natural logic of probability, the demeanor of the witnesses, and the
teachings of N L R B v Walton Manufacturing Company, 369 U.S. 404, 408.
As to those witnesses who testified in contradiction to the Trial Examiner's
FINDINGS OF FACT, CONCLUSIONS, AND
REASONS THEREFOR
I. THE BUSINESS OF THE RESPONDENT
The Respondent is and has been at all times material
herein a corporation duly organized under and existing by
virtue of the laws of the State of New Jersey and has
maintained its principal office and plant at 273 Livingston
Street, Northvale, New Jersey, herein called the Northvale
plant. The Respondent is now and at all times material
herein has been continuously engaged at said plant in the
manufacture, sale, and distribution of knitted and related
products. The Respondent's Northvale plant is the only
facility involved in this proceeding.
In the course and conduct of Respondent's business
operations during the calendar year 1970, said operations
being representative of its operations at all times material
herein, Respondent caused to be purchased, transferred,
and delivered to its Northvale plant wool fabrics and other
goods and materials valued in excess of $50,000 of which
goods and materials valued in excess of $50,000 were
transported to said plant in interstate commerce directly
from States of the United States other than the State of
New Jersey.
The Trial Examiner finds that at all times material herein
the Respondent was engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is and has been at all times material herein a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Pertinent Facts2
On April 22, 1971, the Union distributed fliers at the
Employer's Northvale plant. As a result of the fliers several
employees including Oscar Martinez, Octavio Moya,
Martin Armando Mogollon, and Carlos Campos resolved
to contact the Union. Moya and Martinez were chosen for
such purpose since they lived near the area where the
Union's offices were located. Moya and Martinez visited
the union headquarters on April 23, 26, and 27, 1971. On
the latter date they were given blank authorization cards
by Union Representative Sedor. Martinez and Moya
signed cards on April 27, 1971.
In the meantime on April 25, 1971, then3 Foreman
Frank Bertelli said to Campos in English 4 "For what you
want to come to the Union with this plant? You know the
Union, what they can do? .... The Union are very bad,
all Union. And the Union come in the factories, the
findings, the Trial Examiner has discredited their testimony either as having
been in conflict with the testimony of credible witnesses or because it is, in
and of itself, incredulous and unworthy of belief
3 Bertelh became the plant manager in the latter part of July 1971.
4 About 60 percent of the Respondent's production employees were
Spanish-speaking South Americans All the witnesses called by the General
Counsel testified in Spanish An interpreter translated the testimony from
Spanish into English
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
factories go down. Take off the overtime and close, too.
And all Unions are Mafia."5
The authorization cards were brought to the Respon-
dent's premises on the morning of April 28, 1971, where
Moya gave some of the cards to Campos at the Respon-
dent's parking lot. Mogollon received 10 or 12 cards from
Martinez.
On the same date, union solicitation of the Respondent's
first-shift employees was commenced in which Moya,
Campos, Mogollon, and Martinez were the chief partici-
pants. About 40 employees worked on the first shift. These
employees were contacted at breaktime and in the
Respondent's cafeteria which was located in a room about
15 to 17 feet square.
At approximately 2 o'clock in the afternoon of the same
day, Plant Manager Cyril Robey appeared at the work
stations of Moya and Martinez, shut off their machines,
and asked them to go to the office where Chief Engineer
Ira Myslak was waiting. Here a conversation took place in
English .6 Myslak accused Martinez of taking certain pieces
of cloth, also referred to as samples, which was prohibited.
Martinez replied that the incident happened on the second
day of his employment (Martinez was employed on March
15, 1971). Martinez further explained that he had taken the
small pieces of cloth which sometimes lie on the floor of
the plant in order to take them home to his wife to
ascertain whether she liked them and that, when he was
informed that taking them was prohibited, he threw them
away. Myslak replied that Martinez was an "industrial
spy" and they did not need his services anymore.
Whereupon Myslak handed pay envelopes to Martinez and
Moya. Moya remarked, "That's Martinez problem, why I
was there." Myslak replied, "Because you travel come and
go with him. You're also out." Robey conducted Martinez
and Moya to the dressing room where they obtained their
coats, to the line where they picked up their tools, and then
to the front door of the plant. Both employees had been
previously promised steady jobs.? Moya had worked for
the Respondent previously between August 2, 1967, and
February 4, 1968. He had returned to work on March 15,
1971.
On April 28, 1971, Bertelli, pointing at Martinez and
Moya, told Campos that they were discharged "on account
of the Union" and added that if Campos continued to
collect cards he would be the next one to be discharged.
On May 1, 1971, Bertelli asked employee Jose Lemos,
"Who belong to the Union?" Lemos answered, "The
people that have been fired already."8
Mogollon and Campos who signed their union organiza-
tion cards on April 28, 1971, continued to solicit for the
Union until they were discharged on May 1, 1971. During
'this period, Mogollon collected six or eight signed cards
and Campos distributed "many" cards. Both Campos and
Mogollon were experienced, qualified employees. Each
had worked about 9 years in the textile industry. Shortly
before he was discharged, Mogollon was told by Robey
5 Campos' testimony in respect to this incident was in English Campos
impressed the Trial Examiner as a forthright and sincere witness and, where
his testimony conflicts with that of Bertelli, Campos is credited
6 Martinez, Mogollon, Moya, and Campos testified , by their request, in
Spanish.
7 Neither Robey nor Myslak testified Robey no longer worked for the
that he was needed to run the machines. Mogollon was
rated by Bertelli as a very good worker. He was the only
employee on the first shift who could operate the tricot
machine, a very difficult machine to operate. On May 1,
1971, Robey appeared at Mogollon's machine and shut it
off. Robey took Mogollon to the dressing room where
Mogollon changed his clothes. Mogollon then went to the
cafeteria where he met Campos who told him that they
were "being fired for the reason that [they] gave out cards
for the Union." Campos had been in the office of President
Arthur Scherzer in response to a summons by Bertelli.
Scherzer said, "Are you being collecting union cards? You
get out. You get out today." Campos protested without
success . Bertelli ; Charles Blandino, a designer; Julio, chief
engineer ; and Ed Jerry, shipping foreman, were also
present .9
About a half hour after Mogollon had entered the
cafeteria Robey appeared with two checks and handed one
to Campos and the other to Mogollon. Mogollon did not
ask Robey the reason for his discharge. The Respondent's
usual payday is Thursday. May 1, 1971, fell on Saturday.
On May 2, 1971, an advertisement appeared in the
Sunday Bergen Record in which the Respondent sought
new and experienced personnel. Campos and Mogollon
returned to work in July 1971 pursuant to the settlement
agreement.
According to Scherzer sometime in August 1971,
Campos upon request to Bertelli was granted an audience
with Scherzer. Mogollon accompanied Campos. Bertelli
was also present. The "discussion was about raises and
about their work." Scherzer said that he had nothing to do
with raises and that this was left to Bertelli . According to
Bertelli , both men had demanded raises . Mogollon
continued to work until December 1, 1971, when he was
again discharged.
Bertelli testified that the reason for Mogollon's discharge
(which he committed to writing) was as follows: "[Q]ues-
tioning the authority of management to give overtime to
employees and choose upon himself when he wanted to
work overtimes and when he did not want to work
overtimes ... .
Of the incident which provoked Mogollon's discharge,
Bertelli testified:
He was invited to sit down and I did ask him why he
was complaining to Mr. DiGregorio about overtime.
And he said that he was not getting enough overtime.
So I asked him to explain to me why and how could he
make such a statement when he was working more
overtime than any other employees. And he told me
that I had no right to send him Monday home at four
o'clock. At first I don't understand what he meant. So I
asked him again , "What do you mean I had no right to
send you home at four o'clock?" He said, "Other
employees were working in the plant that particular
day overtime." So I did remind him like usual for the
last four months overtime has been given to employees
Respondent and at the time of the heanng was in England. No inference is
drawn from the Respondent 's failure to call him
E The uncontradicted credited testimony of Jose Lemos.
9 In respect to this incident the Tnal Examiner credits Campos. As
noted, Campos impressed the Trial Examiner as a veracious witness
SUCCESSFUL CREATIONS 247
according to the department they are in , and according
to the daily necessity that comes in the morning and we
expect some overtime , extra hours for every employee.
And, but he said that Monday, says , I had no
authority to send him home at four o'clock . So I did
explain to him again that the previous Sunday he didn't
show up and we had a loss of production . And also
November 14 and November 21 he did work less hours
than his regular shift. Now I asked him if he was
complaining about he was not making enough money?
He said, "Yes, I need the money very bad." So I
pointed out to him that Sunday is double time. And I
also pointed out to him all the employees love to work
overtime for the reason they get the double time. But at
this moment he says to me that overtime is not up to
me to decide about this overtime . So I asked him again
what he meant . And he said that after his 40 hours,
regular shift, it was up to him to choose when to stay
and when not to stay. So I asked him again to explain
to me . He said if he didn 't like to work Sunday, of
course , he would like to make up the times on another
day. So I told him , I said, that is against our policy of
the company . I said we do provide overtime for all
employees fairly, but he says I had no authority in the
sense that he worked specifically on that machine and
for the last four or five months when we had full
production , and even also if it was one machine to
watch , since he was entitled to work 2 hours and a half
every day.
So I did ask him if he was questioning my authority,
my judgment, how many machine operators, when I
have only one machine that is operating. He said to me,
"Even for two hours I could have stayed." And it was
getting a little excited. That moment I did make up my
mind to dismiss Martin Mogollon . And so I told him
that if he did believe that he could choose his own
times, when to work and when not to work on the basis
of overtime , he could find another place, another
factory . And I told him that he was dismissed , to wait
there , he would get his check for the day.
At 4 o'clock on November 29, 1971, Bertelli had told
Mogollon that there would be no overtime and that he
should return home. As he was leaving Campos inquired
where he was going and he answered that the overtime was
being taken away from him . The next morning Campos
told Mogollon that he had made an appointment at the
Union and that after work they would go to the Union and
discuss the overtime matter. Campos and Mogollon visited
the Union . On the next day, December 1, Mogollon
accosted Supervisor Marco DiGregorio and told him that
overtime had been taken away from him and that he had a
family and needed the overtime and asked him to help him.
Mogollon told him that he had gone to the Union and to
the Labor Department. DiGregorio said that he would
speak to Bertelli about "this."
At lunchtime Foreman Edward Rose contacted Mogol-
lon. Thereafter , Bertelli, DiGregorio , and Rose met with
Mogollon in the conference room. According to Mogollon,
Bertelh asked Mogollon what his problem was. He
answered that his problem was that there was no overtime
for him and that he had gone to the Union and the Labor
Department with Carlos Campos. Bertelli responded, "Oh,
you went to the union with Carlos Campos?" Mogollon
responded , "Yes." Bertelli left the room and returned with
President Schemer . Scherzer said , "You went to the
union ." Mogollon answered in the affirmative and Scher-
zer responded "Out, out. You are the union . You go to the
union . No more working, finished ." The group then
proceeded to the hallway, Mogollon told Scherzer that he
wanted to speak with Campos because Campos spoke very
good English and that he had problems. Mogollon went to
the cafeteria where he told Campos that he was fired and
that he needed him to go with him to talk to Scherzer.
Campos and Mogollon went back to the office where they
found Bertelli . Carlos said to Bertelli, "Let's go talk to Mr.
Scherzer." Bertelh replied that it was not his problem that
it was Armando's problem. Bertelli then obtained Mogol-
lon's timecard which he gave to DiGregorio to obtain his
check. DiGregorio returned and gave the check to Bertelli
who handed it to Mogollon who said, "Wait a minute,
Frank, why for me? Because I thought that I didn't want to
make a mistake that I made last time , I didn't ask the
reason why you were firing me?" Bertelli replied, "Because
you went to the union and to the labor department."
Mogollon refused to accept the check; Carlos returned to
the cafeteria ; Mogollon followed him. Bertelli told Mogol-
lon that he was not to speak to the people or they would
put him out with the police . Mogollon obtained his toolbox
and his clothes ; he spoke for a moment with Carlos.
Bertelli looked at his watch and told him to be going or he
would call the police. Mogollon left.
According to Campos, he tried to go to Schemer's office
with Mogollon but Bertelli intervened stating , "Finish you
lunch and go back to work. This is not your problem. This
is Mogollon 's problem." Campos argued Mogollon 's cause
which ended by Campos asking Bertelli why he fired
Mogollon . Bertelh replied, "He go to the Union and Labor
Board and he give the complaint. He suppose to give the
complaint to me."
That evening about 5:30 p.m. Bertelli asked Campos,
`Why you are trying to put the Union in the plant,' that
the plant was given every benefit, that work here was
satisfactory ...." Bertelli added that Campos should
forget about the Union and "that he was going to talk to
the owner to raise [his ] salary, and when the new machines
arrive, that [he had] experience, he was going to give [him]
a good position , so forget about the Union."
On February 7, 1972 , Bertelli handed Campos a check
and told him that he was laid off for 2 or 3 weeks or more.
On the same day another employee , Ralph Wonder, who
also operated or watched machines in the Raschelle
department , was laid off . Wonder's seniority exceeded
Campos' seniority by I day. Under the Respondent's
seniority policy, had the layoff been limited to one
employee, Campos, by reason of his lesser seniority, would
have been laid off. At the time of the hearing neither
Wonder nor Campos had been called back to work.
Prior to February 7, 1972, the Respondent's production
had fallen off to the extent that it was only producing
samples. Of the approximately 30 machines in the
Raschelle department where Campos worked at the time of
his layoff 5 or 6 were operating . In November 1971, 113
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees were engaged in production; in December 1971,
101; in January 1972, 73; and in February 1972, 69. Thirty-
two employees were laid off on January 18, 1972. The
contemplated layoff of these employees on January 18,
1972, was disclosed by the Respondent to James Pomeroy,
an investigator for the United States Immigration Service,
on January 17, 1972.10
Since the layoffs of Campos and Wonder no employees
have been hired to do the jobs which they performed at the
time of their layoffs.
B. Conclusions and Reasons Therefor"
1. The discharges of employees Oscar Martinez,
Octavio Moya, Martin Mogollon,
and Carlos Campos
The credible testimony of Carlos Campos is sufficient to
substantiate a finding that the Respondent discharged
Martinez and Moya on April 28, 1971, and Mogollon and
Campos on May 1, 1971, to discourage membership in the
Union. Other factors support the same conclusion. The
four employees discharged were the only employees who
had engaged in solicitation for the Union. Two of these
employees were discharged on the same day on which they
brought cards into the plant; the other two were discharged
before the week was out.12 Moreover the Respondent's
explanation for the discharges has no valid basis.13 Indeed
Mogollon was not given a reason at all for his discharge.14
In addition to the coincidence of timing, the Respondent's
knowledge of these employees' union activity may also be
inferred from the small size of the work complement (40 on
the first shift) 15 and the mathematical improbability of the
Respondent choosing only the 4 union activists for
discharge without some prior knowledge of their union
activities. See Ventre Packing Co., Inc. 163 NLRB 540.
Moreover, prior to the advent of their union activities the
employees were performing their work assignments to the
Employer's satisfaction. Accordingly, the Trial Examiner
finds that the Respondent's "real motive" 16 in discharging
Martinez, Moya, Mogollon, and Campos was to discour-
age membership in a labor organization and that by such
discharges the Respondent violated Section 8(a)(1) and (3)
of the Act.
10 The General Counsel produced the testimony of Pomeroy
11 The Respondent's claim that the Acting Regional Director was in
error in vacating the settlement agreement is disallowed. Pioneer Natural
Gas Company, 158 NLRB 1067
12 "The abruptness of a discharge and its timing are persuasive evidence
as to motivation " N LR B v Montgomery Ward & Co, Inc, 242 F.2d 497,
502
As the court said in Angwell Curtain Company, Inc v N L.R B, 192 F 2d
899, 903 (C A 7) "It stretches credulity too far to believe that there was
only a coincidental connection between [the employee's] enthusiastic
solicitation upon behalf of the union on Monday, Tuesday and Wednesday
and the abrupt termination of [the employee ] on Thursday .11
13 "The summariness of the discharge gives rise to a doubt as to the
good faith of the assigned reasons " E Anthony & Sons, Inc v N.LR B, 163
F.2d 22,27 (C A D C).
As was said in N LR B v. Bird Machine Company, 161 F.2d 589, 592
(C A 1), support for a finding of unlawful motivation "is augmented [when ]
the explanation for the discharge offered by the respondent [does ] not stand
up under scrutiny "
14 Failure to give a reason for discharge "alone would be enough to
support an inference that the layoff was discnnnnatory " N L R B v Griggs
Equipment, Inc, 307 F 2d 275, 278 (C A 5)
2. The discharge of Martin Mogollon on
December 1, 1971
While there is conflicting evidence as to what transpired
when Mogollon was discharged on December 1, 1971, the
Trial Examiner is convinced that the Respondent knew
that Mogollon had visited the Union in respect to his
grievance and that Mogollon was discharged because he
was grieving about what he considered an unfair allocation
of overtime.
In August 1971, Mogollon and Campos had engaged in
concerted activities for mutual aid and protection when
they together demanded wage increases of President
Scherzer. Thus it was predictable that Mogollon, when
confronted with his overtime problem, would again seek
Campos' aid. When the nature of Mogollon's grievance
was made known to Campos, Campos became involved
and, at his suggestion, the two employees together visited
the Union with the grievance. The next day the Respon-
dent was apprised of this adventure and at the same time
Mogollon requested an audience with Bertelli to air the
grievance. The meeting which followed between Mogollon
and Bertelli was an extension of the concerted activities for
mutual aid which were commenced when Campos became
Mogollon's ally. Thus, in presenting the grievance to
Bertelli, Mogollon continued his involvement in protected
concerted activities. Moreover, Mogollon's overtime griev-
ance was not of such an isolated character as to be peculiar
only to him for its resolution might well have affected other
employees. Under the circumstances of this case, Mogol-
lon's discharge for protesting a condition of employment
cannot be the basis for a lawful discharge. See The
Barnsider, Inc., 195 NLRB No. 140.17
Even though Mogollon's submission of the grievance was
found to have been void of protected concerted activities,
the Respondent interfered with Mogollon's right to refrain
from union or concerted activities as guaranteed by
Section 7 when it discharged Mogollon for submitting the
grievance. Had Mogollon presented the grievance pursuant
to a union contract's or in concert with another employ-
ee19 his job would have been protected. Hence, to
discharge an employee for submitting a grievance without
the involvement of the union or another employee or
15 See Wiese Plow Welding Co, Inc., 123 NLRB 616; Quest-Shon Mark
Brassiere Co, Inc, 80 NLRB 1144, enfd 185 F.2d 285 (C.A. 2).
16 "... the `real motive' of the employer in an alleged Section 8(a)(3)
violation is decisive " N LR B v. Brown Food Stores, 380 U.S. 278,
287
17 In N L R B. v Guernsey-Muskingum Electric Co-operative, Inc, 285
F 2d 8, 12 (C A. 6), the court said that the fact that employees do not get
together to see their employer "does not negative concert of action. It is
sufficient to constitute concert of action if from all the facts and
circumstances in the case a reasonable inference can be drawn that the men
involved considered that they had a grievance and decided, among
themselves , that they would take it up with management "
is "Submission of grievance based on collective-bargaining agreement
cannot be basis for discharge " N L R B. v. Selwyn Shoe Manufacturing
Corporation, 428 F.2d 217 (C.A. 8) See also N L R B. v Ben Pekin
Corporation, 452 F.2d 205 (C A 7)
19 "The activity of a single employee in enlisting the support of his fellow
employees for their mutual aid and protection is as much 'concerted
activity' as is ordinary group activity The one seldom exists without the
other" Owens-Corning Fiberglas Corporation v. N.L.R B., 407 F 2d 1357,
1365 (C.A 4)
SUCCESSFUL CREATIONS 249
employees is to place a premium upon and discourage the
employee from exercising the right "to refrain" from union
or concerted activities, for the employee, if he wants to
present a grievance without risking discharge, must involve
himself in union or concerted activities. Not only does
Section 7 protect the employee's right to refrain from union
or concerted activities but Section 9(a) makes it clear that
an employee may refrain from such activity by presenting
a grievance to his employer without the intervention of a
bargaining representative even though a bargaining repre-
sentative has been chosen by the employer's employees.
The statute means that the right to refrain from union or
concerted activities is as important as the right to engage in
union or concerted activities. For an employer to discour-
age the exercise of either right is equally objectionable.
Thus, if the statutory purpose is to be implemented, an
employee's job ought not to be placed in jeopardy if he acts
upon his own in submitting a grievance to his employer if
the submission of such grievance via collective action
would be protected. The right "to refrain" becomes
meaningless if the employee must engage in union or
concerted activities in the submission of his grievance in
order to insulate himself against the chance of an
employer's reprisal. The alternative offered defeats the
right. Accordingly, whether Mogollan engaged in protected
concerted activities or not, the Respondent by his
discharge interfered with, restrained, and coerced employ-
ees in rights guaranteed by Section 7 of the Act and
thereby violated Section 8(a)(1) of the Act.20
3. The layoff of Carlos Campos on
February 7, 1972
On this point the General Counsel rebutted any alleged
discriminatory character of Campos' discharge and
clinched the Respondent's economic defense by producing
an investigator for the United States Immigration Service,
James Pomeroy, who testified credibly that on January 17,
1972, he had been informed of the Respondent's contem-
plated layoff of employees on January 18, 1972. Moreover,
there is no credible proof in the record that employees
Wonder and Campos, who occupied similar jobs, were
treated differently. With respect to Campos the Trial
Examiner finds no discrimination. "Discrimination con-
sists of treating like cases differently." Frosty Morn Meats,
Inc. v. N.L.R.B., 296 F.2d 617, 621 (C.A. 5). The
Respondent's motion to dismiss those parts of the
complaint referring to Campos' layoff on February 7, 1972,
is granted.
4. Section 8(a)(1) violations
In the light of the entire record and in the context used
the Trial Examiner finds that:
1. The Respondent, by Supervisor Bertelli's coercive
interrogation addressed to employee Jose Lemos on May 1,
1971, to wit: "Who belongs to the Union?", violated
Section 8(a)(1) of the Act.21
2. The Respondent, by Bertelli's remarks to Campos on
December 1, 1971, to wit: ". . . that he was going to talk to
the owner to raise [his] salary, and when the new machines
arrive, that [he had] experience, he was going to give [him]
a good position, so forget about the Union," promised
Campos a benefit if he abandoned the Union and thereby
the Respondent violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of the Act.
2. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the purpose of the Act for jurisdiction to be
exercised herein.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed them by
Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
4. By unlawfully discharging Oscar Martinez and
Octavio Moya on April 28, 1971, and Martin Mogollon
and Carlos Campos on May 1, 1971, the Respondent
engaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
5. By unlawfully discharging Martin Mogollon on
December 1, 1971, the Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE RECOMMENDED REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and take affirmative action
designed to effectuate the policies of the Act.
It having been found that the Respondent unlawfully
discharged Oscar Martinez, Octavio Moya, Martin Mogol-
lon, and Carlos Campos, and thereby violated Section
8(a)(3) and (1) of the Act, it is recommended that the
Respondent remedy such unlawful conduct. It is recom-
mended in accordance with Board policy22 that Respon-
dent offer all of the foregoing persons immediate and full
reinstatement 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 them whole for any loss of earnings
they may have suffered as a result of the discrimination
against them by payment to each respectively, a sum of
money equal to the amount each would have earned from
the date of his discriminatory discharge to the date of an
offer of reinstatement less net earnings during such period
to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90
NLRB 289, and including interest at the rate of 6 percent
20 Since the remedy in any event would provide for reinstatement and
backpay, the Trial Examiner has made no finding with respect to the
allegations that by discharging Mogollon the Respondent violated Sec.
8(a)(3) and 8(a)(4) of the Act.
21 See N L R B v Super Toys, Inc, 458 F 2d 180 (C A 9)
22 See The Rushton Company, 158 NLRB 1730, 1740
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
per annum, in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.23
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, the Trial Examiner hereby issues the following
recommended: 24
ORDER
Respondent, Successful Creations, Inc., its officers,
agents , successors , and assigns , shall:
Cease and desist from:
(a) Discouraging concerted activities of its employees, or
membership in Textile Workers Union of America,
AFL-CIO, or any other labor organization, by unlawfully
discriminatorily discharging any of its employees or by
unlawfully discriminating in any manner in respect to their
hire or tenure of employment, or any term or condition of
employment.
(b) Unlawfully interrogating its employees regarding
their union activities.
(c) Unlawfully promising its employees a wage increase
or other benefits to refrain from becoming or remaining a
member of the Union, or giving any assistance or support
to it.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist
Textile Workers Union of America, AFL-CIO, or any
other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
concerted activities for the purpose of mutual aid or
protection as guaranteed in Section 7 of the Act, or to
refrain from any or all such activities subject to the union-
security requirements of Section (a)(3) of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Oscar Martinez, Octavio Moya, Martin
Mogollon, and Carlos Campos immediate and full reins-
tatement 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,
discharging, if necessary, any employees hired to replace
them, and make them whole for any loss of pay that they
may have suffered by reason of the Respondent's discrimi-
nation against them, in accordance with the recommenda-
tions set forth in the section of this Decision entitled "The
Recommended Remedy."
(b) Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) 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.
(d) Post at its Northvale plant, Northvale, New Jersey,
copies of the attached notice marked "Appendix. " 25
Copies of said notice, on forms provided by the Regional
Director for Region 22, after being duly signed by the
Respondent's representative , shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.26
(e) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith.27
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act other
than those found in this Decision.
23 Whether the Respondent 's commitment under the settlement agree-
ment satisfies the remedy herein recommended is left for determination at
the compliance stage of this proceeding . See Ace Cab Company, 175 NLRB,
where the Board said that the aborted settlement agreement should not
control or otherwise affect the remedy.
24 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.
25 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board " shall be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals enforcing an
Order of the National Labor Relations Board."
26 In view of the Respondent's large Spanish-speaking complement the
notice shall also be posted in Spanish.
21 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read:
"Notify the Regional Director for Region 22, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith."
SUPPLEMENTAL DECISION
LOWELL GOERLICH, Administrative Law Judge: In the
initial decision in this matter it was found , inter alit, in
respect to employee Martin Mogollon that "[s ]ince the
remedy in any event would provide for reinstatement and
backpay, the Trial Examiner has made no finding with
respect to the allegations that by discharging Mogollon the
Respondent violated Section 8(aX3) and 8(a)(4) of the
Act." Upon exceptions of the General Counsel and the
Respondent the matter has been remanded by the Board
for the purpose of "issuance of a Supplemental Decision
and Order, setting forth appropriate credibility resolutions,
additional findings of fact, and conclusions of law and
recommended remedy and Order based thereon with
respect to the above 8(a)(3) and/or (4) issues concerning
the discharge of Martin Mogollon on December 1, 1971,
and any other issues that he may find flowing therefrom."
Specifically, the Board directed necessary credibility
findings be made between the testimony of "Respondent's
witnesses Bertelli , DiGregorio , Rose, and Scherzer vis-a-vis
that of Mogollon concerning the discharge itself and
between the testimony of Bertelli and employee Campos
concerning their subsequent conversation on the same day
relating to Mogollon's discharge." The later is concerned
with the testimony of Campos referred to in the initial
SUCCESSFUL CREATIONS 251
decision, to wit: "He [Mogollon] go to the Union and
Labor Board and he give the complaint. He suppose to give
the complaint to me [Bertelli ]." Bertelli denied that he had
given such reasons for Mogollon's discharge to Campos.
The former is concerned with Mogollon's testimony, also
referred to in the initial decision, in which Mogollon
quoted Scherzer as saying, "Out, out. You are the union.
You go to the union. No more working, finished," which
was denied by Scherzer and in which Mogollon quoted
Bertelli as saying in reply to Mogollon's inquiry as to why
he was discharged, "Because you went to the union and to
the labor department," which was denied by Bertelli.
In the initial decision it was stated, "While there is
conflicting evidence as to what transpired when Mogollon
was discharged on December 1, 1971, the Trial Examiner is
convinced that the Respondent knew that Mogollon had
visited the union in respect to his grievance and that
Mogollon was discharge because he was grieving about
what he considered an unfair allocation of overtime."
Knowledge of Mogollon's visit to the Union was imputed
to Bertelli because Mogollon had informed DiGregorio
that he had gone to the Union i and it was inferred that
DiGregorio would transmit this information to Bertelli
since he said he would speak to Bertelli about "this." The
conclusion that Mogollon was discharged because "he was
grieving about what he considered an unfair allocation of
overtime" was drawn from Bertelli's testimony "if he
[Mogollon] did believe that he could choose his overtime,
when to work and when not to work on the basis of
overtime, he could find another place, another factory";
DiGregorio's testimony quoting Mogollon, "he [Bertelli]
can't tell him when to work overtime" and quoting Bertelli
in reply, "he [Mogollon] doesn't run the company"; Rose's
testimony quoting Mogollon, "then he [Mogollon] said to
Frank [ Bertelli ] about he could more or less take overtime
when he wanted overtime, and Frank had no right to
stipulate when he was to work overtime"; and Mogollon's
response , "Yes. As I saw there, all the people were let stay.
I also have the right. I was the oldest, more than the
others," to the question, "Mr. Mogollon, do you feel as an
employee you could decide when to and when not to work
overtime at your convenience." Whether Mogollon was
also discharged as claimed by Mogollon because he went
to the Union and the Labor Department is the question
which the Board apparently now wants answered. Resolu-
tion of this question has caused grave concern and after a
review of the record as a whole and a reconsideration of
the demeanor of the witnesses doubts remain. The problem
is compounded by the fact that the Spanish-speaking
witnesses had difficulty in understanding English and
spoke in "broken English." For example the conversation
between Campos, who testified through an interpreter, and
Bertelli was in English which may explain the conflict in
their testimony. Thus it seems reasonable that Campos,
who is considered as an honest, forthright witness, no
doubt was mistaken in attributing to Bertelli the remarks
that Mogollon was discharged because he went to the
Union and the Labor Board.2 In describing the Mogollon
discharge incident Bertelli also appeared to be as an
honest, forthright witness . His demeanor was not that a a
man lying about this incident. Moreover , Bertelli's descrip-
tion of the occurrence is logical and reasonable. An
employee's discharge for the presentation of a grievance is
not an unfamiliar happening in the field of labor relations.
Additionally Bertelli 's testimony is corroborated by Rose
and DiGregorio whose testimonies gave no cogent reason
for disbelief. Scherzer was a less impressive witness.
However, it is unbelievable that an individual of Scherzer's
stature and intellegence as disclosed on the witness stand,
who had been exposed to the consequences of an unfair
labor practice violation, would commit such an obvious
unfair labor practice. As for Mogollon, who had also been
exposed to unfair labor practice proceedings and no doubt
knew the magic words, variations in his testimony from
that of the witnesses above considered are attributed to
afterthoughts or lack of understanding of the words
spoken. It follows therefore that the General Counsel has
not established by a preponderance of the evidence that
Mogollon was discharged for any other reason than that
found in the initial decision, to wit: "Mogollon was
discharged because he was grieving about what he
considered an unfair allocation of overtime."
Accordingly it is recommended that the Board issue the
following: 3
ORDER
It is hereby ordered that the 8(a)(3) and (4) allegations in
the complaint be dismissed.
i DiGregono did not specifically deny that Mogollon had mentioned the
Union although he could not recall "Labor Board" being mentioned In
weighing Mogollon 's veracity , it is significant that there is no credible proof
that Mogollon had taken his overtime grievance to the Labor Board
2 This conclusion is buttressed by the fact that while Mogollon places
himself present during the conversation he does not quote Bertelli as saying
to Campos that he discharged Mogollon because he went to the Union and
the Labor Board
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.