Successful Creations, Inc.

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.