Lustrelon, Inc.

LUSTRELON, INCORPORATED Lustrelon, Incorporated and Francisco Rodriguez. Case 22-CA-7549 May 25, 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESDALE On January 24, 1978, Administrative Law Judge Donald R. Holley issued the attached Decision in this proceeding. Thereafter, both the General Counsel and Respondent filed exceptions and supporting briefs,' and Respondent filed a reply brief to the Gen- eral Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions3 of the Administrative Law Judge, to modify his remedy, 4 and to adopt his recommended Order. The Administrative Law Judge concluded, inter alia, that the General Counsel has failed to offer suf- ficient evidence to prove, by a preponderance thereof, that Respondent terminated the employment of Union Steward Rodriguez' brother-in-law, George Castro, for discriminatory reasons in violation of Sec- tion 8(a)(3) and (1) of the Act. Contrary to our dis- senting colleague, we find that the record supports the Administrative Law Judge's result on this point. The essential facts of Castro's employment are not in dispute. Shortly after the departure of Receiving Department Supervisor Cascante on an extended 6- I Respondent has requested oral argument. This request is hereby denied, as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. 2 Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 3 We agree with the Administrative Law Judge that Respondent through its March 17 letter sought unilaterally to remove Rodriguez as the union steward. In view of the Administrative Law Judge's credibility findings, the record fully supports such a finding. In reaching this result, we do not, how- ever, rely on the Administrative Law Judge's statement that "Rodriguez was justified in believing upon receipt of the letter that Respondent rather than the Union was removing him from his position as union steward." Rodri- guez' belief in this regard is irrelevant with respect to the fact of unilateral removal. 4The Adrministrative Law Judge, citing Florida Steel Corporation, 231 NLRB 651 (1977), inadvertently specified interest to be paid at 7 percent per annum: however, there the Board stated that interest will be calculated ac- cording to the "adjusted pnme rate" used by the U.S. Internal Revenue Service for interest on tax payments. week absence from work in January 1977,5 Rodri- guez, then working in the receiving department, ad- vised Plant Manager Weil that additional help was needed in that department. At Rodriguez' request Weil agreed to hire Castro, who at that time was in a layoff status from his regular job with a different em- ployer. Weil made it clear to Rodriguez at that time that Castro's employment was only temporary and would terminate upon the return of Cascante from his leave of absence. Cascante returned to work during the last week in February, and Castro's temporary employment was terminated at the end of the first week in March. Thus, Castro's employment history with Respondent was basically just what it was un- derstood to be at the time of his hire. Nevertheless, Member Jenkins would find that Castro's termination was an act of retaliation against Rodriguez for helping certain employees secure pay raises in February. In support of this conclusion, he adverts to a comment by Supervisor Cascante that Castro was discharged to get back at Rodriguez and to certain testimony that there were available jobs in certain new departments and in Castro's old depart- ment at the time of his discharge. However, these var- ious matters taken in context do not support the con- clusion our dissenting colleague would have us reach. In the first place, Rodriguez' role with respect to the February raises was not one likely to create much, if any, management antipathy toward him. In fact, he did little more in essence than remind management to make certain compensatory pay raises which indeed it was preparing to make at the time of his reminder. More specifically, as a consequence of an increase in the Federal minimum wage, certain more senior em- ployees were no longer receiving more in pay than their juniors. This situation had arisen before as a consequence of an increase in the Federal minimum wage, and though Respondent had no obligation un- der its bargaining agreement to grant compensatory increases to the senior employees, its long-established practice had been unilaterally to do so. In any event, certain senior employees came to Rodriguez, who was the union steward, complaining that they had not re- ceived their compensatory pay raises, and he in turn raised the matter in a meeting with management rep- resentatives. Rodriguez' testimony indicates that at that time Respondent had already begun the paper- work preliminary to making the wage adjustments. Sometime later three senior employees complained to Rodriguez that their adjustments had been inad- equate. He presented this complaint to management at another meeting at which he also objected to the conduct of some supervisors, stating that Respondent could get more work out of the employees if the su- All dates hereinafter are 1977, unless otherwise indicated. 242 NLRB No. 56 561 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pervisors treated them better. The foregoing is, inso- far as the record indicates, the extent of Rodriguez' activities as a union steward in this episode. Clearly, they cost Respondent nothing-at least nothing that Respondent was not already willing to pay as a mat- ter of continuing practice-and otherwise those ac- tivities seem wholly unexceptional. 6 Consequently, Rodriguez' conduct in regard to the wage increases was not of a kind that would be expected to evoke recriminatory action from Respondent, and a con- trary conclusion is unwarranted by the evidence.7 Further, there is nothing in the record to suggest that the termination of Castro would be a plausible way of getting back at Rodriguez for his union activities. Thus, at the very outset the position of the dissent is seriously undermined by the wholly unsubstantial na- ture of the alleged cause of Castro's termination. Second, the dissent in support of its position ad- verts to a credited portion of Rodriguez' testimony to the effect that Rodriguez was told by Cascante that Castro's employment was being terminated "to get back" at Rodriguez. Indeed, the Administrative Law Judge found this credited passage from Rodriguez' testimony to be the only significant evidence in sup- port of the allegation that Castro was discriminatorily terminated. As indicated, the Administrative Law Judge promptly stated his unwillingness to place any 6 The Administrative Law Judge states that Rodriguez testified that at the second meeting Respondent's Plant Manager Weil said to him, "You cost me $5,000 already. What do you want me to do?" The record shows, however, that Rodriguez testified that Weil told him, "It cost me $5,000 already, Frank, what do you want me to do?" (Emphasis supplied). Nevertheless, our dissenting colleague reaches just such a conclusion and attempts to buttress it by reference to a comment made by Assistant Plant Manager Riccardi to Rodriguez that Rodriguez "was making too many waves and [Riccardi] was going to fit [Rodriguez] in cement shoes." We note, however, that Riccardi's comment to Rodriguez was made prior to the im- plementation of Respondent's decision to adjust the wages of some of the more senior employees, in accordance with its longstanding practice of doing so. Thus, Riccardi's comment cannot feasibly be construed as evidence of recriminatory action against Rodriguez for his role-a very minor role at that-in Respondent's granting of these wage increases. Moreover, the rec- ord fails to show that Riccardi played any part in Respondent's decision to grant the wage increases, thus further weakening our dissenting colleague's contention that Riccardi's comment was recriminatorily motivated by what- ever role Rodriguez may have played in Respondent's decision to grant the wage increases. Finally, the record establishes that Riccardi's comment was made in reference to Rodriguez' activities on behalf of employee Juan Cas- tro, not Rodriguez' brother-in-law, George Castro, Thus, the facts of this case fail to establish any casual connection between Rodriguez' minor role in Respondent's decision to grant the wage increases, Riccardi's comment to Rodriguez, and the termination of George Castro's temporary term of em- ployment. Therefore, while it is clear that Riccardi's comment is evidence of hostility on the part of Respondent towards Rodriguez, it is equally clear that the hostility toward Rodriguez evidenced by Riccardi's comment had no bearing on the scheduled termination of Castro's temporary term of employ- ment. "In crediting this aspect of Rodriguez' testimony, the Administrative Law Judge states that Cascante denied that he told Rodriguez that Respondent terminated Castro to get even with Rodriguez. The record establishes, how- ever, that Cascante made no such denial. Cascante's testimony on this issue is as follows: Q. (Respondent) Before you left on vacation] did anyone talk to you about hiring a Mr. Castro? A. (Cascante) No. undue emphasis upon Cascante's remark because it was clear to him, as it is to us, that Plant Manager Weil, not Cascante, directed the termination of Cas- tro's temporary employment and that the terms of that employment, including the scheduled termina- tion thereof, had been established and agreed upon between Weil and Rodriguez 6 weeks earlier, while Cascante himself was on vacation in Chile.9 It is clear Q. When you came back, was a Mr. Castro working there? A. I saw him there, he was the brother-in-law. Q. And when you came back, did you thereafter lay off Mr. Castro? A. Not immediately. When I noticed that there [were] too many of us in the plant, I spoke to the manager [to see] if we could send him to another building. That is the reason why I gave him the layoff. Because there were too many. Q. Did anybody tell you to lay him off because he was Rodnguez' brother-in-law? A. No. Q. Did anybody tell you to lay him off because Rodriguez was in the union? A. No. The reason was because there were too many in the building. Q. Did you ever hear anyone say that they wanted to lay off Mr. Castro for anything to do with Mr. Rodriguez. A. No. Q. (General Counsel) Mr. Cascante, you stated that you had a con- versation with Mr. weil in which you requested Mr. Weil to transfer Mr. Castro to another department? A. Yes. Q. Were employees being hired in other departments? A. No, that I don't know. Q. Do you know if any new departments were being opened? A No, my building is completely separated from the others. Thus, having been asked, Cascante denied ever having been told to lay off Castro because of Castro's relationship to Rodriguez or because of Rodri- guez' union activities. However, not having been asked, Cascante never de- nied telling Rodriguez that Castro was being terminated "to get back" at Rodriguez. Furthermore, even an affirmative response to such a question, had it been asked, would not have been inconsistent with Cascante's earlier denials that he had been told by anyone else that Castro was to be terminated to get back at Rodriguez. In any event, we find that on the strength of this record, Cascante's remark to Rodriguez was, at most, nothing more than Cascante's own personal opinion as to why Castro was being terminated-an opinion in no way based on any guidance or information given to him by Weil or any other official of Respondent. As such, it was quite properly discounted by the Administrative Law Judge in his evaluation of evidence in support of the allegation that Castro was discriminatorily terminated. 9 Our dissenting colleague contends that, in discounting the significance of Cascante's remark to Rodriguez that Castro was being terminated "to get back" at Rodriguez, the Administrative Law Judge ignored Cascante's testi- mony that he discussed the termination with Plant Manager weil. Our col- league further contends that, having ignored such record evidence that Cas- cante was involved in "management discussions" leading to Castro's termination, the Administrative Law Judge failed to draw an inference that Cascante was privy to the "real reasons" for the termination. The sum total of Cascante's testimony about his discussion with Weil regarding Castro's termination is that which is contained in the preceding footnote. It shows that Cascante recognized that Castro was not needed in the department (understandably, since Castro was hired only as a temporary fill-in during Cascante's absence), that Cascante attempted to have Castro transferred to some other department, and that Weil apparently chose to abide by his earlier decision to terminate Castro's temporary employment upon Cas- cante's return-a decision in which, as seen, Cascante played no part what- soever. Nevertheless, our dissenting colleague suggests that in adopting this view of the facts, we are like someone who attempts to understand and appreciate a three-act play by viewing only acts I and Ill. But we find that the employment drama of George Castro is a play set in two-not three- acts. In act I Castro is hired for a temporary term of employment to coincide with the temporary absence of Fernando Cascante. In act II Cascante re- turns. and Castro departs. The final curtain falls; the play is over. Although Cascante had a bit part in act II, he had no role in the production or direc- tion of the play itself. 562 LUSTRELON. INCORPORATED from the above that the decision to terminate Castro's temporary employment was made simultaneously with the decision to initiate it; that Cascante himself, on vacation in Chile at the time these simultaneous decisions were made, played no part therein: that Castro's employment in fact terminated essentially when it was initially scheduled to terminate, upon Cascante's return; and that Cascante's remark to Rodriguez as to why Castro was being terminated amounted to nothing more than Cascante's unin- formed and unsupported personal opinion, properly discounted as such by the Administrative Law Judge. Third, in support of his position that Castro's ter- mination was unlawful, our dissenting colleague ad- verts to certain testimony of Rodriguez that just prior to Castro's termination Respondent opened up two new departments, which required 25 new employees. Respondent categorically denied the truth of such as- sertions, and the Administrative Law Judge was "un- willing to credit" Rodriguez' sweeping assertions of two new departments and 25 new employees around the time of Castro's termination. Nevertheless, the dissent contends an inference adverse to Respondent should be drawn from its failure to produce business records in support of its denial of Rodriguez' asser- tion. But, as counsel for the General Counsel herself notes in her brief, she had subpenaed the relevant documents-and it appears that the subpena was complied with-yet she failed to produce the docu- ments to support Rodriguez' claim concerning new departments and employees.'0 Consequently, if an ad- verse inference based on the nonproduction of busi- ness records is to be made, the record would seem to support making that inference against the General Counsel's and dissent's position, not against that of Respondent. But we need not go so far. The Adminis- trative Law Judge in effect discredited Rodriguez' tes- timony about two new departments and 25 new em- ployees, and in the absence of any cogent reasons for doing otherwise, we are content to leave the matter there. Finally, our dissenting colleague also refers to an "admission" on the part of Cascante, to the effect that Respondent needed additional workers in the receiv- ing department, as undercutting Respondent's as- serted lawful reason for terminating Castro's employ- ment. The "admission" to which our colleague refers appears in Rodriguez' testimony on direct examina- tion, in which Rodriguez asserts that Cascante told him, "They don't see why they should give him lay- off because they need another guy in there anyway." Assuming, arguendo, that this hearsay passage from 10 In her bnef, counsel for the General Counsel noted that she did subpena the documents in question, but did not examine them and was unaware of their contents. Rodriguez' testimony can be construed as an admis- sion on the part of Cascante, and further assuming. arguendo, the accuracy of the contents of this passage as to a need for an additional employee in the receiv- ing department, this evidence must necessarily be evaluated in light of Respondent's credited explana- tion that the new employee who was hired into the receiving department shortly after Castro's termina- tion was an undercover private detective who was en- gaged surreptitiously to investigate suspected thefts in that department. Our dissenting colleague's doubt of the truth of that explanation is not an adequate ground for upsetting what are in effect the Adminis- trative Law Judge's credibility resolutions with re- spect to this matter. In summary, it appears that Castro was terminated essentially when he was originally scheduled to be at the time of his hire, that Respondent's practice and not Rodriguez' activities brought about the wage in- creases purportedly causing Castro's termination, and that the evidence is uncertain at best concerning the continued availability of work for Castro at the time of his discharge. Consequently, contrary to our dis- senting colleague, we affirm in these circumstances the Administrative Law Judge's conclusion that the General Counsel has failed to prove by a preponder- ance of the evidence that Castro was unlawfully ter- minated. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that Respondent, Lustrelon, Incorporated, Edgewater, New Jersey, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges that the discharge of George Castro was unlawful. MEMBER JENKINS, concurring in part and dissenting in part: Like my colleagues, I adopt the Administrative Law Judge's findings that Respondent violated the Act by threatening Union Steward Rodriguez, by at- tempting to oust Rodriguez as steward, and by dis- charging Rodriguez, all in retaliation for Rodriguez' persistence in pressing employee grievances. Unlike my colleagues, however, I do not agree with the Ad- ministrative Law Judge that the General Counsel failed to prove by a preponderance of the evidence that Respondent laid off Rodriguez' brother-in-law, George Castro, as part and parcel of its effort to re- 563 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taliate against Rodriguez and to dissuade him from his union activities." In brief, the record shows that Castro was hired in January 1977 after Rodriguez, who had not yet as- sumed the duties of union steward, approached Plant Manager Weil and informed Weil that Castro was his brother-in-law and was in need of a job because he had been laid off by another employer. Weil offered Castro a position as a receiving clerk in Respondent's shipping and receiving department pending the re- turn of Fernando Cascante, the department supervi- sor, from an extended vacation in Chile. Castro was laid off on March 4, 1977, allegedly because Cascante's return to work meant that Re- spondent no longer had need of Castro's services. The layoff followed by a day or two a grievance meeting between Rodriguez and Weil during which Weil com- plained that Rodriguez, by his diligence in pressing employee grievances, "cost me $5,000 already." As found by the Administrative Law Judge, at the close of this conversation Weil remarked that he intended to lay off some employees, starting with the receiving department, where, as Weil carefully pointed out, Castro and Rodriguez would be the first to go, as they had the least seniority. However, Rodriguez re- sponded that under the contract as union steward he could not be among the initial layoffs. Shortly thereafter, according to Rodriguez' cred- ited testimony, he was approached by Supervisor Cascante, who told him that Respondent intended to lay off Castro even though Castro was a good worker and even though "they need another guy in there anyway." Cascante further explained that Respon- dent was laying off Castro "go get back" at Rodri- guez. After Castro was laid off on March 4, Rodri- guez sought out Cascante and Weil and asked why Respondent did not transfer Castro to another de- partment.'2 According to Rodriguez, Weil simply walked off when asked about the possibility of trans- ferring Castro. Rodriguez further testified that about the time of Castro's layoff Respondent was in the pro- cess of staffing two new departments and had already hired approximately 25 new employees by the end of February. In addition, the record shows and the Ad- ministrative Law Judge found that shortly after Cas- tro was laid off Respondent hired Lopez Chavez and assigned Chavez to the receiving and shipping depart- " It is, of course, well settled that a layoff or other adverse job action for such a motive is violative of the Act. See, generally, Vanella Buick Opel, Inc., 191 NLRB 805, 815 (1971); American Grinding & Machine Co., 150 NLRB 1357, 1370 (1965). 12 The testimony of Respondent's own witnesses established that in the past Respondent has attempted to transfer employees rather than lay them off. The record further establishes that most of the work performed at the plant requires little in the way of skills or training. Moreover. Weil conceded that Castro was such a good employee that he would have been offered permanent employment had a position "been open." ment, where he performed work previously per- formed by Castro. In declining to find a violation predicated on Cas- tro's layoff, the Administrative Law Judge reasoned that Respondent knew when it hired Castro that he had been laid off by another employer and therefore offered him a job that would last only until Cascante returned to work. The Administrative Law Judge largely discounted Cascante's statement to Rodriguez that the Company was going to lay off Castro "to get back" at Rodriguez. In so doing, the Administrative Law Judge concluded that Weil actually ordered the layoff and that the layoff was consistent with the tem- porary nature of Castro's job. Finally, the Adminis- trative Law Judge concluded that testimony that Re- spondent opened two new departments and hired 25 new employees-yet refused to transfer Castro-was undercut by the failure of either Respondent or the General Counsel to place in evidence "the best evi- dence"; i.e., Respondent's books and records. And the Administrative Law Judge accepted Respondent's explanation that Chavez, hired to do Castro's work in the receiving and shipping department, was employed not because of Respondent's work requirements, but rather because Respondent had suffered losses in that department, and Chavez was a licensed detective. In my view, the Administrative Law Judge's treat- ment of the Castro layoff is a classic case of missing the forest for the trees." In the first place, whether or not Castro was originally hired on the understanding that his job in receiving and shipping was temporary and might end with Cascante's return, Cascante in fact returned from vacation in late February, yet Cas- tro was not terminated until after Rodriguez aroused Respondent's animus by securing wage adjustments for employees in early March. Moreover, the connec- tion between Rodriguez' efforts on behalf of employ- ees and the precipitous termination of his brother-in- law is hardly speculative or conjectural.' 4 Even an obtuse employee would be unlikely to miss the import II My colleagues' approach to this case is similar to the one taken by the Administrative Law Judge and is just as wrong. The burden of their argu- ment appears to be that Castro's termination could not have been unlawfully motivated and violative of the Act because his "employment history ... was basically just what it was understood to be at the time of his hire." This reasoning, although neat, is totally unpersuasive. Thus, using the same logic, one might as well argue that to understand and appreciate a three-act play one need only view the opening scene of act I and the closing scene of act Ill. 14 Unfortunately, the same cannot be said for the majority's totally unwar- ranted surmise that "Rodriguez' conduct in regard to the wage increases was not of a kind that would be expected to evoke recriminatory action from Respondent .... " Plainly enough, Rodriguez was a thorn in Respondent's side, not only because he pressed Respondent on the matter of wage adjust- ments but also because of his enthusiastic advocacy of employee grievances. Thus the Administrative Law Judge found, and my colleagues concede, that Assistant Plant Manager Riccardi told Rodriguez he "was making too many waves and he was going to fit him in cement shoes." My colleagues, however. discount the significance of this as an expression of Respondent's hostility toward Rodriguez with the observation that there is no evidence of a "causal connection" between Rodnguez' conduct, Riccardi's remarks, and George 564 LUSTRELON, INCORPORATED of Weil's comments to Rodriguez, coupling as they did Weil's chagrin over paying wage adjustments with the prediction that there would be layoffs in re- ceiving and shipping, where, as he pointed out, Rod- riguez and Castro were the least senior workers. Any remaining doubt about Respondent's motivation is dispelled by Foreman Cascante's admission that there was work remaining for Castro in receiving and ship- ping at the time of the layoff.1 Additionally, the Administrative Law Judge erred in his treatment of the evidentiary issue raised by Rodriguez' testimony that Respondent, at approxi- mately the same time as it terminated Castro, was in the midst of staffing two new departments. Contrary to the Administrative Law Judge's suggestion, Re- spondent's failure to introduce its own business rec- ords to support its denial of Rodriguez' testimony plainly warrants an inference that production of those records would reveal facts inconsistent with Respon- dent's position.' 6 And the Administrative Law Judge compounded his error by overlooking or ignoring Foreman Cascante's testimonial admission that shortly after Castro's layoff Respondent assigned new help to the receiving and shipping department be- cause Cascante "had a lot of work that had to be done."' In short, all the relevant facts and circumstances surrounding Respondent's decision to lay off Cas- tro-including Respondent's animus toward Rodri- guez, the timing of the layoff, and the admission of Respondent's supervisory personnel at the time of the layoff and thereafter at the hearing-plainly demon- Castro's termination. In short, the majority again proves the wisdom of the adage that you can lead a horse to water, but you cannot make it drink. Finally, my colleagues intimate they would not find a violation here in part because it strikes them that Respondent would not have retaliated against Rodriguez by terminating the employment of his brother-in-law. To state this proposition is sufficient to rebut it. 11 In discounting the significance of Cascante's statement to Rodriguez, the Administrative Law Judge ignored Cascante's testimony that he discussed the layoff with Plant Manager Weil. Having ignored the record evidence that Cascante was involved in management discussions leading to Castro's layoff, the Administrative Law Judge failed to draw the inference, an inference plainly reasonable under all the circumstances, that Cascante was privy to the real reasons for the layoff, reasons which he thereafter accurately re- ported to Rodriguez. See Poloron Products of Mississippi, Inc., 217 NLRB (1975); West Coast Casket Co., 192 NLRB 624 (1971). The Administrative Law Judge also failed to consider that as foreman of the receiving and shipping department, Cascante was in the best possible position to assess Respondent's work requirements in that department, and, accordingly, Cascante's admission to Rodriguez that "they need another guy in there anyway" undercuts Respondent's asserted reason for the layoff. i' See Pepsi Cola Bottling Company, 187 NLRB 15, 19 (1970); L B. Foster Company, 168 NLRB 83, 86 (1967). i7 Nor is the damage to Respondent's case repaired even accepting, argu- endo, Respondent's explanation that Chavez, the individual assigned to do Castro's job, was a detective. Thus it may have been a happy circumstance for Respondent that Castro's job was available when the need for surveil- lance over employees in the receiving and shipping department became ap- parent in early March. This does not, however, detract from the record evidence that at the time of the layoff, and thereafter, there was work avail- able in the department, and Respondent needed "another guy in there any- way.. strate the pretextual nature of the asserted reasons for the layoff and reveal the unlawful real reason for Re- spondent's action, to wit, Respondent's desire to in- timidate Rodriguez and to dampen his enthusiasm for union activities. Given this record, the Administrative Law Judge's conclusion that the General Counsel failed to meet his burden of proof, as well as my col- leagues' acceptance of that conclusion, is not merely unwarranted, it is incomprehensible. Accordingly, I must dissent. DECISION STATEMENT OF THE CASE DONALD R. HOLLEY, Administrative Law Judge: Upon a charge filed by Francisco Rodriguez (herein called the Charging Party and/or Rodriguez) on March 23, a com- plaint was issued on May 6, 1977.' Summarized, the complaint alleges that Lustrelon, Incor- porated, (herein called Respondent) violated Section 8(a)(I ) of the Act by threatening employees with discharge if they continued to press grievances and by notifying Rodriguez by letter that he could no longer act as union steward. It further alleges that Respondent violated Section 8(aX I) and (3) of the Act by discharging employees Rodriguez and George Castro because they joined or assisted the Union or engaged in other protected concerted activities.' Respon- dent's answer denied the commission of the unfair labor practices alleged. The case was heard before me in Newark, New Jersey, on August 4 and 5, and posthearing briefs were filed by Respondent and the General Counsel. Upon the entire rec- ord and the briefs of the parties, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION The complaint alleges and the answer admits that Lustre- Ion, Incorporated, maintains its main office and principal place of business at I River Road, Edgewater, New Jersey, where it is engaged in the manufacture, sale, and distribu- tion of lamps and related products. During the 12 months preceding issuance of the complaint, it purchased from sup- pliers located outside the State of New Jersey and sold and delivered to purchasers located outside the State goods and materials valued in excess of $50,000. It was admitted, and I find, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. ' All dates are in 1977 unless otherwise stated. 2 The General Counsel amended the complaint at the opening of the hear- ing to allege that Joe Martinez. Fernando Cascante, and Gabriel Riccardi were at all times material agents of Respondent and supervisors within the meaning of Sec. 2(11) of the Act and to allege that in February or March Riccardi threatened Rodriguez with reprisal if he continued to press grinev- ances. 565 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. THE lABOR ORGANIZATION It was admitted, and I find, that Amalgamated Local 298, AFL-CIO (herein called the Union), is a labor organi- zation within the meaning of Section 2(5) of the Act. 111. THE ALI(iEDi) UNFAIR LABOR PRACTICES A. Issues The issues posed by the complaint in its final amended form are: I. Whether Plant Manager Walter Weil warned employ- ees in late February that they would be laid off if they continued to present and press grievances pursuant to a collective-bargaining agreement. 2. Whether Assistant Plant Manager Riccardi threatened Francisco Rodriguez with reprisals if he continued to pre- sent and press grievances pursuant to a collective-bargain- ing agreement. 3. Whether Respondent terminated George Castro in violation of Section 8(a)(3) of the Act. 4. Whether Respondent violated Section 8(a)(1) of the Act by informing Rodriguez by letter dated March 17 that he could no longer act as union steward. 5. Whether Respondent terminated Francisco Rodriguez in violation of Section 8(a)(3) on March 21, 1977. B. Facts Respondent employs approximately 120 employees at its Edgewater, New Jersey, lamp plant. Amalgamated Local 298, AFL-CIO, represents its production and maintenance employees, and the parties were, at all times material in this case, signatory to a subsisting collective-bargaining agree- ment. The record reveals Respondent's employees are super- vised by, inter alia, the following: Harold Schiller, pres- ident; Walter Weil, vice president and plant manager; Da- vid Goldberg, vice president; Gabriel Riccardi, assistant plant manager; Fernando Cascante, supervisor of the re- ceiving department; and Jose Martinez, supervisor of the lamp department Rodriguez was originally employed by Respondent on January 5, 1976. He worked from that time until May II11, 1976, in the receiving department under the supervision of Foreman Cascante. While Rodriguez testified at the hear- ing that he was laid off by Respondent on May 11, 1976, I credit the testimony of Weil and office employee Lillian Cupelli, which reveals he quit his job to open his own busi- ness.4 In December 1976 Rodriguez contacted Cascante, seek- ing reemployment. Weil credibly testified that Cascante It was stipulated, and I find, that the named individuals are supervisors and agents of Respondent within the meaning of Sec. 2(1 1) of the Act. Addi- tionally, Respondent admits, and I find, that Fay Raphael, Respondent's controller, acted as Respondent's agent when she signed a letter in evidence as Joint Exh, 2. 4 Both Weil and Cupelli testified that Rodriguez quit but requested that Respondent report the termination as a layoff to enable him to collect unem- ployment. Cupelli, in particular, was a more impressive witness than Rodri- guez, and company records prepared by her contemporaneously with the event support her testimony. consulted him after Rodriguez called. and he told Cascante they could not use another employee at that time. Weil further testified that Cascante subsequently discussed the situation with him a second time, indicating that he [Cas- cante] planned to be off work for an extended period start- ing in mid-January and that he felt Rodriguez could satis- factorily perform his work while he was gone. Weil then accepted Cascante's recommendation that Rodriguez be hired to perform Cascante's work in his absence, and Rod- riguez was rehired as assistant receiving clerk on January 4, 1977. When Rodriguez was rehired by Respondent there was some question as to whether his seniority should date from the original date of hire or the most recent date of hire. Cupelli raised the question when the employee reported and indicated Weil might give Rodriguez seniority from his original date of hire.' When Rodriguez received his first pay after rehire, he noted that union dues had been deducted and that he was given Blue Cross-Blue Shield coverage by Respondent. As the subsisting agreement between Respon- dent and the Union provides employees must join the Union 31 days after hire and that Blue Cross-Blue Shield coverage will be provided after the employee has worked for Respondent for I year, I infer that Respondent decided in early January to compute Rodriguez' seniority from his original date of hire. Cascante left for Chile on January 18 and remained off the job until the end of February. Rodriguez testified that about a week after Cascante left he informed Weil they needed help in the receiving department, and he recom- mended that Weil hire his brother-in-law, George Castro, who was on layoff from United Parcel Service (U.P.S.). Weil accepted the recommendation, indicating Rodriguez could bring his brother-in-law in at $3 per hour to assist in the receiving department until Cascante returned to work. In early February, the then acting union steward at the plant, Emilio Henrique, a/k/a Cottini, asked Rodriguez if he would accept the union steward position. At or about the same time Henrique circulated a petition to name Rod- riguez steward, and some 62 employees allegedly signed the petition. Rodriguez accepted the position and notified Weil on or about February 4 that he had been selected union steward and that Henrique would be his assistant. Addi- tionally, Rodriguez contacted Peter De Carlo, a Union rep- resentative, and the latter came to the plant, inspected the petition, and telephoned the Union in Rodriguez' presence to inform it that Rodriguez was the official union steward at the plant.6 At the time Rodriguez was appointed union steward, the record reveals, some of Respondent's older employees were dissatisfied with the pay they received, as the Federal mini- 'The subsisting collective-bargaining agreement between Respondent and the Union (J. Exh. I) reveals an employee loses his seniority by, inter alia, quitting or being in layoff status for more than 6 months. Rodriguez was not contractually entitled to senionty from his original date of hire when rehired. 6 De Carlo, who testified at the hearing, admitted Rodriguez told him at the plant in February that the employees had selected him as their steward, but he denied he saw a petition or indicated that Rodriguez was appointed by the Union as steward. De Carlo exhibited considerable animosity towards Rodriguez, and his demeanor while on the witness stand was most unimpres- sive. I credit the testimony of Rodnguez, which serves as the basis for the finding set forth above. 566 LUSTRELON. INCORPORATED mum wage had changed January , and new hires were coming into the plant at rates of pay which equaled those of older employees. While the collective-bargaining agreement did not obligate Respondent to effectuate a pay adjustment, Rodriguez discussed the complaint of employees with Weil, and appropriate adjustments were made on or around March 2. Thereafter, several employees claimed their pay was not adjusted sufficiently, and Rodriguez brought such complaints to Weil's attention. During discussion of the lat- ter alleged individual adjustment complaints, Rodriguez testified, Weil told him, "You cost me $5,000 already, what do you want me to do." Rodriguez thereupon responded that supervision was not treating the employees fairly, and Weil agreed, indicating he planned some supervisory changes. During the same conversation, Weil stated he in- tended to lay off some employees, starting with the receiv- ing department, where Castro and Rodriguez would be laid off, as they had the least seniority. Weil then explained that he had been watching Rodriguez, liked his work, and saw he could communicate with people. He further indicated that while he would lay Rodriguez off, he would like to bring him back as a supervisor or as an assistant supervisor when an opening occurred. Rodriguez informed Weil that he liked his present job and did not want to be a supervisor. Additionally, he informed Weil he could not lay him off, because he was the union steward.' Shortly after Rodriguez and Weil had the layoff-supervi- sor discussion, Weil visited the printshop, where Henrique worked. Rodriguez testified without contradiction that he then asked Weil if he intended to lay him off because he was making too many waves. Weil replied, "No," that he was serious about wanting to make him a supervisor. Hen- rique entered the conversation by stating he did not think what he was trying to do to Rodriguez was right, and Weil informed Henrique that he had better be careful, that he should know where he stands with the Company. B Rodriguez testified that Assistant Plant Manager Ric- cardi threatened him while he was representing an em- ployee who had allegedly injured his eye on the job in mid- February. The employee, Juan Castro, appeared at the plant on Monday, February 14, and claimed he had gotten metal in his eye while operating a machine the preceding Friday. He was sent to the company doctor, who concluded the employee had a sty and that there was nothing in his eye. The employee returned to the plant, indicating he could not work and desired to see his own doctor. Rodri- guez testified that 8 days later he approached Riccardi to discuss a rumor that Respondent intended to terminate Castro. Rodriguez claims that Riccardi then told him he was making too many waves and he was going to fit him in cement shoes. Rodriguez testified that his reply was to the effect that the Mafia wasn't what it used to be and that the While Rodnguez and Well descnbed the conversation similarly, I base my findings upon Weil's testimony, as Rodriguez erroneously placed the conversation as having occurred by February, and he erroneously testified that Henrique was a witness to the conversation. In his preheating statement Rodriguez indicated he told Henrique about the conversation that aftennoon. Rodriguez admitted that Weil appeared to be serious when offering him a supervisory position. i Weil did not deny the remarks attributed to him. As Hennque was fired a short time later for falsifying entries on his timecard, I infer Well was indirectly making reference to Henrique's timecard activities at the time. conversation then turned to discussion of whether Respon- dent had goggles which the machine operators could use. Riccardi denied that Rodriguez discussed the Castro situ- ation with him at any time and claimed the "cement shoes" comment was made under different circumstances. His ver- sion was that Rodriguez and several other persons were in his (Riccardi's) office having coffee one day when Rodri- guez informed him that the western New York Mafia had taken over the shop. Riccardi claims he replied: "Franky, you may be sure if you ever do something to me, do it right. Then I don't get out of the floor because if I get out the floor you done something to me, I make cement shoes out of you." I credit Rodriguez.9 On Friday, March 4, Rodriguez' brother-in-law, George Castro, was laid off. Rodriguez testified he discussed the layoff with his immediate supervisor, Cascante, and the lat- ter told him he had been instructed to lay Castro off at the end of the first week in March, but he didn't want to do it because Castro was a good worker, and they could use him in the receiving department. Rodriguez further testified Cascante told him he felt the Company was laying Castro off to get even with Rodriguez.'° During their discussion concerning Castro, Rodriguez asked Cascante if it was pos- sible to transfer Castro to another department rather than lay him off. Cascante told Rodriguez he would have to dis- cuss the matter with Weil. Rodriguez then went to Weil, who told him he couldn't transfer Castro to another depart- ment. If Rodriguez interpreted Riccardi's comment concerning "cement shoes" as a warning that he should temper his steward activities, the record reveals he ignored the com- ment. Subsequent to his activities in the Castro matter, he testified, he attempted through Weil to obtain payment of the doctor and hospital bills incurred by a female employee who had recently had a baby. Weil referred him to the Union, as the employee was covered by its plan rather than Respondent's Blue Cross-Blue Shield plan. Thereafter, in early March, Rodriguez and several other employees pro- tested when assigned to unload a truck carrying chain used in the manufacture of lamps because the boxes of chains were not palletized. The employees, including Rodriguez, refused to unload the truck, and a foreman and the driver unloaded the truck. At the time that Rodriguez and others refused to unload the truck mentioned above, Foreman Cascante informed Rodriguez that he could no longer talk to employees with- out permission. Cascante explained that he had been in- formed that an employee having a grievance would ask his supervisor for permission to talk to the steward, that the grievant's supervisor would discuss the matter with Ric- cardi, and that Riccardi would then contact the steward's foreman, Cascante, who, together with Riccardi, would de- 9 While Riccardi denied that Rodriguez had pressed any grievances involv- ing Juan Castro with him. he did not deny that Rodriguez attempted to cause Respondent to supply machine operators with goggles. This, coupled with the fact that Rodnguez was thoroughly familiar with Castro's situation, convinces me that h attempted to assist the employee and that Riccardi's denial that Rodriguez assisted Castro and his denial that he threatened Rod- riguez are not credible. 1' Cascante denied he told Rodriguez the Company laid Castro off to get even with him (Rodriguez). I credit Rodnguez 567 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cide whether the steward should be given permission to go to the grievant's workplace. Apparently a week after the chain truck incident, Rodri- guez and another employee refused to unload a truck loaded with lampshades. On that occasion Weil went to the work location and told Rodriguez they had been asked to unload a company truck, and if they refused to perform the work task, they would be fired. They unloaded the truck. On March 8 Emilio Henrique, the assistant union stew- ard, was fired for making false entries on his timecard. Rod- riguez discussed the reason for the termination with Weil, who originally told him he did not have to discuss the situ- ation with him, but then indicated that he had been fired because he quit work earlier than his timecard indicated and that his timecard manipulations had become common knowledge throughout the plant and could no longer be ignored. Rodriguez testified without contradiction that he then told Weil he needed an assistant steward, and Weil informed him he did not think he needed an assistant. Rod- riguez credibly testified that Union Agent De Carlo came to the plant to discuss the Henrique termination with Weil and that De Carlo indicated he would file a grievance but never did. On March 17 three employees were given written warn- ings because of absenteeism. When Rodriguez learned of the warnings he attempted to cause their immediate super- visor, Jose Martinez, to rescind them. The record fails to reveal the ultimate disposition of the grievance. When he received his paycheck on March 18 Rodriguez was given a letter signed by Fay Raphael, Respondent's controller. The letter provided: March 17, 1977 Mr. Francisco Rodriguez 712-14th Street Union City, NJ 07087 Dear Mr. Rodriguez: Enclosed is check for $10.00-this represents union dues deducted from your wages in January and Febru- ary 1977. The deduction for union dues was a clerical error on our part and was discovered during a recent routine audit of our files. Since you voluntarily left your job to go into your own business venture in May of 1976, any subsequent rehiring would be on the same basis as that of a new employee. In essence, this means that we would not begin to deduct union dues from your wages until February 4, 1977, 30 days after you were hired. We will resume deductions from your wages for union dues beginning this week. As per the by-laws of the union, only persons having been full-time employees for one year are eligible to be elected shop-steward. Therefore, the waving of union dues, in lieu of holding this position cannot apply to you. We have also made a clerical error in your case by enrolling you in our medical program as of January 4, 1977, when you should have been enrolled as of April 4, 1977. Since this was our clerical error, we will absorb the cost. However, we wish to again state that this was an error on our part. We hope that this letter satisfactorily explains the situation and, of course, if you have any questions, feel free to speak with me. Cordially yours, Fay Raphael Controller Lustrelon Inc. cc: Walter Weil Wilfred Gobbo FR: il Respondent's Vice President David Goldberg testified he actually dictated the above-quoted letter which was signed by Raphael. He testified that on an unspecified date a Mr. Gobbo of the Union telephoned him and asked why the Union was not receiving dues on Rodriguez. Goldberg claimed he put Gobbo on hold and asked the payroll clerk, who checked Rodriguez' card and said dues were not being sent to the Union for Rodriguez, as he was the shop stew- ard. Goldberg testified he relayed such information to Gobbo, and the latter informed him that "Frank was not shop steward and that we should immediately start deduct- ing dues." According to Goldberg, the alleged conversation with Gobbo caused him to dictate the letter given to Rodri- guez on March 18." Rodriguez testified that his understanding of the March 17 letter was that he had been "fired" as union steward by Respondent. He reacted by informing employees that Re- spondent had fired him from his steward position. On Mon- day, March 21, the record reveals, Respondent discovered that one of its high lifts had been disabled, as the ignition key had been broken off, and its spark plug wires had been ripped out. Rodriguez credibly testified that he declined to represent employees that day, telling them he was no longer the union steward. 2 During the course of the day several employees indicated they would walk out if Rodriguez was not their union steward. Rodriguez testified he attempted, without success, to contact the Union concerning the stew- ard matter on Monday. The record reveals that Rodriguez finally contacted Union Representative De Carlo on Tuesday morning. Rod- riguez credibly testified he told De Carlo that the Company had given him a letter which stated he could not be the union steward, that the employees were discussing a strike to protest the action, and that the requested that De Carlo come to the plant. De Carlo replied he hadn't seen a copy of the letter and had no time to come to the plant.' I Gobbo was not called as a witness, and while Respondent's payroll clerks testified at the hearing, they were not interrogated concerning the above-described incident. 12 Weil testified Rodriguez was fired on March 21, when he attempted to cause employees to engage in a strike in violation of the no-strike clause in the collective-bargaining agreement. As Weil erroneously placed the chain truck incident as having occurred in late February or early March, and other witnesses place the beginning of the strike on March 22, 1 find Rodriguez was terminated on MNarch 22, 1977. '3 De Carlo inferentially denied the conversation, as he claimed he learned Respondent's employees were on strike when he read a message left by an employee on March 22. Rodriguez was the more impressive witness, and I credit his testimony. 568 LUSTRELON, INCORPORATED Shortly before noon on March 22, Rodriguez informed Respondent's employees that he wanted to meet with them in Respondent's parking lot at noon. Riccardi heard rumors of an intended strike and relayed them to Weil. Shortly before noon Rodriguez stationed himself near Respondent's timeclock to urge first-floor employees, whose lunchtime was from 11:30 a.m. to 12 m., to go to the parking lot rather than return to work. Weil then approached Rodriguez at the timeclock and informed Rodriguez that he was calling an illegal strike. Rodriguez claims he told Weil he just wanted to meet with employees in the parking lot, and Weil claims Rodriguez agreed he was calling the employees out on strike.' In any event, as employees started for the park- ing lot, Weil informed Rodriguez he was fired for calling an illegal strike, and he told the employees they would be fired if they walked out. After he was told he was fired, Rodri- guez informed the employees Respondent could not fire them if they wanted to strike, and within a short time most of the employees left the plant. They were thereafter evicted from Respondent's property and from an adjacent corpora- tion's property by police and remained on strike Tuesday and Wednesday. On Tuesday or Wednesday, while Respondent's employ- ees were on strike, Rodriguez caused Tony Carrero, pres- ident of another union, and that union's attorney to come to the plant to meet with Respondent's management. The occurrences during that meeting are not revealed by the record. Subsequently, De Carlo came to the plant late dur- ing the afternoon of March 23. He chastised Rodriguez for causing the strike and caused the employees to return to work on Thursday, March 24, by promising that the Union would negotiate concerning the disagreement with the Company.' Analysis and Conclusions A. The Alleged 8(a)(1) Conduct By Plant Manager Weil The General Counsel contends that Respondent violated Section 8(a)(l) of the Act when Weil informed Rodriguez that he intended to lay him off and possibly recall him to a supervisory position. I find no merit in this contention. As previously indicated, Weil originally refused to rehire Rodriguez in December of 1976, because he felt Respon- dent's receiving department was fully staffed. Subsequently, the departmental foreman, Cascante, caused Weil to change his mind when he observed that Rodriguez could perform his duties while he was absent in connection with his intended trip to Chile. Thus, the record reveals that Rodriguez and, subsequently, his brother-in-law, George Castro, were hired to fill in for Cascante while he was ab- "Although Respondent offered testimony through employee Nereyda Trianea to corroborate Weil's assertion that Rodriguez agreed he was calling a strike, Trianea vacillated when testifying, and I conclude her testimony is unreliable. While I credit Rodriguez. I observe that Weil probably construed Rodriguez' comment as an admission that he was calling a strike. I infer that De Carlo had learned that Rodriguez asked another union for assistance, as De Carlo admittedly used derogatory terms when address- ing Rodriguez when he got to the plant on March 23. sent from mid-January until the end of February. Signifi- cantly, Weil informed Rodriguez, when the latter told him that he had been selected as the union steward, that it would be all right for then but not later on. It is in the above context that Weil told Rodriguez immediately after Cascante's return to work that he had been instructed to cut costs and planned to accomplish such by laying off Castro and Rodriguez, but that he intended to recall Rodriguez as a supervisor because he was pleased with his work and the way he communicated with employees. When Rodriguez asked if Weil had decided upon such a course of action because he [Rodriguez] was "making too many waves," Weil denied that such was the case and indicated he was serious about the supervisory offer. Since Respondent, in effect, rehired Rodriguez to accom- plish Cascante's supervisory duties in his absence, and Weil predicted his status would change at the time the union steward matter was first raised, I am unwilling to infer that Weil's early March decision to lay Rodriguez off and bring him back as a supervisor was occasioned by the employee's union activities. Accordingly, I find that General Counsel offered insufficient evidence to prove that Respondent un- lawfully threatened in early March to lay Rodriguez off or promote him to a supervisory position because he presented and pressed grievances pursuant to a collective-bargaining agreement. For the reasons stated, I recommend that para- graph 9 of the complaint be dismissed. By Assistant Plant Manager Riccardi The General Counsel claims that Respondent violated Section 8(a)(1) of the Act when Riccardi, during discussion of a grievance with Rodriguez, informed him he was mak- ing too many waves and he would fit him with cement shoes. I have credited Rodriguez' version of the conversa- tion and therefore find, as alleged, that Respondent, through the described comment by Riccardi, threatened Rodriguez in violation of Section 8(aXl1) of the Act during discussion of the Juan Castro matter. The March 17 letter The General Counsel contends, and I agree, that Respon- dent violated Section 8(a)(1) of the Act when it informed Rodriguez by letter dated March 17 that he could no longer act as union steward. In Bates Brothers, Inc., 135 NLRB 1295, 1297 (1962), the Board stated: It is well established that, in the absence of special circumstances, an employer does not have a right of choice either affirmative or negative as to who is to represent employees for any of the purposes of collec- tive bargaining. Respondent, in effect, argues that special circumstances ex- istent in this case justified the issuance of its March 17 let- ter. Thus, it sought to prove that it published the March 17 letter and delivered it to Rodriguez after Union Official Gobbo informed Respondent Vice President Goldberg in a telephone conversation that Rodriguez was not the official union steward at the plant and that union dues should be 569 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deducted from his earnings. Apart from the fact that the described testimony offered by Respondent was pure hear- say and is otherwise suspect,16 I conclude Respondent's de- fense is without merit, as the record clearly reveals Rodri- guez was justified in believing upon receipt of the letter that Respondent rather than the Union was removing him from his position as union steward. Indeed, he voiced this opin- ion to Weil and Goldberg immediately after he received the letter. While one would expect that Goldberg would have then explained that he had discussed the situation with the Union before the letter was prepared, he said nothing when confronted by Rodriguez. Similarly, Weil failed to explain the reason the letter was prepared and limited his comment to an inquiry as to whether Rodriguez was threatening him when the latter observed the employees were angry over Cottina's discharge and would be angry when they found out about the letter. I sum, I find that Respondent unilater- ally sought to oust Rodriguez from his union steward posi- tion by delivering the March 17 letter to him and that, by such action, Respondent violated Section 8(a)(I) of the Act as alleged." B. The Alleged 8(a)(3) Violations The Castro discharge I find that the General Counsel has offered insufficient evidence to prove that Respondent discharged George Cas- tro for discriminatory reasons. It is undisputed that Respondent knew when it hired Castro that he was on layoff from U.P.S. Similarly, Weil made it clear at the time that Castro was hired that the job was temporary and would last only until Foreman Cascante returned to work after his trip to Chile. The record reveals that shortly after Cascante returned to work, Weil instructed him to terminate Castro. The only significant evidence supportive of the General Counsel's po- sition is that evidence which reveals that Cascante, upon receiving Weil's instruction to terminate Castro, informed Rodriguez he felt the Company was terminating Castro to get even with Rodriguez because of his union activities. I refrain from placing undue emphasis upon Cascante's re- mark, as it is clear that Weil rather than Cascante ordered the termination. Moreover, Weil's decision was perfectly consistent with his stated intention at the time Castro was hired-that the job would be temporary and would expire when Cascante returned to work. The General Counsel contends that Weil's refusal to transfer Castro to another department at Rodriguez' re- 16 Gobbo was not called as a witness, and Goldberg's testimony is suspect, as: (I) Union Representative De Carlo had designated Rodriguez as the official steward, (2) no evidence was offered to show the Union was aware of Rodriguez' seniority status, and (3) the letter covered matters which were not shown to have been discussed between Goldberg and Gobbo, i.e., the Union's bylaw provisions regarding employees' eligibility for steward posi- tions, 17 The General Counsel claims Respondent violated Sec. 8(aXI) of the Act by unlawfully restricting the actions of union stewards during working time. Apart from the fact that such alleged violation was not included in the complaint, I refrain from finding a violation, as the subsisting contract per- mits Respondent to regulate the activities of union stewards during working time. See Joint Exh. , art. IV, sec. 2. quest and the fact that it assigned a private detective to the receiving department approximately 1-1/2 weeks after Cas- tro was terminated reveal a discriminatory motive for the discharge. I cannot agree. With regard to the refusal to transfer, Rodriguez testified that Respondent opened two new departments in late February and hired some 25 new employees to staff them. From this I am urged to infer that Respondent could have used Castro in one of the new de- partments. The difficulty with this contention is that Re- spondent denied that it hired 25 new employees or opened any new departments at the time in question. Respondent's books and records might have conceivably shown the true state of affairs during the period in question, but the best evidence was not placed in the record by either party. With the record in such a posture, I am unwilling to credit Rod- riguez' sweeping assertion that 25 new employees were hired in two new departments in late February. Similarly, General Counsel's proof that shortly after Castro's dis- charge Respondent assigned one Lopez Chavez to work which Castro had previously performed was effectively neu- tralized by Respondent's testimony, which reveals it had theft problems and that Chavez was a licensed detective who was assigned to the receiving department to ascertain who was doing the stealing. I have no reason to doubt that Chavez is a detective as claimed, and if this is the case, his assignment to the receiving department for the reason given by Respondent negates General Counsel's contention that the workload in the receiving department at the time of Castro's termination dictated his retention rather than his discharge. Consideration of the facts and circumstances set forth above leads me to conclude, and find, that General Counsel has failed to prove by a preponderance of the evidence that George Castro was discharged by Respondent in violation of Section 8(a)(3) of the Act as alleged. Accordingly, I rec- ommend that this complaint allegation be dismissed. The Rodriguez discharge Respondent claims Rodriguez admitted on the day of his discharge that he was calling a strike, and the General Counsel claims he was actually calling a short meeting to show employees the March 17 letter. In point of fact, he was attempting to cause employees, some of whom were scheduled to return to work at noon, to meet with him in Respondent's parking lot so they could decide what, if any, action they would take to protest Respondent's attempt to remove Rodriguez from the union steward position. Apart from the semantics, Respondent defends the discharge by claiming it was lawful, as the subsisting collective-bargain- ing agreement contains a broad no-strike clause, and Rodri- guez violated the contractual provision." As I have found that Respondent engaged in an unfair labor practice when it delivered the March 17 letter to Rodriguez, the real issue raised by the discharge is whether the instant no-strike clause precluded employees from protesting Respondent's unfair labor practice by striking. " See art. XIII, Jt. Exh. 1. 570 LUSTRELON, INCORPORATED In Mastro Plastic Corp. and French-American Reeds Mfg. Co., Inc. v. N.L.R.B., 350 U.S. 270 (1956), the Supreme Court refused to imply a waiver of the right to strike against the unfair labor practices there involved from a no-strike clause contained in a collective-bargaining agreement. In Arlan's Department Store of Michigan, Inc., 133 NLRB 802 (1961), the Board rejected a broad reading of the Court's decision which would have excluded all unfair labor prac- tice strikes from the operation of no-strike clauses and con- cluded that "only strikes in protest against serious unfair labor practices should be held immune from general no- strike clauses." (Footnote omitted.) The test to be applied in determining seriousness was experience, good sense, and good judgment. Viewing the facts in the instant case, I conclude and find that Respondent engaged in a serious unfair labor practice when it sought by the letter dated March 17 to remove Rodriguez from his union steward position. The evidence in this record reveals quite clearly that the Union exhibited little, if any, interest in Respondent's employees. Thus, when Rodriguez informed De Carlo of Respondent's March 17 letter and of the fact that the employees were discussing a strike, the Union did nothing. In this context, I find that Respondent's removal of Rodriguez from the union steward position left the employees with virtually no meaningful union representation. I infer that Respondent intended such a result, and I conclude that its attempt to deprive employees of any meaningful representation consti- tuted a serious unfair labor practice within the meaning of that term as used in Arlan's, surpa. In sum, I find that Rod- riguez engaged in protected activity when he sought em- ployee support to protest Respondent's unfair labor prac- tice on March 22, and I conclude the no-strike clause was not operable in the situation. Accordingly. I find that Re- spondent discharged Rodriguez in violation of Section 8(a)(1) and (3) of the Act on March 22, 1977, as alleged in the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section 111, above, occurring in connection with the operations de- scribed in section 1, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of com- merce. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by threatening union steward Rodriguez with reprisal because he pressed employee grievances and by attempting to re- move him from his union steward position. 4. Respondent violated Section 8(a)(l) and (3) of the Act by discharging Francisco Rodriguez because of his union activities. 5. The above-described unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not committed any other unfair labor practices alleged in the complaint. REMEDY In order to remedy the unfair labor practices found herein, my recommended Order will require Respondent to cease and desist therefrom, and, in view of the serious na- ture of the unfair labor practices, which effectively deprived employees of union representation, the Order will require Respondent to cease and desist from infringing upon the Section 7 rights of employees in any other manner. Respondent will be required to offer Francisco Rodriguez reinstatement to his former position of employment or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, dismissing, if necessary, anyone who may have been hired to perform the work which he had been performing. Additionally, Respondent will be ordered to make this employee whole for any loss of earnings he may have suffered by reason of his unlawful termination. with backpay to be computed on a quarterly basis, less his net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed in F W Woolworth Compan)', 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).'9 Upon the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' Respondent, Lustrelon, Incorporated, Edgewater, New Jersey, its officers, agents, representatives, successors, and assigns, shall: I. Cease and desist from: (a) Threatening employees with reprisal because they present or press employee grievances pursuant to a collec- tive-bargaining agreement. (b) Attempting to remove employees from the union steward position. (c) Discharging employees or otherwise discriminating against any employee for the purpose of discouraging em- ployees from engaging in union activity or other concerted activity for their mutual aid or protection. 1' See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The General Counsel seeks interest on backpay due of 9 percent per annum in this case. In view of the Board's recent revision of the interest rate in Florida Steel Corporation, supra, the request is denied. in agreement with the Board. I find interest at 7 percent per annum is adequate. 20 In the event no exceptions are filed as provided by Sec. 104.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 571 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization; to form, join, or assist labor organizations; to bargain collectively through representatives of their own choosing; and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protec- tion as guaranteed in Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Francisco Rodriguez immediate and full rein- statement to his former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights previously enjoyed, and make him whole for any loss of pay due to the violation against him in accordance with the manner set forth in the remedy. (b) Preserve and, upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its place of business in Edgewater, New Jer- sey, copies of the attached notice marked "Appendix."2 ' Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by Respon- dent, shall be posted by it immediately upon receipt thereof and maintained for a period of 60 consecutive days there- after, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 22, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 21 In the event that this Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective-bargaining or other mutual aid or protection To refrain from any or all such activities except to the extent that the employees' bargaining represent- ative and employer have a collective-bargaining agreement which imposes a lawful requirement that employees become union members. In recognition of these rights, we hereby notify our employees that: WE WILL NOT threaten employees with reprisal be- cause they present and press employee grievances pur- suant to a collective-bargaining agreement. WE WILL NOT attempt to remove employees from the union steward position. WE WILL NOT discharge employees or otherwise dis- criminate against them to discourage employees from engaging in union activity or other concerted activity for their mutual aid or protection. WE WILL NOT in any manner interfere with, restrain, or coerce you in the exercise of your rights under the National Labor Relations Act as set forth above. WE WILL offer Francisco Rodriguez immediate and full reinstatement to his former job or, if such job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and WE WILL make him whole for any loss of earnings he may have suffered as a result of the discrimination against him. LUSTRELON, INCORPORATED 572