Novel Knit, Inc.

58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Novel Kmt, Inc. and Juan R. Guillen. Case 22-CA- 16209 July 13, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND OVIATT On November 21, 1989, Administrative Law Judge Raymond P Green issued the attached deci- sion The Respondent filed exceptions and a sup- porting bnef The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions' and to adopt the recommended Order 2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Novel Knit, Inc, Fairview, New Jersey, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order I The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 The Respondent has requested oral argument The request is denied as the record, exceptions, and bnef adequately present the Issues and the positions of the parties The Respondent also requests that the Board receive further evidence in the form of testimony from its president, Robert Abood, and its plant manager, Wilbur Luhrs In support of this request, the Respondent at- tached to its brief affidavits executed by Abood and Luhrs, both dated after the judge issued his decision The Respondent claims that because It was not represented by counsel at the heanng, it did not recognize the Importance of Abood's testimony and that the information presented through Luhrs' ongmal testimony was not developed as fully as it might have been The Respondent's request is denied Insofar as the request constitutes a motion to reopen the record for further hearing, the request falls to satis- fy Sec 102 48(d)(1) of the Board's Rules and Regulations because the Re- spondent has not shown that the evidence It wishes to adduce is newly discovered and previously unavailable Further, the affidavits are not a part of the record, see Sec 102 45(b), and are not in accord with Secs 102 30 and 102 38 See ABC Trans-National Transport, 247 NLRB 240 fn 1 (1980) We shall therefore not consider the affidavits in resolving this controversy Wayne Eastman Esq , for the General Counsel Robert Abood and Phillip White, for the Respondent DECISION STATEMENT OF THE CASE RAYMOND P GREEN, Administrative Law Judge This case was tried in Newark, New Jersey, on September 25 and 26, 1989 The charge was filed on March 9, 1989,1 and the complaint was issued on Apnl 20, 1989 In sub- stance, the complaint alleges that the Respondent dis- charged Juan R Guillen because he posted a sign urging his coemployees to get a union On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed, I make the following FINDINGS OF FACT I JURISDICTION The Respondent admits and I find that it is an employ- er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II ALLEGED UNFAIR LABOR PRACTICES Juan Guillen commenced his employment at Novel Knit in January 1988 as a knitter on the night shift His immediate supervisor was Daniel Francisco and there were usually four or five other knitters who also were employed on the night shift The Company's owner is Robert Abood, the general manager is Wilbur Luhrs, and the day-shift supervisor is Jose Zapata Basically, the knitter's job consists of running a group of five or six knitting machines While doing so, he is re- sponsible for monitoring their progress to make sure that the cloth being produced (in this case lace), is coming out correctly In the event that a knitter sees a minor problem occurring, he may fix it himself However, he is responsible to stop a particular knitting machine if the lace being produced is coming out damaged In that case, the knitter is supposed to notify the foreman who is responsible for determining the correction The most common problems are holes in the material, broken threads, and dropped stitches There is no dispute that by the nature of the work damages will occur through no fault of the knitter The role of the knitter is to catch the damage as soon as possible, to stop the machine, and to refer the problem to the foreman In December, Guillen talked to some of the other em- ployees on the night shift about getting a union This did not get much response On the evening shift of December 28-29, Guillen made and put up a sign in the locker room stating in effect that the solution for the employees was getting a union Wilbur Luhrs the plant manager acknowledges that he became aware of this sign and Guillen's responsibility for posting it 2 Luhrs also acknowledges that when Night All dates are in 1989 unless otherwise indicated 2 The testimony of Luhrs on this (and on other points) was inconsistent with an affidavit he had given during the investigation of the case In his affidavit, Luhrs denied that he was told that Guillen had posted a sign He stated that he was aware of a proumon sign being posted sometime in October 1989 299 NLRB No 11 NOVEL KNIT, INC 59 Foreman Daniel Francisco told him about the sign, he told Francisco to not allow Guillen to punch in for work on the evening of December 29-30 and to tell Guillen to see Luhrs in the office on the morning of December 30 On December 29 Gmllen showed up for work but was not allowed to enter the plant as per Luhr's instructions to Francisco From the conversation he had with Fran- cisco, Guillen figured that he had been discharged When he appeared at the office on the morning of De- cember 30, this was confirmed and he was given his final check Given the timing of the events in this case, with the discharge of Guillen accomplished immediately upon dis- covering that he had posted a sign urging employees to get a union, there is a strong pnma facie case in support of tht. contention that Guillen was discharged because of union activities Wilbur Luhrs testified that he made the decision to discharge Guillen and that he did so without consulting owner Abood 3 Luhrs testified that his discharge deci- sion was based on Guilien's poor work performance and was specifically triggered by the fact that Guillen was tardy on December 28/29 and was absent on December 29-30 In support of the contention that Guillen did poor work, the company cited two occasions when the goods produced by his knitting machines had long and exten- sive damages in them On one of these occasions, the damage apparently went through the entire roll, meaning that Guillen had let that machine run for his entire shift without catching the damage Guillen does not dispute that on two occasions during his employment he was told about damages and was told to be more careful He testified, however, that these events took place well before December 28 Luhrs ac- knowledged that the first of these transactions may have happened in late November and that the other occurred sometime in December In an affidavit given by Francis- co, he stated that both instances occurred in November Notwithstanding the damaged goods, Luhrs conceded that although he may have been on the verge of dis- charging Guillen, he did not in fact make a decision to do so until December 29, which as noted above, is after GuiIlen posted the sign The timecards of GuiIlen show that on December 28- 29 he punched in late at 647 p m and that he left about 10 minutes early Luhrs testified that this and the fact that Gmllen did not work on December 29-30 triggered his decision to discharge Guillen Yet the reason that Guillen did not work that night was not because GuiIlen did not show up, but because Luhrs had instructed Fran- cisco not to let Guillen work that evening In my opinion, the General Counsel has shown that the reason that the Company discharged Guillen was be- cause he posted a union sign on December 28 I also conclude that the Respondent has failed to meet its burden of showing that it would have discharged Guillen even in the absence of his protected activity Wright Line, 251 NLRB 1083 (1980) 3 In his pretrial affidavit, Luhrs stated that he did consult with Abood before discharging Quillen CONCLUSION OF LAW By discharging Juan R Guillen because he posted a sign urging employees to unionize, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act Having discrimmatonly discharged an employee, Re- spondent must offer him reinstatement and make him whole for any loss of earnings and other benefits, com- puted on a quarterly basis from date of discharge to date of proper offer of reinstatement, less any net mtenm earnings, as prescribed in F W Woolworth Go, 90 NLRB 289 (1950), plus interest as computed in New Ho- rizons for the Retarded, 283 NLRB 1173 (1987) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The Respondent, Novel Knit, Inc, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging or otherwise discriminating against any employee for supportmg unionization (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Juan R Guillen immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other henefits suffered as a result of the discrimina- tion against him m the manner set forth in the remedy section of the decision (b) Remove from its files any reference to the unlawful discharge and notify Juan R Guillen in writing that this has been done and that the discharge will not be used against him in any way (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order 4 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (d) Post at its facility in Fairview, New Jersey, copies of the attached notice marked "Appendix " 5 Copies of the notice, on forms provided by the Regional Director for Region 22 after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply 5 If 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 Nation- al 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 Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice Section 7 of the Act gives employees these nghts To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities WE WILL NOT discharge or otherwise discriminate against any of you for supportmg any union WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL offer Juan R Guillen immediate and full re- instatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to his semonty or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net mtenm earnings, plus interest WE WILL notify him that we have removed from our files any reference to his discharge and that the dis- charge will not be used against him in any way NOVEL KNIT, INC