Ella Industries, Inc.

National Labor Relations Board - Board Decisions

Jul 11, 1989

295 N.L.R.B. 976 (N.L.R.B. 1989)

976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ella Industries , Inc. and Local One-Three, Fur,
Leather and Machine Workers' Union, a/w
United Food & Commercial Workers' Interna-
tional Union and Local 97, International Broth-
erhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America , AFL-CIO, Party
in Interest. Cases 22-CA-15035, 22-CA-15039,
22-CA-15112-2, 22-CA-15162, 22-CA-15330,
22-CA-15341, 22-CA-15454, 22-CA-15455
July 11, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On December 23, 1988, Administrative Law
Judge D. Barry Morris issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief.
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
conclusions2 and to adopt the recommended
Order.
' 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 For the reasons stated by the judge , and as further demonstrated by
the record , we find that the Respondent made employee Edgar Ordonez
its agent for the purpose of communicating to employees its campaign in
support of Teamsters Local 97 and against UFCW Local One-Three.
Thus, as found by the judge , Ordonez' activities exceeded those of a
mere neutral translator . He was an important and partisan conduit be-
tween the Respondent's vice president , DiStasi, and Spanish-speaking em-
ployees. Employees saw him receive from DiStasi and then distribute
among the work force invitations to a Local 97 meeting scheduled for
the next day Employee Tejeda testified that after Ordonez handed her
the invitation he instructed her to come to work early the next day and
..we were going to go to the meeting and after the meeting was over we
were going to eat , and we were going to be paid the time that we were
there ." This is the 8(a)(1) statement that Ordonez made . It does not seem
appropriate to use it as a basis for the agency finding . However, Ordonez
also told her that after the election DiStasi promised her a 50-cent raise.
Employee Cordero testified that Ordonez questioned him at his locker re-
garding his failure to return to work at the conclusion of the previous
day's meeting with Local 97. When Cordero admitted having attended a
Local I meeting , Ordonez left and returned shortly thereafter with DiS-
tasi who explained, through Ordonez, that he would be fired if he refused
to sign a statement accusing Local I of offering Cordero $1000 to cam-
paign for it When Cordero refused to sign the statement , Ordonez in-
formed him in DiStasi 's presence that he was discharged.
Under these circumstances, in which the Respondent has chosen Or-
donez as its agent to communicate its preference for one union and its
opposition to another, and placed him in a position identifying him with
management so that the employees would reasonably understand that he
spoke for management , the Respondent is liable for Ordonez' unlawful
conduct See Ohmite Mfg, 290 NLRB 1036 (1988), Einhorn Enterprises,
279 NLRB 576 (1986) Moreover , we note that Ordonez made the unlaw-
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Ella Indus-
tries, Inc., Newark, New Jersey, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
ful statement in the presence of DiStasi, who did not disavow or other-
wise remedy the statement.
Marta Figueroa, Esq., for the General Counsel.
William Teltser, Esq. (Greenberg, Margolis, Ziegler,
Schwartz, Dratch, Fishman, Franzblau & Falkin), of
Roseland, New Jersey, for the Respondent.
Eileen Willenborg, Esq., of New York, New York, Coun-
sel for Local One-Three.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This
case was heard before me in Newark, New Jersey, on
April 11-13 and May 2-4, 1988. On charges filed begin-
ning May 13, 1987, a complaint was issued on August 28,
1987, amended on January 29, 1988, and further amended
on April 11, 1988, alleging that Ella Industries, Inc. (Re-
spondent) violated Section 8(a)(1), (2), (3), and (4) of the
National Labor Relations Act (the Act). Respondent
filed an answer denying the commission of the alleged
unfair labor practices.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. A brief was filed by the
General Counsel.
On the entire record of the case, including my obser-
vation of the demeanor of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
Respondent, a corporation with an office and place of
business in Newark, New Jersey , is engaged in the proc-
essing and dressing of furs . It annually purchases and re-
ceives at its Newark facility goods valued in excess of
$50,000 directly from points outside the State of New
Jersey . Respondent admits that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and I so find . In addition , it has been ad-
mitted, and I find , that Local One-Three, Fur, Leather
and Machine Workers' Union , a/w United Food & Com-
mercial Workers ' International Union (Local One) and
Local 97, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
AFL-CIO (Local 97) are labor organizations within the
meaning of Section 2(5) of the Act.
295 NLRB No. 104
ELLA INDUSTRIES 977
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues are:
1. Was Mariano Lopez a supervisor , within the mean-
ing of the Act, prior to April 1987?
2. Did Respondent interfere with its employees' Sec-
tion 7 rights in violation of Section 8(a)(1) of the Act?
3. Did Respondent render support to Local 97 and
deny that support to Local One, in violation of Section
8(a)(2) and (1) of the Act?
4. Did Respondent discharge Maria Maldonado, Can-
dido Cordero and Maria Tejeda in violation of Section
8(a)(3) and (1) of the Act?
5. Did Respondent discriminate against an employee
for giving testimony under the Act, in violation of Sec-
tion 8(a)(4) and (1) of the Act?
B. The Facts
1. Background
In 1985 Local One began organizing Respondent's em-
ployees and on September 13, 1985, filed a petition in
Case 22-RC-9510. During the processing of that petition
Local 97 intervened on the basis of an alleged contract.
The contract was subsequently held not to bar the proc-
essing of the petition and an election was held on Janu-
ary 31, 1986, in which both Local One and Local 97
were on the ballot. Since neither union had a majority, a
runoff election was scheduled for May 15, 1987.1 The
scheduled election was held in abeyance because of the
charges in this proceeding which were filed beginning
May 13.
2. Supervisory status
It has been admitted that Loris Dinspechin , president,
Anthony DiStasi, vice president, Steven Kahn, and
Maria del Carmen are supervisors within the meaning of
the Act. Respondent admits that Mariano Lopez and
Robson Riberio were supervisors within the meaning of
the Act beginning April 1987. General Counsel contends,
however, that Lopez performed supervisory functions
prior to that date.
Cordero credibly2 testified that Lopez gave orders and
assigned overtime as early as May 1986. Similarly, Mal-
donado credibly testified that beginning June 1986 Lopez
gave orders to clean the skins and assigned overtime.
While DiStasi testified that it was first in April 1987
when Lopez' hourly wages were increased, thus indicat-
ing that at that time he became a supervisor, I credit
Cordero's and Maldonado's testimony that he was per-
forming supervisory functions even prior to April 1987.
The fact that his hourly wages may have first been
raised in April 1987 does not in and of itself demonstrate
that he was not performing supervisory functions prior
to that time . Accordingly, I find that beginning June
1 All dates refer to 1987 unless otherwise specified.
2 Cordero, Maldonado, Maria Tejeda, and Romeo Teieda appeared to
me to be generally credible witnesses. Rlbeno and Kahn, on the other
hand, were evasive in many of their answers.
1986 Lopez was a supervisor within the meaning of the
Act.
3. Events of November 1986
Cordero was an active and open supporter of Local
One. He credibly testified that he spoke to employees in
the factory in support of Local One and some of these
conversations took place in front of Lopez. Cordero tes-
tified that in November 1986 he had a conversation with
DiStasi in which he asked for time off to take a trip to
his native land. Cordero credibly testified that DiStasi
told him that "he was going to give me the vacation and
a raise, but in exchange for that he wanted me to help
him informing him anything I knew that Ramon Vargas
and Jorge Cordova would tell me about the union, and I
told him yes, it's all right."
4. Events of February 1987
Cordero credibly testified that in February 1987 Din-
spechin called himself, Lopez, and Edgar Ordonez to his
office and said that one of the employees who lived in
New York was telling "everything that was happening at
the factory" to Local One. Dinspechin said that if he
found out who that person was "he was going to be fired
from the factory ." Maldonado was present during the
conversation and she corroborated Cordero's testimony.
5. Maldonado discharge
Cordero testified that several days prior to Maldona-
do's discharge there was a conversation at lunch be-
tween himself, Maldonado , Maria Tejeda, Mariano
Lopez, and several others . A discussion took place con-
cerning the upcoming elections at which time Maldon-
ado said that she was going to vote for Local One. Cor-
dero credibly testified that Lopez stated "whoever votes
for Local 1 is going to fail because what we want here is
Local 97." Maldonado corroborated this testimony. Mal-
donado was discharged approximately 3 or 4 days after
this conversation . Maldonado also testified that on
March 5 she was supposed to start work at 4 p.m. but
instead she arrived with Maria Tejeda at 4:35 p.m. After
punching in, Steven Kahn came to her, handed her a
check, and said "there was no more work."
6. May 1 conversation
Cordero credibly testified that on May 1 Lopez came
to Maria Tejeda, himself, and several others while they
were working and said , "Do you know there's elections
on the 25th?" Lopez continued , "whoever does not vote
for Local 97 is going to be fired from the factory be-
cause we don't want Local 1 . . . and if Local 1 wins
we'll close the factory."
7. Meeting with Local 97
Cordero credibly testified that on May 12 DiStasi
handed invitations to Edgar Ordonez, who then handed
them out to the employees . The invitations were to
attend a Local 97 meeting the following day. Cordero
testified that Steven Kahn told the employees to report
early on May 13. Cordero reported to work on May 13
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
at 11:30 a .m. and the employees drove to a restaurant for
the meeting . Approximately 30 to 35 employees attended
the meeting. A representative of Local 97 addressed the
employees and Cordero testified that he and Maria
Tejeda were the only employees who asked questions.
Maria Tejeda credibly testified that on May 12 Edgar
Ordonez handed her an invitation for the Local 97 meet-
ing the following day. He told her that after the meeting
was over "we were going to eat and we were going to
be paid the time that we were there." She testified that
both Ordonez and Kahn told her to come early the fol-
lowing day. She testified that the meeting started at 12
noon on May 13 and employees from the first and
second shifts were in attendance. Members of Local 97
addressed the employees and Tejeda testified that she
and Cordero were the only employees who spoke at the
meeting. Cordero asked about a raise and how Local 97
supported the workers. Tejeda mentioned that Local 97
had been the union that her husband belonged to and at
one time he had a problem and the union was not able to
resolve it . Tejeda testified that after the meeting DiStasi
provided the employees with pizza which they ate at the
factory.
8. Cordero discharge
Cordero testified that on May 12 DiStasi called him to
his office and told him that he wanted him to sign a
statement that Local One offered him $1000 so that he
would work "with Local One." A woman who served as
a translator was also present. Cordero testified that he
told DiStasi that he would not sign the statement. Later
that evening DiStasi again called Cordero to his office
and the woman was again present . Cordero testified
"they wanted me to cooperate with them and sign the
letter and I said , no, I can't sign that because it's not
true." Cordero further testified that DiStasi was "pres-
suring" him and said , "if you sign this you 're going to
have good benefits ." Cordero testified , "I continued re-
sisting, finally I told him, well, let's leave it till tomor-
row, I'll think about it, because what I wanted to do was
get out of there because of the pressure that he had on
me." The following day the meeting with Local 97 took
place and Cordero testified that after the meeting he did
not return to work because he was "scared" to do so.
Cordero returned to work at 12:30 p.m. on May 14.
Cordero credibly testified that Edgar Ordonez ap-
proached him in the locker room and the following con-
versation ensued:
Edgar told me as an interpreter that Anthony was
saying that for me to continue working as an em-
ployee in that factory I had to sign that letter that
he had wanted me to sign . And I told him no, I was
not going to sign that letter because I would not
sign something that was not true . Anthony insisted
that I had to sign it or else I would not have the
job, and I said that I would not sign it . And when
Edgar told him that I was resisting to signing it,
then Anthony said, and that I understood in Eng-
lish, no more work. That I understood, but just to
be sure I asked Edgar what he was saying, and
Edgar says, if you don't sign the letter, you don't
have a job . He told that to Anthony and Anthony
pulled out a yellow letter from the envelope and
gave me the envelope with the check.
Rosa Vasco, a relative of Steven Kahn, testified that
she was the person who served as an interpreter in the
conversation between DiStasi and Cordero . She testified
that Cordero told her that someone from Local One of-
fered him $1000 so he could represent Local One, and he
accepted the money . She further testified that she and
DiStasi prepared a written statement to that effect and
that Cordero refused to sign it . Similarly, DiStasi testi-
fied that Cordero had told him that he was offered $1000
to represent Local One. DiStasi asked Rosa Vasco to
serve as an interpreter and prepare a statement to that
effect . DiStasi then asked Cordero to sign the statement
but Cordero refused.
9. Violation of Section 8(a)(4)
The complaint alleges that Respondent discharged
Maria Tejeda because she gave testimony under the Act,
in violation of Section 8(a)(4). General Counsel's brief
states that in June 1987 "Tejeda provided evidence in the
NLRB investigation into the discharge of her sister, Mal-
donado ." DiStasi testified, however , that he was not
aware of Tejeda's participation in the NLRB investiga-
tion . The record contains no evidence that any supervi-
sor or agent of Respondent was aware of such participa-
tion.
10. Tejeda discharge
Maria Tejeda credibly testified that 2 days after the
meeting with Local 97 Robson Riberio called her and
told her that she should be careful "because Anthony
had been told that Condido Cordero and myself were
the only ones who spoke at the meeting and that I had
spoken badly about Local 97."
Maria Tejeda became separated from her husband,
Romeo, during the summer of 1987. Soon after the sepa-
ration , Romeo applied for a job with Respondent, and he
was hired. During October Romeo hit Maria at work
and the police were called. Although two witnesses told
Steven Kahn that it was Romeo who hit Maria, Kahn
accused Maria of being the one who hit Romeo. On the
day following the altercation Maria reported to work
and nothing was said . On the following day, when she
reported to work, Kahn told her that she was fired. She
was not given a reason why . Romeo, on the other hand,
was not discharged.
Romeo Tejeda also testified . He appeared to be a cred-
ible witness and the record indicates no reason why he
would be biased in favor of Local One or any of the al-
leged discriminatees . He credibly testified that when he
applied for a job with Respondent he told DiStasi that
he belonged to Local 97 and DiStasi told him that if he
got a recommendation from Local 97 he would give him
the job. He got such a recommendation and was offered
the job the very same day.
Romeo credibly testified that he had a conversation
with Steven Kahn and Robson Riberio concerning his
wife, at which time they told him that she was on the
ELLA INDUSTRIES
"hot list" or the "black list " because "she was campaign-
ing for Local 1." Robson also told him that Cordero and
Maldonado "had been fired from the job because they
were campaigning for Local 1 ." Romeo further credibly
testified that Robson told him that DiStasi was "willing
to pay me so that Maria would be taken out of work." In
addition , Romeo credibly testified that he told DiStasi:
... it wasn't necessary to fire my wife, that I had
been working for some time with Local 97 at the
company where I worked before and I was willing
to give them my vote when the elections came up.
In other words, to cover my wife's vote for Local I
is that if she voted for Local 1, I would vote for
Local 97 and then we would be in peace.
With respect to the altercation between himself and his
wife, Romeo credibly testified that Steven Kahn was
present during the incident and Kahn told Romeo that
"there was no problem with me" and that it was Maria
"that was going to have a problem." Romeo further cre-
dibly testified that a day after the fight , DiStasi and
Kahn spoke to Romeo and asked if "I wanted them to
fire her that same day." Romeo replied , "yes." Romeo
returned to work several days later and he was not disci-
plined nor did he receive any warnings concerning the
altercation.
C. Discussion and Conclusions
1. Violations of Section 8(a)(1)
Respondent committed numerous violations of Section
8(a)(1) of the Act. In November 1986 DiStasi told Cor-
der) that he would give him a vacation and a raise but
that DiStasi wanted Cordero to inform him concerning
Local One . This constitutes a violation of Section 8(a)(1).
In February 1987 Dinspechin told employees that if he
found the employee who was passing information to
Local One, he would be fired. This constitutes another
violation of the Act. In addition , on May 1 Mariano
Lopez told employees that "whoever does not vote for
Local 97 is going to be fired because we don't want
Local 1 . . . and if Local 1 wins we'll close the factory."
This threat to close the factory was a further violation of
Section 8(a)(1).
With respect to the statement that DiStasi wanted
Cordero to sign concerning Local One, Vasco and DiS-
tasi testified that it was Cordero who initially said that
someone from Local One offered him $1000 so that he
would support Local One. Cordero denied that took
place. It is not necessary for me to decide whether or
not a payment was made to Cordero and whether Cor-
dero initiated the discussion . What is important, howev-
er, is that DiStasi required Cordero to sign a statement
implicating Local One. Cordero refused to sign the state-
ment and finally DiStasi told him there was no work
available if he refused to sign the statement . Requiring
Cordero to sign a statement detrimental to the union of
his choice interfered with his Section 7 rights, in viola-
tion of Section 8(a)(1) of the Act.
Maria Tejeda credibly testified that just before the
election Edgar Ordonez told the employees that they
979
should vote for Local 97. Ordonez was used as a transla-
tor and as a conduit for purposes of communicating with
Respondent 's Spanish-speaking employees . Since he re-
layed information for management to the employees and
was placed by management in a strategic position where
employees could reasonably believe he spoke in its
behalf, I find that Ordonez is an agent of Respondent
within the meaning of the Act . See B-P Custom Building
Products, 251 NLRB 1337, 1338 (1980). Accordingly, I
find that Ordonez' statement to the employees was a vio-
lation of Section 8 (a)(1).
Maria Tejeda also credibly testified that soon after
Cordero was discharged Maria del Carmen asked her
what her feelings were about Local One. I find that this
constituted unlawful interrogation , in violation of Section
8(a)(1). In addition , when Romeo Tejeda applied for a
job DiStasi told him that he would give him a job if he
were recommended by Local 97. Romeo was recom-
mended and was hired the same day . Conditioning the
employment on the recommendation of Local 97 was a
violation of Section 8(a)(1) of the Act.
2. Wage increase
The complaint alleges and Respondent admits that it
promised its employees a wage increase after the election
scheduled for May 15, and that in late May it granted
the wage increase . Respondent did not present evidence
to show that it had an established policy regarding the
granting of wage increases . Respondent thus failed to
satisfy its burden to justify both the fact and the timing
of the increase . See Village Thrift Store, 272 NLRB 572
(1983); American Sunroof Corp., 248 NLRB 748 (1980),
enfd. as modified 667 F.2d 20 (6th Cir . 1981). According-
ly, I find that the promise and grant of the wage increase
constitutes a violation of Section 8(a)(1) of the Act.
3. Violation of Section 8(a)(2)
Ordonez, as Respondent 's agent , campaigned openly in
the plant for Local 97. He distributed the announcements
for the May 13 meeting which he received directly from
DiStasi . The second-shift employees arrived early that
day pursuant to instructions from Ordonez and Kahn.
All the employees at work that day were required to
attend the meeting . Although they were not paid for the
time spent at the meeting, they were paid during the
pizza party held immediately after and DiStasi paid for
the pizza . While Respondent claims that the pizza party
was actually a birthday celebration , the record shows
that no one at the plant had a birthday on that day. Or-
donez' testimony in this regard is not credible . While Or-
donez testified that the party was held the day before his
birthday because he does not work on his birthday, he
subsequently testified that, in fact , he did work on his
birthday . Furthermore , while he testified that Respond-
ent customarily has birthday celebrations on company
time, on cross-examination he admitted that this was the
first time such a "birthday celebration " was held.
When the president of Local One learned of the May
13 meeting he sent DiStasi a telegram demanding equal
access . DiStasi admitted that a similar lunchtime meeting
was never held between employees and Local One. Ac-
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD'
cordingly, I find that Respondent violated Section 8(aX2)
of the Act by sponsoring the May 13 meeting and by de-
nying Local One equal access.
4. Discharge of Maldonado
Several days before Maldonado was discharged she
had a conversation with Mariano Lopez during which
Maldonado said that she was going to vote for Local
One. Lopez replied that "whoever votes for Local 1 is
going to fail because what we want here is Local 97."
Romeo Tejeda credibly testified that Robson Riberio
told him that Maldonado was discharged because she
was campaigning for Local One. DiStasi testified that
Maldonado was terminated because of her "continued
lateness and conduct , and a number of other things."
Later in his testimony , DiStasi added "neglect of her
job" as an additional reason for her termination . A docu-
ment submitted by Respondent to the New Jersey De-
partment of Labor, Division of Unemployment and Dis-
ability Insurance , shows with respect to Maldonado that
the only stated reason for the termination was "contin-
ued lateness ." The Board has long expressed the view
that "when an employer vacillates in offering a rational
and consistent account of its actions, an inference may be
drawn that the real reason for its conduct is not among
those asserted ." Aluminum Technical Extrusions, 274
NLRB 1414, 1418 (1985); F. W.I.L. Lundy Bros. Restau-
rant, 248 NLRB 415 , 428 (1980). Such an inference is
warranted here.
In addition, with respect to her lateness on the day of
her discharge , both Maldonado and her sister were
equally late. Maldonado was fired , however her sister
was not . The record also shows that two other employ-
ees, Esther DaSilva and Michael Robinson, were each
late five times during a 5 -week period , yet neither of
them was discharged . I find that Maldonado was dis-
charged because of her support of Local One , in viola-
tion of Section 8(a)(3) and (1) of the Act. Respondent's
reasons for the discharge are pretextual . See Limestone
Apparel Corp., 255 NLRB 722 (1981 ), enfd . 705 F.2d 799
(6th Cir. 1982).
5. Discharge of Cordero
Cordero was a known supporter of Local One. DiStasi
attempted to get Cordero to sign a statement which
would have been detrimental to Local One. On May 14
DiStasi insisted that Cordero sign the statement or else
he would be out of a job. When Cordero refused to sign
the statement DiStasi told him there was "no more
work." In addition, Romeo Tejeda credibly testified that
Riberio, a supervisor, told him that Cordero had been
fired because he was campaigning for Local One. While
DiStasi testified that he did not discharge Cordero and
instead that he was told by Edgar Ordonez that Cordero
quit, I have credited the testimony of both Cordero and
Romeo Tejeda and I find that Cordero was discharged
because he refused to sign the statement detrimental to
Local One. This constitutes a violation of Section 8(a)(3)
and (1) of the Act.
6. Discharge of Maria Tejeda
Maria Tejeda and Cordero were the only two employ-
ees who spoke at the Local 97 meeting . Two days after
the meeting Riberio told her that she should be "careful"
because DiStasi had been told that she and Cordero were
the only ones who spoke at the meeting and that she
"had spoken badly about Local 97." In October, after
her husband, Romeo, hit her, even though there were
witnesses that it was Romeo who hit Maria, Steven
Kahn accused Maria of being the one who hit Romeo.
Romeo credibly testified that Kahn and Riberio said that
Maria was on the "hot list" or the "black list" because
she was "campaigning for Local 1." He further credibly
testified that Robson told him "they were willing to pay
me so that Maria would be taken out of work." After
Romeo hit Maria , Kahn said that there would be no
problem with Romeo but it was Maria that was "going
to have a problem ." DiStasi and Kahn then spoke to
Romeo and asked him whether he wanted them to fire
Maria that same day and he replied , "Yes." DiStasi testi-
fied that Maria was discharged for lateness , absent with-
out calling , and physical fighting. I find these reasons to
be clearly pretextual . See Limestone Apparel Corp ., supra,
255 NLRB 722. I find that Maria Tejeda was discharged
because she supported Local One. This constitutes a vio-
lation of Section 8(a)(3) and (1) of the Act.
7. Other allegations
The complaint alleges that Maria Tejeda was dis-
charged because she gave testimony under the Act. Gen-
eral Counsel's brief alleges that in June 1987 Tejeda
"provided evidence in the NLRB investigation into the
discharge of her sister." DiStasi denied having any
knowledge that Maria Tejeda participated in the investi-
gation and General Counsel has not shown that Re-
spondent had knowledge of her participation in the in-
vestigation . Accordingly, the allegation is dismissed.
The amended complaint alleges that Respondent insti-
tuted a written warning system in December 1986 and
issued warnings to Maldonado and Maria Tejeda because
of their support of Local One. I find the evidence insuffi-
cient to support a finding that a written warning system
was instituted in December 1986 . In addition, I find that
General Counsel has not shown that the warnings issued
to Maldonado and Tejeda were issued because of their
support of Local One. Accordingly, the allegations are
dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Local One and Local 97 are labor organizations
within the meaning of Section 2(5) of the Act.
3. By interrogating employees , promising benefits,
threatening to close the plant, promising and granting
wage increases, and other acts interfering with employ-
ees' Section 7 rights, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act.
ELLA INDUSTRIES 981
4. By assisting Local 97 and refusing to provide the
same assistance to Local One, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(2) and (1) of the Act.
5. By discharging Condido Cordero, Maria Maldon-
ado, and Maria Tejeda for supporting Local One, Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
6. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
7. Respondent did not violate the Act in any other
manner alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I find it necessary to order Respondent
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
Respondent having discharged Condido Cordero,
Maria Maldonado, and Maria Tejeda in violation of the
Act, I find it necessary to order Respondent to offer
them 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 that they may have suffered from the time of
their discharges to the date of Respondent's offers of re-
instatement . Backpay shall be computed in accordance
with the formula approved in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).3
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
(a) Offer Condido Cordero, Maria Maldonado, and
Maria Tejeda 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 , with interest, in the
manner set forth in the remedy section above.
(b) Remove from its files any references to the unlaw-
ful discharges of Cordero, Maldonado, and Tejeda and
notify them in writing that this has been done and that
the discharges will not be used against them 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.
(d) Post at its facility in Newark, New Jersey, copies
of the attached notice marked "Appendix."s Copies of
the notice, on forms provided by the Regional Director
for Region 22, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent 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.
IT IS FURTHER RECOMMENDED that those allegations of
the complaint as to which no violations have been found
are dismissed.
ORDER
The Respondent, Ella Industries, Inc., Newark, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union activi-
ties, threatening employees with plant closure, or promis-
ing and granting wage increases or other benefits in a
manner interfering with employees' Section 7 rights.
(b) Unlawfully assisting one union and refusing to pro-
vide the same assistance to another union, in violation of
the Act.
(c) Discharging employees for activities protected by
Section 7 of the Act.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
Section 7 rights.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
8 Under New Horizons, interest is computed at the "short-term Federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
26 U.S.C § 6621.
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.
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
After a hearing in which all parties were afforded the
opportunity to present evidence, it has been found that
we violated the National Labor Relations Act in certain
respects and we have been ordered to post this notice.
WE WILL NOT interrogate employees, threaten em-
ployees with plant closure, or promise and grant wage
increases or other benefits in a manner interfering with
the employees' Section 7 rights.
WE WILL NOT assist one labor union and refuse to pro-
vide the same assistance to another labor union, in a
manner which violates the Act.
WE WILL NOT discharge employees for activities pro-
tected by Section 7 of the Act.
982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce employees in the exercise of
rights guaranteed to them by Section 7 of the National
Labor Relations Act.
WE WILL offer full and immediate reinstatement to
Condido Cordero, Maria Maldonado , and Maria Tejeda
to their former positions or, if such positions no longer
exist, to substantially equivalent positions , without preju-
dice to their seniority or other rights and privileges and
WE WILL make them whole for any loss of earnings they
may have suffered by reason of their discharges, with in-
terest.
WE WILL remove from our files any references to the
discharges of Cordero, Maldonado, and Tejeda and
notify them in writing that this has been done and that
evidence of these unlawful discharges will not be used
against them in any way.
ELLA INDUSTRIES, INC.