Harold Freeman Jewelry Mfg. Co., Inc.

National Labor Relations Board - Board DecisionsNov 2, 1971

193 N.L.R.B. 1115 (N.L.R.B. 1971)

HAROLD FREEMAN JEWELRY MFG. 1115 Harold Freeman Jewelry Mfg. Co ., Inc. and Paul Navas Jr. Case 2-CA- 12325 November 2, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On August 31, 1971, Trial Examiner Bernard J. Seff issued the attached Decision in this proceeding. Thereafter, General Counsel filed exceptions and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BERNARD J. SEFF , Trial Examiner: This case came on for hearing before me in New York City on August 4, 1971,1 based on a complaint issued on May 19 which in turn was predicated on a charge filed on April 6. The complaint alleges that the Respondent discriminatorily discharged Paul Navas, Jr. Respondent admits certain allegations in the complaint but denies having committed any unfair labor practices. Upon the entire record, from my observation of the demeanor of the witnesses, and after duly considering the brief submitted by the Respondent and the oral argument made at the hearing by the General Counsel, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Respondent is a corporation duly organized under, and existing by virtue of, the laws of the State of New York. At all times material herein, the Respondent has main- tained an office and place of business at 99-105 Canal Street, in the City of New York and State of New York where it is and has been engaged in the manufacture, sale, and distribution of gold and platinum mounted jewelry and related products. During the past fiscal year, which period is representative of its annual operations, the Respondent, in the course and conduct of its business operations, manufactured, sold, and distributed at its place of business products valued in excess of $500,000, of which products valued in excess of $50,000 were shipped from said place of business in interstate commerce directly to States of the United States other than the State in which it is located. The Respondent admits and I find that the Employer is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Local 1, Amalgamated Jewelry Workers, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES On or about the middle of March the Union commenced an organizing drive among various of the Respondent's employees . On or about April 2 the Respondent discharged Paul Navas, Jr. The discharge took place under the following circum- stances: The essential facts are not in dispute . The alleged discriminatee , Paul Navas, answered a newspaper ad placed by the Respondent who needed help. Navas answered the ad and indicated on his application for employment that he had been a paid organizer for Local 1, Amalgamated Jewelry Workers, AFL-CIO, for about a year. The Respondent, from this application , knew about Navas' past employment by the Union. In fact , it is not disputed that Freeman , president of the Company, had been a member of this Union himself for many years and always maintained cordial relations with its principal officers. In March the Union began its organizing campaign among the Respondent 's employees. Navas distributed some application for membership cards and turned some of the signed cards over to the president of the Union. Navas testified that he did not know if he had been observed by company supervisors engaging in these union activities. In any case he said he did little organizing for the Union. On April 1, Navas asked his foreman , Peter Scarcella, to arrange a meeting with the Company 's president , Freeman. Navas spoke to Freeman in the presence of Scarcella and Joseph Palermo , another supervisor . It was credibly testified that Navas was in an angry mood and demanded that Freeman call a meeting of all employees in the shop after 5 : 30 p.m . to give Navas a chance to deny rumors to the effect that the Union had planted him, its former employee, in the factory in order to organize the employees. Freeman refused to call the requested meeting and upon his refusal Navas in his 5 to 10 minute conversation with Freeman became quite heated . When his repeated requests for a meeting to be held after hours was refused by Freeman , Navas shouted , "Are you going to fire me for r All dates are in 1971 unless otherwise indicated 193 NLRB No. 169 1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union activities?" Freeman said, "No, but I am firing you for spending time talking to me when I pay you for polishing rings." There is a conflict in the testimony with respect to the exact words used by Freeman. The two supervisors and Freeman corroborated each other that Freeman told Navas two or three times to go back to work. Navas said he was never told in this discussion to return to work although he admitted he was told to go back to polishing rings. The president of the Union, Joseph Tarantolla, testified that he had a number of conversations with Freeman in the course of which Freeman made some remarks to the effect that he, Freeman, knew Navas was in the shop to organize the employees. It is significant to note that the General Counsel did not allege in his complaint that the Company engaged in any independent 8(a)(1) activity. The sole question before me is whether or not Navas was discharged for Union activities. The General Counsel argues that since the conversation which took place between Navas and Freeman took no longer than 10 minutes at the outside it could hardly be said that he was disrupting the Company's business by engaging in this conversation. When Freeman testified he stated that Navas was discharged because he was disrupting the Company's business. The record is devoid of any suggestion of union animus and in fact Freeman seemed to have a very good relationship with the union representatives. Tarantolla asked Freeman if he would agree to hold a private election in the plant to find out whether the employees wanted to be represented by his Union. Freeman felt that an election should be conducted under the auspices of the National Labor Relations Board . Tarantolla said they did not need the Board but that the parties could agree to hold an election under some impartial person. Such an election was held and the employees rejected representation by the Union. There was other evidence in the record to indicate that at the time Navas was told that he was discharged he allegedly said to Mr. Freeman, "If you don't permit me to make known the fact that I'm not an organizer, I'm now going to organize for the union." There was also some evidence in the record to show that in the course of checking up on some of Navas' references before he was hired a telephone call was made to a prior employee who allegedly said that Navas was a troublemaker for the union. CONCLUDING FINDING AND ANALYSIS The record is devoid of any evidence that the Company was motivated in its discharge of Navas by union considerations. It is significant to again point out that the complaint as drawn by the General Counsel contains no allegations to the effect that the Company engaged in independent 8(a)(I) activity. There is no basis in this record for drawing the inference that the 10 minute interruption in the course of the Company's business occasioned by the conversation that Navas had with Freeman provided Respondent with a pretext to discharge Navas for union activities. It is not reasonable to accept the argument advanced by the General Counsel that the disruption in the Company's operations, admittedly not taking more than 5 or 10 minutes, plus the additional shred of evidence that the Company had ascertained by contact with a previous employer that Navas was allegedly a union troublemaker, provides a sufficient basis for drawing an inference that the discharge was pretextual. From all of the above it is clear that Navas was terminated for reasons having nothing to do with union activities. The only mention of union activities that appears on the record is the statement made by Navas at the time of his discharge that he was being discharged for union activities. I conclude and find that Navas was not discharged for union activities and I therefore recommend that the complaint be dismissed in its entirety. Upon the basis of the foregoing finding of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. Respondent has not violated 8(a)(3) and ( 1) of the Act. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety.