Hi-Craft Clothing Co.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1310 (N.L.R.B. 1980)

1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hi-Craft Clothing Co. and James J. Jiorle. Case 4
CA-10028
August 27, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On March 31, 1980, Administrative Law Judge
Sidney J. Barban issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed an answering brief.
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, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Hi-Craft Cloth-
ing Co., Philadelphia, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
MEMBER TRUESDAI-I, dissenting:
As found by the Administrative Law Judge, the
credited facts in this case are rather simple. Jiorle,
an admitted supervisor, did not receive a $1,000
bonus he believed had been promised him at
Respondent has excepted to certain credibility findings made bh the
Administrative law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect Io credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard DrO WUall 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
We agree with the Administrative Law Judge that the policy fasor-
ing free access to the Board's procedures requires finding that Respond-
en violated Sec 8(a}(4) by discharging Supervisor Jiorle for asserting
that he intended to go to thlie Board for assistance in his bonus dispute
We find the principles enunciated in General Servicer. Inc1., 229 NLRB
940 941 (19q77), to be applicable here, particularly the notion that "if the
Board is to perform its statutory function of remedying unfair labor prac-
tices its procedures must he kept open to individuals who "ish to initiate
unfair labor practice proceedings, and protection must be accorded to in-
dividuals who participate in such proceedings." Therefore, an employer
must refrain from discriminating against an individual fior indicating an
intent to go to the Board since its is the Board's function, and not the
employer's. to decide whether the individual is covered by the Act and
his claim has merit.
251 NLRB No. 173
Christmas 1977. He was told he was entitled to
only $500 because he had not been employed for a
full year. However, when he again received only
$500 at Christmas 1978, Jiorle complained to Re-
spondent's manager and vice president. Jiorle's re-
peated complaints led to a meeting on March 2,
1979, at which Respondent advised Jiorle that he
would not be getting any further bonus (although
he would receive a "4% profit sharing"), and that
the matter was closed. The matter was not closed
as far as Jiorle was concerned, however, and on
March 6 he advised Manager Constantino that he
could not forget about the matter and that he was
"going to the Labor Board." At Constantino's sug-
gestion, Jiorle called the Vice President Koren.
When he reiterated his intention to seek the Labor
Board's assistance, Jiorle was discharged.
On the basis of the above facts, the majority, re-
lying on General Nutrition Center, 221 NLRB 850
(1975), and General Services. Inc., 229 NLRB 940
(1977), affirms the Administrative Law Judge's
conclusion that Jiorle's discharge for threatening to
invoke the NLRB's aid is violative of Section
8(a)(4). I disagree.
The question of a supervisor's coverage under
Section 8(a)(4) was first raised in Briggs Manufac-
turing Company, 75 NLRB 569. Although Briggs
was decided December 16, 1947, by which time the
Taft-Hartley amendments had been enacted, the su-
pervisory discharge occurred under the Wagner
Act where the status of supervisors as employees
was an open question. For this reason, most of the
discussion in Briggs is in terms of Section 8(4) (not
Sec. 8(a)(4)) and the Wagner Act's definition of the
term "employee." Rejecting the employer's defense
that Taft-Hartley excluded supervisors from the
Act's protection, the Board held that the amend-
ments "did not operate retroactively to extinguish
liabilities for unfair labor practices committed prior
to August 22, 1947." Accordingly, from an analyt-
ical standpoint, Briggs provides little, if any, guid-
ance.
This issue did not arise again for nearly 30 years,
until General Nutrition Center, supra.: In General
Nutrition, five women, one a conceded supervisor,
visited the Pittsburgh Regional Office and filed a
charge based on their unhappiness with presssure
from management and their dissatisfaction over
other working conditions. All five were discharged
when they attempted to return to work after visit-
ing the Regional Office.
In finding a violation with respect to the supervi-
sor, the Administrative Law Judge relied on the
:' Wirrt Nationaul Bank & lruit Co. 209 NLRB 95 (1974), cited by Ad-
niistrative lBa Judge Sidney Harhall. is ilappisile in that a all tilles
tlie discrimimatee was an employee. not a supers i,or
Il-CAF CHIN( C) 131 1
"fear" rationale; i.e., that the discharge of a super-
visor for filing a charge would lead employees to
fear that the employer would punish them for en-
gaging in the same conduct. As precedent the Ad-
ministrative Law Judge cited a number of cases
(see fn. 46), all of which involved a supervisor who
gave testimony or provided an affidavit to the
General Counsel. Further, all the cases relied on by
the Administrative Law Judge in General Nutrition
found the supervisory discharge violative under
Section 8(a)(1), but, since the remedy would be the
same, deemed it unnecessary to determine whether
Section 8(a)(4) was violated.
The only full-blown discussion of a supervisor's
discharge under Section 8(a)(4), rather than Section
8(a)(1), is in General Services, Inc., supra, where a
divided Board found that the meaning of the term
"employee" under Section 8(a)(4) of the Act must
be read broadly enough to include a supervisor
who alleged that respondent refused to rehire him
because he had filed an earlier charge alleging that
he had been discharged in violation of Section
8(a)(3) for engaging in union activity. Because of
the majority's reliance here on that case, it is well
to review the facts of General Services in some
detail.
After filing his original 8(a)(3) and (1) charge,
Supervisor McCracken, at the suggestion of the
Board agent, informed the Respondent that he
would like to be reinstated to his former job. Based
on his supervisor's assurances that rehiring was
almost a certainty, McCracken withdrew his unfair
labor practice charge. Ten days later, McCracken's
supervisor advised him that no action would be
taken on his request for rehiring until the charge
was withdrawn (which it already had been) and
probably not until an ongoing election campaign
was over.
Five months later, still within the 10(b) period,
McCracken, who had not been rehired, filed a
second charge alleging violation of Section 8(a)(l)
and (3) in connection with his discharge. This
charge was dismissed on the ground that
McCracken had been found to be a supervisor in a
related representation proceeding. McCracken then
filed an 8(a)(l) and (4) charge alleging he had not
been rehired because of the earlier charge he had
filed.
Affirming the Administrative Law Judge's find-
ing that McCracken was not rehired because of the
prior charge he had filed, the Board held that the
refusal to rehire was violative of Section 8(a)(4).
As precedent for the proposition that the approach
to Section 8(a)(4) has been a liberal one, including
under its protection supervisors, the Board cited
General Nutrition, supra. As noted above, however,
General Nutrition relied upon prior cases in which
the Board found a violation of Section 8(a)(I) and
found it unnecessary to consider whether the dis-
charge violated Section 8(a)(4).
As set forth in greater detail in my dissents in
DR W Corporation. d/b/a Brothers Three Cabinet.
248 NLRB 828 (1980), and Sheraton Puerto Rico
Corp. d/b/a Puerto Rico Sheraton Hotel, 248 NLRB
867 (1980), 1 fully agree with Board and court de-
cisions that, in certain circumstances, none of
which are present here, the discharge of a supervi-
sor may violate the Act. Thus, an employer may
not discharge a supervisor for giving testimony ad-
verse to an employer's interest at an NLRB pro-
ceeding 4 or during the processing of an employee's
grievance under the collective-bargaining agree-
ment.5 Similarly, an employer may not discharge a
supervisor for refusing to commit unfair labor prac-
tices, 6 or because the supervisor fails to prevent
unionization, 7 or because the supervisor warned a
rank-and-file employee that the employer was
"building a case" against the employee.8 In all
these situations, however, the protection afforded
supervisors stems not from any statutory provisions
for supervisors, but rather from the need to vindi-
cate the employees' exercise of their Section 7
rights.
In my view, the discharge of a supervisor under
Section 8(a)(4) does not, from an analytical stand-
point, differ from a supervisory discharge under
Section 8(a)(1). Accordingly, for the reasons set
forth in Brothers Three Cabinets, supra, I am unable
to find a violation of the Act in connection with
Jiorle's discharge.
As noted above, in affirming the Administrative
Law Judge, the majority relies on Genera! Nutri-
tion Center, supra, and General Services, Inc., supra.
As to General Nutrition, the "fear" rationale relied
upon by the Administrative Law Judge was reject-
Bettrrer .onA,' Grip Colmpanv. 115 NIRB 1170 (1956), cnfd 243 F 2d
836 (51h Cir 1957): Modern Linen Laundry Service. Inc. I16 NIRB
1974 (1956) Dal-i* Optical Company. Inc.. 131 NRB 715. 730 731
(1961). enfd 310 F2d 58 (5th Cir 1962): Oil C Bra, irki., 14'
NILRB 27 (1964), enfd 357 F.2d 466 (51h Cir 1966hh: lca & t, Vitat.
Incorporated. 155 N RH 39 (19h5), enforcement denied 314 F 2d lh6
(4th Cir. 167)
Ebasco, Services, Incorporaturd. 181 NLRB 768 (1970) Rohr Induitriw¢,.
In,. 220 NlRB 1029 (1975)
i'ail .Uunulacruring Company, 61 NLRB 181 (1945). enfd 158 F2d
hh4. 66 hhhh7 (7th Cir 1947),; Inter-City 4derrising Co oJ Gnreensboro
,\;orih (Curlina. Inc. 89 NIRB 1103 (1950). enfircement denied uh norn
Inrlr-('izv 4d,vcring ('o. o(f Churlorrtte. C, 190 F 2d 420 (4th Cir 1951 ):
Jacikoln il faunuiicuring Company. 122 NIRB 764 (1958): Miunmi Coca
(ila Botriirg Compuny d.ha'a KeY West Coa-(orla Botthlng Ciomipanys. 140
N R 1359 1963) Becher Iwh-ing Compan. 218 NRB 446 (197).,
enfd 6hl4 1: 2d 88 (5th Cir 198))
lulludgau Coion lrrctorv. In-, 106 NL.RH 295 (1953). cntd 211 F 2d
209. 215 217 (5th Cir 1954)
H Buddles Super .Muarketr. 223 NIRHB 95) (197h). enfircement denied
550 F 2d 39 (5th Cir 1977)
til-CRA Fl Ci OTHING C( 1
1 312 DECISIONS OF NATIONAL LABO()R RELATIONS 3()ARI)
ed by the Fifth Circuit Court of Appeals in Oil
City Brass Works v. N.L.R.B., 357 F.2d 466. What
the court had to say in Oil City Brass, which in-
volved a supervisor discharged for testifying at a
Board hearing, is equally applicable here:
While the cases are not entirely clear, we
hold that whether rank-and-file employees
would be put in fear by Hammock's discharge
is irrelevant and merely clouds the real issue.
Any time an employee, be he supervisor or
not, is fired for union activity rank-and-file
employees are likely to fear retribution if they
emulate his example. But the Act does not
protect supervisors, it protects rank-and-file
employees in their exercise of rights. If the
fear instilled in rank-and-file employees were
used in order to erect a violation of the Act,
then any time a supervisor was discharged for
doing an act that a rank-and-file employee may
do with impunity the Board could require re-
instatement. Carried to its ultimate conclusion,
such a principle would result in supervisory
employees being brought under the protective
cover of the Act. Congress has declined to
protect supervisors and the courts should not
do by indirection what Congress has declined
to do directly. The principle that precludes re-
instatement where a supervisor is fired for
union activity, even though it instills fear in
rank-and-file employees, also precludes rein-
statement where that fear is instilled because
of testimony given by the supervisor. [357
F.2d at 470.]
Although rejecting the Board's rationale, the
Fifth Circuit enforced the Board's order "not be-
cause [the supervisor's discharge] put employees in
fear but because it interfered with, restrained or co-
erced them in the enjoyment of their rights secured
under the statute." Equally pertinent is the court's
observation that the Board is empowered "to pro-
tect rank-and-file employees by allowing supervisors
to perform their statutory duties without fear."
(Emphasis supplied.) In this regard, unlike the facts
in Oil City Brass, it is uncontroverted that Jiorle
acted entirely on his own behalf and that Jiorle had
not contacted or consulted with employees. Fur-
ther, there is a complete lack of evidence that any
rank-and-file employee had difficulties with Re-
spondent regarding wages or other benefits or that
any other employee sought access to the Board. In
these circumstances, the instant case is plainly dis-
tinguishable from General Nutrition on its facts. 9
I Board decisions in supervisory discharge cases under Sec. 8(a)( 4 )
have resulted in the same confusion and inconsistency as the "integral
part" or "conduit" line of supervisory discharge cases under Sec. 8(atlI)
Compare, for example. General Nutrition with Karl Kristofyerson and Sig-
With respect to General Services, Inc., I believe
that it was wrongly decided and I would not
adhere to it. The majority opinion in General Serv-
ices emphasizes the fact that the supervisor in-
volved was unsure of his status as a supervisor."'
Aside from the inherent difficulty in administering
such a subjective test, this approach is inconsistent
with the Board's objective approach in other areas.
Thus, the Board has held, in effect, that parties
proceed at their peril in such areas as (1) an em-
ployer's good-faith belief that an employee engaged
in serious strike misconduct, 1 or (2) an employer's
good-faith, but mistaken, belief that salesmen were
not employees,'2 and (3) the determination wheth-
er an employee's refusal to cross a picket line is
protected. '
Indeed, the Board has followed precisely this ap-
proach in determining whether an employer vio-
lates Section 8(a)(3) by discharging an alleged su-
pervisor for engaging in union activity. Thus, in
situations where the evidence establishes that the
reason for the discharge was participation in pro-
tected union or concerted activity, the Board has
found a violation of Section 8(a)(3) if the alleged
supervisor is, in fact, an employee.' 4 Conversely,
the Board has found no violation where the em-
ployer has established that the dischargee is a su-
pervisor within the meaning of the Section 2(11) of
the Act. 5 I see no reason why Section 8(a)(4) re-
quires a different approach.
In General Services, supra, the majority also
stresses that dismissal of McCracken's complaint
under Section 8(a)(4) would discourage the filing
of charges and is tantamount to concluding that the
respondent, not the Board alone, "was privileged
valid Khristojfer.on Co-partners d/hb/a United Painting Contractors. 184
NLRB 159 (1970) In both cases. a supervisor made common cause with
rank-and-file employees. to file a charge in General Nutrition, to engage
in concerted activity in United Painting Contractors. The cases differ in
the result, with the Board finding a violation and reinstating the supervi-
sor in General Nutrition. but dismissing the complaint in United Painting
Contractors in regard to the supervisor
I' Although alluding to the supervisor's uncertainty, the only evidence
that the supervisor in General Services was unsure of his status as a super-
sisor is the fact that he had previously filed an 8(a)(1
3
) charge--a charge
that was dismissed when the Regional Director concluded that he was. in
fact, a supervisor under the Act If this test is made the touchstone, the
net result would be that any supervisor who filed a charge and is not all
'"employee" fr 8(a)(3) purposes is somehow an "employee" under Sec.
8(a)1(4)
See N.L.R.B Burnup and Sinmv Inc.. 379 U.S. 21 (1964).
L See N I.R.B. v. Bardahl Oil Company. 399 F 2d 365. 368-170 (th
Cir. 1968).
i'' See The Capital Times Company. 234 NLRB 309 (1978)
4 See Orr Iron. Inc. 207 NLRB 863 (11973). enfd 508 F.2d 1305 (71h
Cir. 1975); New Castle Lumber and Supply Co., Division of Peter Kuntz
Co., 199 NLRB 685 (1972); United Resources. Inc. and Country Club oJ
Miami Corporation 200 NLRB 914 (1972; Montgomery Ward Co.. 198
NLRH 52 (1972); White Cross Stores,. Incs. 186 NLRB 492 (1970).
" See Sopps. Inc., 175 NLRB 296 (1969) Rval Fork of Washington.
Inc., 179 NLRB 185 (1969): Walker lowing Corporation. 190 NLRB 671)
(1971 ): Stop and Go oods. Inc., 246 NL.RB No 170 (1979)
HI-CRAFT CLOTHING C. 1313
to decide that McCracken's 8(a)(3) charge was un-
meritorious because he was a statutory supervisor
and hence beyond the protections of the Act." In
addition to being somewhat disingenuous, this por-
tion of the majority opinion has a "Catch-22"
aspect to it. Thus, the Board cannot make the de-
termination it claims it has the sole power to make
unless a charge is filed-an eventuality which will
not be forthcoming unless the employer acts first
by effectuating the discharge.
I agree with the majority that the Board should
do all that it can to see that employers and unions
do not impede access to the Board. However,
access to the Board is not an incantation that can
somehow transform a supervisor into an employee
and confer statutory rights upon a class of individ-
uals that Congress has expressly excluded from the
Act's coverage. As noted previously, Jiorle's dis-
charge was occasioned by a dispute over the
amount of bonus he was entitled to receive as a su-
pervisor. Jiorle's activity was strictly on his own
behalf and occurred in a context where there was
no union or concerted activity among rank-and-file
employees. In these circumstances, there is no
reason to believe that the discharge of Supervisor
Jiorle as the result of filing a charge interfered with
the exercise of employees' rights under Section 7,
nor in the circumstances can I reasonably conclude
that Jiorle's discharge would deter rank-and-file
employees from seeking the Board's assistance. Ac-
cordingly, I dissent and would dismiss the com-
plaint in its entirety.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to discharge, or dis-
charge, or take other adverse action against
any supervisor, or against any employee, be-
cause he or she asserts a right to seek the as-
sistance of the National Labor Relations
Board, or has sought the assistance of the
Board, or has filed a petition or charge with
the Board, or has given testimony under the
National Labor Relations Act, as amended.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights under the Act.
WE WILL. offer James J. Jiorle immediate
and full reinstatement to his former position
or, if that position no longer exists, to a sub-
stantially equivalent position, without preju-
dice to his seniority or any other rights or
privileges previously enjoyed, and W wit I.
make him whole for any loss of pay or benefits
which he may have suffered by reason of his
discharge, plus interest.
HI-CRAFT CLOTHING CO.
DECISION
STATiMEN OF HEI CASE
SIDNEY J. BARBAN, Administrative Law Judge: This
matter was heard at Philadelphia. Pennsylvania. on Sep-
tember 17, 1979, upon a complaint issued on April 30.
1979, based on a charge filed on March 8, 1979, by the
above-named Charging Party (herein Jiorle). The com-
plaint alleges that the above-named Respondent violated
Section 8(a)(4) and (1) of the National Labor Relations
Act (herein called the Act) by discharging Jiorle because
he informed Respondent of his intention to seek the as-
sistance of the National Labor Relations Board (herein
referred to as the Board or the Labor Board). The
answer denies the commission of the unfair labor prac-
tices alleged.
Upon the entire record in this case, from observation
of the witnesses and their demeanor, and after considera-
tion of the briefs filed by the General Counsel and Re-
spondent, I make the following:
FINDINGS ANI) CONCLUSIONS
I. THE COMPANIES INVOLVED
Respondent, which is wholly owned by Samuel Stern-
berg, is engaged in the wholesale manufacture and sale
of wearing apparel. Its principal offices are in Philadel-
phia, Pennsylvania. Respondent employs the services of
a number of subcontractors in the course of its oper-
ations, among them an operation named Unami Creek
Pants Company (herein called Unami), which, it is assert-
ed, is owned by Samuel Sternberg's son, Harvey Stern-
berg, and his sister. It appears that Unami. located in
Sumneytown, Pennsylvania, produces pants and skirts
for Respondent exclusively. Respondent contends that
Jiorle was employed by Unami, not by Respondent, and
thus the General Counsel is asserted to be proceeding
against the wrong entity. However, as the General
Counsel points out, Respondent, in its answer to the
complaint, attested to by Paul Koren, vice president of
Respondent, alleges, in pertinent part, that though Re-
spondent did not discharge Jiorle, he "voluntarily re-
signed from his employment with Respondent .... [and]
was hired in a substantially equivalent position with an-
other company within three weeks of leaving the employ
of Respondent." (Emphasis supplied.) The General Coun-
sel argues, in effect, and I find that this is an admission
against interest on which he was entitled to rely. Fur-
ther, the record as a whole not only supports this admis-
sion, but leads to the conclusion that Respondent and at
least some of its asserted subcontractors, including
Unami, comprise an integrated enterprise which was
controlled and directed by Respondent.
Hi-CRAFT CLOTHING CO 3
1314 DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD
Jiorle was interviewed and hired as manager of Unami
by Frank Constantino, who was, and continues to be, the
manager of still another subcontractor of Respondent, re-
ferred to as the John Renninger Company, located at
Quakertown, Pennsylvania. There is no evidence as to
who directed Constantino to interview and hire Jiorle,
but the record makes clear that while Constantino asserts
that he had no official connection with Unami, he is, as
he described it "more or less like an overseer [for
Unami]; . . . I try to see that the products all look the
same from Renningers and Unami . . . we're getting
some new styles; and they asked if I would do them a
favor and see if the styles are coordinates with ours the
same way." The record does not further identify the
"they" to whom Constantino referred, but the inference
is compelling and I find that Constantino in this instance,
as in others referred to herein, was acting at the direc-
tion of Respondent to supervise the production process
and the employees involved, in the interest of Respond-
ent. At one point, Costantino, under some pressure on
cross-examination to identify a document, and after seek-
ing to evade the issue, finally asserted that the document
"referred to me when I first worked for Hi-Craft," then
sought to recover by adding, "when I worked for Ren-
ningers ten years ago." Later he referred to the docu-
ment as pertaining to the time "when I first worked for
Hi-Craft through John Renninger, Incorporated, to
Sternberg at the time."
When Jiorle called Constantino, according to the
latter, to say he was quitting, Constantino states that he
told Jiorle to call Koren, Respondent's vice president
(with no mention of Harvey Sternberg, the asserted
owner of Unami), and Constantino says he called Koren,
himself, to discuss the matter. As discussed in more
detail hereinafter, Koren asserts that he considered the
matter so important to Respondent that he and Constan-
tino immediately went to the Unami plant to see Jiorle,
they say to persuade him not to leave. Jiorle asserts that
on this occasion Koren fired him.
As set forth hereinafter, on several occasions, Samuel
Sternberg, who purportedly has no ownership interest in
Unami, made decisions as to Jiorle's compensation which
Samuel Sternberg personally communicated to Jiorle. It
is further not without significance that at the time of the
hearing, Samuel Sternberg had taken his son Harvey into
the operations of Respondent to prepare his son to take
over the operation of the business when his father relin-
quished the reins.
On the basis of the above, and the record as a whole, I
find that at the times material to this case, Respondent
was the employer of Jiorle, either as an integrated enter-
prise with Unami or as a joint employer with that oper-
ation. Cf. Bryar Construction Company, et al., 240 NLRB
102 (1979).
The record shows that Respondent purchased and re-
ceived goods valued in excess of $50,000 directly from
firms located outside the Commonwealth of Pennsylva-
nia.
II. CREDIBILITY
The critical facts in this matter (other than the rela-
tionship of Respondent to Unami and its other subcon-
tractors referred to above) involves what was said in
telephone calls between Jiorle and Constantino, and
Jiorle and Koren on March 6, 1979, and between the
three of them at a meeting at Unami on the same day.
More specifically, the issue is whether Jiorle on these oc-
casions said he was going to quit his employment (and
actually did so), or did Koren tell Jiorle that he would
be fired if he took his work-related problem to the
"Labor Board," and did he actually fire Jiorle on the
afternoon of March 6 for that reason.
Only 4 witnesses testified at the hearing: Jiorle for the
General Counsel; Koren, Constantino, and Geraldine
Ramsey (a bookkeeper and former secretary to Jiorle at
Unami) for Respondent. It is not difficult to find a basis
for questioning the reliability of the testimony of each of
them. Jiorle tended, either through emotion or tension,
not to listen to questions and "shoot from the hip" with
answers that are sometimes imprecise, ill-considered and
ill-expressed. Some examples are referred to hereinafter.
However, on critical points, as indicated below, I believe
that he gave more reliable testimony than the other wit-
nesses.
Constantino's testimony tended to be contradictory,
evasive, and confusing. I was not impressed with him as
a witness and I do not credit his testimony except as may
be consistent with specific findings made herein. Ramsey
asserts that she overheard what Jiorle said to Constan-
tino and to Koren on the telephone on March 6 (though
she did not hear what they said to Jiorle). She had no
particular reason to listen to these conversations and at
the time was busy making payroll computations using a
calculator. I have serious doubts that Ramsey is able to
well recall just what was said during these conversations
as to some points in issue. Thus as to one crucial issue-
whether Jiorle said he was going to the Labor Board
with his grievance-her testimony differs from that of all
the other witnesses (she says that Jiorle said that he was
going to the U. S. Department of Labor). I have the
strong impression that her recollection that Jiorle said he
was leaving his job was more an interpretation than a
recall of what was actually said.
Koren's testimony troubles me in two substantive as-
pects. First, I was put off by his apparent lack of candor
in describing the relationship between Respondent and
Unami. In sum, his assertion was that the relationship
was a business relationship between two separate and in-
dependent entities, but his actions and testimony con-
cerning Unami, as well as the record as a whole, belie
this. Secondly, Koren's reasons for his precipitate trip to
Unami on March 6 for a meeting with Jiorle do not quite
seem to match the facts. Koren says that in Jiorle's tele-
phone conversation with him on that morning, Jiorle said
that the floorlady, Laura Wagner, was leaving, and that
he was leaving, too. Koren testified that he became
"very concerned" because Jiorle was an essential person
in the operation (and even more so if the floorlady left),
and on March 6, when he received the information, "'we
didn't have anybody [to replace him]; it would have
meant that Frank would have probably had, Mr. Con-
----
HI-CRAFTI C.()THING C() 1315
stantino would have had to go over there."' Thereafter
Koren testified that if Jiorle "left and Laura left, we
would not have had any supervisory help there at all."
(Emphasis supplied.) However, the record shows that
Koren was not faced with an immediate loss of both
Jiorle and Wagner, or either of them, on March 6. Thus
the record is clear that both Koren and Constantino
were informed that Wagner would work her notice out
(a week, or 2 weeks),2 and none of the witnesses asserts
that Jiorle said that he was leaving immediately, or
before Wagner did. The facts thus indicate, and I find,
that Koren went to Unami on the afternoon of March 6,
and took Constantino with him that day, not because he
expected Jiorle to leave immediately, but because he in-
tended to replace Jiorle with Constantino.
The findings of fact set forth below are based upon my
consideration of the entire record and the testimony of
all the witnesses (in light of my assessment of their credi-
bility), and upon the reasonable inferences to be drawn
from the evidence. To the extent that the testimony of
any witness is not consistent with the findings made, I
have discredited that testimony.
Respondent, however, argues that, notwithstanding
my personal conviction as to the credibility of Jiorle,
from my observation of the witnesses and study of the
record, I may not, nevertheless, rely on his testimony on
the ground that "the uncorroborated testimony of the
party who stands to benefit from an award of back pay
may not constitute substantial evidence to sustain an
award," citing three decisions of the Court of Appeals
for the Sixth Circuit.:' With all due respect, I must de-
cline to follow those decisions, because I believe that the
Supreme Court precedent binding on me, as well as the
recently enacted Federal Rules of Evidence, are to the
contrary.
As discussed in McCormick on Fvidence (2d Ed. West
1972) at 142-143, the ancient common law rule which
"excluded the testimony of the parties to the lawsuit and
of all persons having a direct pecuniary or propietary in-
terest in the outcome" has been almost entirely discarded
in modern jurisprudence. The new Federal Rules pro-
vide, in Rule 601, that "Every person is competent to be
a witness except as otherwise provided in these rules."
The advisory committee's note on this rule states: "This
general ground-clearing eliminates all grounds of incom-
petency not specifically recognized in the succeeding
rules of this Article. Included among the grounds thus
abolished are . . . connection with the litigation as a
party or interested person . . . ." If Jiorle is competent
to testify as a witness in his own behalf, as is clearly the
I It is noted that though Koren stated that "we" didn't have anyone to
replace Jiorle, and that he as considering transferring Constantino to
Unami, he also continued to insist that Respondent had no responsihilit
to provide supervision for Unami Also noteinorth is the complete lack
of any cesidence that Ihe nominal ouners of tUnami s ere consulted o*r ad-
, ised
2 Both Cnslantino and R , e testified 11 this effect Since lhis
would be logical, and they confirm rme another on this point wshich was
not controversial, and no fine contradicts them on the point. I have cred-
ited this part of their estimlons
3 N.L.R.B v Ogle Prorteclt.n Seriwc. Inc.. 375 F 2d 497 (6th Cir 19h7}i
.VL..R.B s Eha Brotheri Big B,,r. In. 327 F 2d 421 (th Clr l9t,4)
.NIL.R B Bar/brior Plui, Product I,ii, 354 F 221 6h (lth (ir 1965i
case, I fail to see hy he can't be credited. If not. we
are, in fact, holding him incompetent.
Further, the decisions of the Court of Appeals for the
Sixth Circuit, in fact, set up a special rule applicable only
to cases where employees have been terminated from
employment in violation of the Act. The Supreme Court,
in N.L.R.B, .v. Walton Manufacturing Company & Logan-
villh Pants Co., 369 U.S. 404 (1962), considered a similar
rule that had been established by the Court of Appeals
for the Fifth Circuit, and held that this was not an ap-
propriate rule or standard by which to decide such cases.
11tt. I l A I (ic) VtIO ATION OF I FH C I
A. The Facts
Introduction
Jiorle was employed in April 1977 by Constantino as
manager of Unami, in which position it is agreed he was
a supervisor within the meaning of the Act. There is a
dispute as to whether Constantino promised Jiorle on
this occasion that he would receive a bonus of $1,000 at
Christmas that year. However, it is clear beyond ques-
tion that Jiorle was convinced that he was promised the
bonus. When Jiorle received only $500 as a bonus that
Christmas, he complained about this to Constantino, and,
much later, to Harvey Sternberg, who told Jiorle that he
had not been employed long enough, that when he had
been employed there a full year he would get the bonus.
When Jiorle was employed he had also been promised
a $50 raise after the first of 1978. When this was not
forthcoming, Jiorle also complained about this to Con-
stantino, and later to Harvey Sternberg, who told Jiorle
that he would be hearing from Harvey Sternberg about
this in a few days. Shortly thereafter, Jiorle received a
call from Samuel Sternberg, the owner of Respondent,
telling him that since he had now been employed for
over a year, he would get the raise. Jiorle did receive the
raise.
When Jiorle received only a $500 bonus at Christmas
in 1978, he complained to Constantino and to Koren, the
vice president of Respondent. Both said that they would
look into the matter; later both told Jiorle that he would
get the remainder of his bonus in January 1979, when
James Seacrest, the manager of still another of Respond-
ent's subcontractors (also assertedly owned by Harvey
Sternberg) received his bonus. When Jiorle did not re-
ceive the remainder of his bonus in January, he again
spoke about this to Koren, who said he was still looking
into the matter. Jiorle's testimony indicates that he was
constantly complaining about the failure to give him the
bonus he had been promised.
At a meeting of Respondent's subcontractors held in
Respondent's offices in Philadelphia on Friday, March 2.
1979, Samuel Sternberg said that he was going to give
Seacrest and Jiorle a "four percent profit sharing." Jiorle
clearly did not understand how this would be computed
and was not satisfied that it would benefit him. but said
nothing at the time. After the meeting. Koren and
Harvey Sternberg took Jiorle aside and told him that he
would not he getting the additional 5(X) bonus about
which he had been complaining, telling him that he had
HI-CRAF COTHING C
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not been promised a $1,000 bonus in the first place, that
the profit sharing would be more advantageous to him,
and that "the matter was closed."
On Monday, March 5, Floorlady Wagner informed
Jiorle that she was quitting, to go to work for another
employer. Jiorle attempted to talk her out of it, and she
agreed to reconsider overnight. The next morning,
March 6, after Jiorle had made phone calls to Constan-
tino and Koren, discussed in more detail below, to alert
them that Wagner had given notice, she advised Jiorle
that she had decided not to quit. 4
The Events of March 6
1. The calls to Constantino and Koren
On the morning of March 6, Jiorle called Costantino
to advise him that Floorlady Wagner had "given her
notice," and would be leaving in 2 weeks. Jiorle asked if
Constantino were "going to try to go to bat for me on
the Christmas bonus," to which Constantino replied that
Jiorle should "forget it," that the issue had been settled
on Friday at the meeting in Respondent's offices. Jiorle
answered that he couldn't forget the matter, and asserted
that he was "going to the Labor Board" to see what
they could do to help him. Constantino sought to dis-
courage him, saying, "What the hell do you want to do
that for?" and advised Jiorle to call Koren.
After talking to Constantino, Jiorle called Koren and
advised him of Wagner's leaving at the end of her notice.
Jiorle asked Koren if he were coming to Unami, explain-
ing that he wanted to talk with Koren further about his
bonus. When Koren responded that the matter had been
settled on the previous Friday, Jiorle then said that in
that case he was going to see the Labor Board about his
problem.5 Koren told Jiorle that if he did this he could
"no longer work for this firm." When Jiorle persisted,
saying that if he could get no further satisfaction from
the employer, he would go to the Board, Koren said,
"That's got to be it." When Jiorle said that it appeared
that he was fired, Koren concurred, but then told Jiorle
to "wait," that he was coming up to Unami.
In these conversations, Constantino, Koren, and
Ramsey assert that Jiorle, after saying that Wagner was
leaving (at the end of her 2-week notice, according to
Constantino and Ramsey), also said he was leaving be-
cause he couldn't work for a firm that didn't keep its
promise, and was going to see the Labor Board (Ramsey,
as has been noted, recalls the "U. S. Department of
Labor").
Jiorle denied that in his calls to Constantino and to
Koren on March 6, or in the meeting with Constantino
and Koren later that day, he said that "he couldn't work
for somebody that didn't keep their promises." He also
denied that he ever said he was quitting. 6 I credit Jiorle's
4 Jiorle became quite confused as to this sequence of events This may
have been due to an inability to correlate dates and days of the week
However, Jiorle's testimony supports the findings made. There is no testi-
mony to the contrary by any other witness.
5 It seems clear that none of the witnesses was knowledgeable about
the Board or its functions.
6 In one instance, on cross-examination he testified as follows: Q.
Now did you say you were quitting? A. To who-Frank? Q Mr Costan-
tino? A. Oh yes Oh no, I didn't say I was quitting; I said I was going to
denial that he said he was quitting or leaving his employ-
ment on these occasions.
I have noted, however, that Jiorle does seem to have
been much concerned in his mind about the fact that his
employer had not kept its word. Thus, in response to a
query as to why he was not interested in "the four per-
cent bonus" offered by Samuel Sternberg, which would
be confirmed in writing, Jiorle asserted, "I felt that if
they didn't keep their promise to me . . . I would be
going through the same thing as I am going through
now . . . I thought that if a man can't be as good as his
word, what good is the paper." I would infer that prob-
ably on these occasions, as on others, in talking about the
bonus, Jiorle expressed his dissatisfaction with Respond-
ent for not keeping its word, without expressing an
intent to terminate his employment. I am satisfied that
Respondent's witnesses from this and from Jiorle's state-
ment that he was going to the Board with his problem
derived their interpretation that Jiorle was leaving his
employment.
2. The meeting
When Koren and Constantino arrived at Unami during
the afternoon of March 6, Jiorle was at work on the pro-
duction floor and was summoned to the meeting. I credit
Jiorle that at this meeting the following occurred: Koren
asked if Jiorle had decided what he was going to do;
Jiorle replied that he understood from the telephone call
that he was fired; Koren then asked if he had changed
his mind, to which Jiorle replied only if he got "the
money." Koren said that matter had been settled on
Friday; Jiorle said, "I guess I'm fired then." Koren re-
plied, "I guess so," and said, in response to Jiorle's offer
to finish the week, that he might as well leave now. Con-
stantino, nevertheless, wanted to continue the conversa-
tion, which went on for some time, during the course of
which, Koren told Constantino, "You don't understand,
Frank . . . if the man goes to the Labor Board, he can
no longer work for this firm."
During the course of this meeting, Constantino and
Jiorle had some unpleasant words, and Koren moved be-
tween them, to keep them apart. At the end, Jiorle asked
if he could talk to the employees before leaving, which
was granted. The employees asked what had happened,
and Jiorle told them that he had been fired because he
was going to the Labor Board "because I had been made
some promises and they weren't kept." Jiorle thereupon
left the plant.
Jiorle shortly thereafter was employed by another gar-
ment plant. Respondent argues that this indicates that
Jiorle had intended all along to leave Respondent's
employ. But the evidence is not sufficient to support
such a finding.
the Labor Board; I never said I was quitting" Respondent argues that
Jiorle thereby admitted that he was quitting. However, the sequence of
questions and answers, the record as a whole, and my assessment of the
credibility factors convinces me that Jiorle's affirmative answer on this
occasion was merely an affirmation that the conversation was with Cos-
tantino.
HI-CRAFT CLOTHING C. 117
B. Analysis and Conclusions
When Jiorle, a supervisor within the meaning of the
Act, asserted that he intended to go to the Labor Board
concerning a bonus which he claimed that Respondent
owed him (and which Respondent disputed), Respondent
threatened to discharge him. When he persisted in that
position, Respondent discharged him. The fact that he
had been discharged for persisting in his right to go to
the Board for assistance quickly became known to the
employees, as Respondent reasonably could have antici-
pated.
The General Counsel contends that because of a
strong public policy favoring free and unimpeded access
to the Board's processes, it is necessary that even super-
visors (who are generally not protected by the Act)
should be protected when invoking, or seeking to invoke
the Board's processes. He further argues, in effect, that
such protection should not be dependent upon whether
the supervisor's asserted grievance has merit under the
provisions of the Act (as this one did not), for if the pro-
tection afforded by the Act is made to depend on the ap-
plicant's knowledge of the law, or his ability to antici-
pate the rulings of the Board or the Courts, an applicant
for the Board's aid is indeed inhibited and does not have
free access to the Board's processes.
The Board's decisions fully support these arguments.
Thus, in General Nutrition Center, Inc., 221 NLRB 850
(1975), where a supervisor and four employees were
threatened with discharge when they expressed an intent
to take their grievances to the Board ("if you all go . . .
you're all done," 221 NLRB at 855), and were dis-
charged for actually going to the Board's regional office,
the Board held that such action (including that against
the supervisor) violated Section 8(a)(4) and (1) of the
Act, even though the grievances there involved were not
such that the Board would entertain. See also General
Services, Inc., 229 NLRB 940 (1977), and First National
Bank & Trust Co., 209 NLRB 95 (1974).
Respondent argues, however, that "[wlhile the Board
may indeed have an interest in protecting access to its
processes . . . there is a countervailing interest in pre-
venting misuse of the Board's processes and protections
for extortionate purposes totally unrelated to the rights
of employees which the Act seeks to protect." But I find
no misuse of the Board's processes here. Jiorle may well
have sought to strengthen his position in his dispute with
Respondent over the bonus by threatening to go to the
Board with his grievance, but I find no basis for labeling
that action as "extortionate." The gist of Respondent's
argument seems to be that Jiorle's grievance was not
cognizable under the Act. But the fact that Jiorle was
mistaken in thinking that the Board could help him with
his grievance-and the fact that Respondent (though as-
sertedly unionized) seems to have been unfamiliar with
the Board's functions-does not justify Respondent's
threat to discharge Jiorle or his discharge for persisting
in his purpose to seek the assistance of the Board.
Indeed, since Respondent's actions, and the reason there-
for, speedily became known to the employees, as Re-
spondent could reasonably expect, Respondent thereby
coerced the employees in their right to free access to the
Board's processes, and interfered with the employees' ex-
ercise of the rights guaranteed them in the Act.
For the reasons stated, and on the record as a whole, I
find that Respondent. by threatening to discharge James
J. Jiorle, and by discharging him because he insisted
upon his right to take his grievance concerning his bonus
to the Labor Board, violated Section 8(a)(4) and (I) of
the Act.
CONCI USIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent, by threatening to discharge, and dis-
charging James J. Jiorle, violated Section 8(a)(4) and (1)
of the Act, which unfair labor practices affect commerce
within the meaning of the Act.
THF REMEDY
Having found that Respondent has violated Section
8(a)(4) and (1) of the Act, I shall recommend that it be
ordered to cease and desist therefrom, and take certain
affirmative action to effectuate the policies of the Act.
I shall recommend that Respondent be ordered to
offer James J. Jiorle immediate and full reinstatement to
his former position or, if such position no longer exists,
to a substantially equivalent position, without prejudice
to his seniority or other rights and benefits, and make
him whole for any loss of pay or benefits which he may
have suffered by reason of his discharge by payment to
him of a sum of money equal to that he would have
earned from the date of his discharge to the date of his
reinstatement, less net earnings during such period, as
computed in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest thereon as set forth in Isis Plumbing
& Heating Co., 138 NLRB 716 (1962), and Florida Steel
Corporation, 231 NLRB 651 (1977).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
ORDER7
The Respondent, Hi-Craft Clothing Co., Philadelphia,
Pennsylvania, its officers, agents. successors, and assigns,
shall:
I. Cease and desist from:
(a) Threatening to discharge, or discharging, or taking
other adverse action against a supervisor, or employee
because he or she asserts a right to seek the assistance of
the National Labor Relations Board, or has sought the
assistance of the Board, or filed a petition or charge with
the Board, or given testimony under the National Labor
Relations Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them under the Act.
7 In the esent no exceptions are filed as provided hx Sec 10)2 46 of he
Rules and Regulations of the National Labor Relations Board. the find-
ings, conclusions, and recommended Order herein shall. as prosided in
Sec 102 4K of the Rules and Regulations. he adopted hb the Board and
become its findings, conclusions, and Order and all otbjections thereto
shall he deemed alsed for all purposes
HI-CRAFT CLOTHIN CO. 1317
illX
DECISIONS OF NATIONAl. I.AIOR REL.ATI()NS t()ARI)
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer James J. Jiorle immediate and full reinstate-
ment to his former position or, if that position no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and benefits, and
make him whole for any loss of pay or benefits which he
may have suffered by reason of his discharge in accord-
ance with the provisions set forth in the section herein
entitled "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, person-
nel records and reports, and all other records necessary
to facilitate the effectuation of the Order herein.
(c) Post at its operations in Philadelphia, Pennsylvania,
and at Unami Creek Pants Company located at Sumney-
town, Pennsylvania, copies of the attached notice
marked "Appendix." 8 Copies of said notice, on forms
8 In the event that the Board's Order is enforced h) a Judgnent of a
United States (Court of Appeals, the words in the notice reading "lIosted
provided by the Regional Director for Region 4, after
being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
by Order of the National l.abor Relations Board" hall read "Posied 'ur-
suant to a Judgmenl of the nited States Courtl o1' Appea;ll Enfrcing an
Order of the National Lahbor Relalionls iBoard