New Vision Display, Inc.

National Labor Relations Board - Board Decisions

Jan 4, 1974

208 N.L.R.B. 127 (N.L.R.B. 1974)

NEW VISION DISPLAY
New Vision Display, Inc. and Ronald Hugar. Case
2-CA-12949
January 4, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MLMBERS JENKINS
AND KENNEDY
On September 24, 1973. Administrative Law Judge
Elbert D . Gadsden issued the attached Decision in
this proceeding . Thereafter , Respondent filed excep-
tions and a supporting 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
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions2 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, New Vision Display,
Inc., New York, New York, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
CHAIRMAN MILLER, dissenting:
In my view, Hugar was discharged for just cause
(repeated lateness) at a time when Respondent had
no union animus whatever. In fact, the only record
evidence as to Respondent's attitude about unions at
or prior to the discharge was that if the employees
wanted a union, they should be sure they got a good
one.
Hugar, having been discharged for cause, went to
this Board's office and charged, without foundation,
as I see it and as Respondent's president saw it, that
he had been discharged for union activity.
The reaction of Respondent's president was (un-
derstandably if perhaps not wholly rational) that
Hugar must, all along, have been engaging in a
personal vendetta against him, both in filing the
baseless charges and in his attempts to organize a
union, and he said so to Hugar when Hugar came to
see him seeking reemployment. It is these remarks
upon which the Administrative Law Judge relied to
establish "animus." In my view, they show only that
Respondent's president had been angered by Hugar's
baseless charge, and fall far short of establishing that
127
Hugar had been discharged in an effort to quell the
union activity.
I Would dismiss the complaint in its entirety.
i We hereby correct an inadvertent error in the first paragraph of the
Administrative Law Judge 's Decision to reflect that the charge herein was
filed on April 13, 1973
2 In adopting the Administrative Law Judge's conclusion that Respon-
dent's discharge of Ronald Hugar was substantially motivated by union
animus, we note that Respondent 's president , Weishar. gave particularly
clear indication of such motivation in telling Hugar that he considered him
to be irresponsible for taking on the activity of organizing the Union
because he felt that Hugar was out to get him or on a personal vendetta and,
also, in questioning Hugar as to why there had been so much secrecy in
organizing the Union Furthermore , Respondent 's president told Hugar at
the outset of their conversation that he could not possibly begin to discuss
Hugar's reinstatement because he had received a copy of the charge from
the NLRB . The charge alleged that Hugar had been terminated because of
his union activities
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge: Upon
a charge' of unfair labor practices filed by Ronald Hugar,
an individual, on April 3, 1973, against New Vision
Display, Inc., herein called the Respondent, the General
Counsel of the National Labor Relations Board issued a
complaint against Respondent on June 28, 1973, alleging
that Respondent had engaged in unfair labor practices in
violation of Section 8(a)(3) and (1) and Section 2(6) and (7)
of the National Labor Relations Act, as amended, herein
called the Act. Respondent filed an answer which, in
relevant part, denied the filing and the service of the charge
by Ronald Hugar; that it is an employer engaged in
commerce: that the Union is a labor organization within
the meaning of the Act; or that its discharge of employee
Ronald Hugar was related to any unfair labor practices.
A hearing in the above matter was held before me at
New York, New York, on July 17, 1973. Counsel for
Respondent elected not to submit a brief but a brief has
been received from the General Counsel and has been
carefully considered.
The Alleged Unfair Labor Practices: Background
and Sequence of Events
During and prior to August 1972 and July 31, 1973,
Joseph Weishar (Joe Weishar) was and is the chief
stockholder and president of the corporate Respondent
located at 155 East 23rd Street, New York, New York,
which is engaged in the manufacture and design of
merchandising display and promotional equipment (cloth-
ing racks and graphic pieces which usually enhance the
appearance and value of a product). Also during the
subject year and the year prior thereto, Respondent's
aggregate gross receipts from sales (services rendered)
totaled $350,000. In October 1972, employee Ronald
Hugar was employed by Respondent as a display carpenter
until he was discharged and not reemployed by Respon-
dent, allegedly for repeatedly reporting to work late. Prior
i The pleadings place in issue the facts relating to the filing and service
of the charge herein. However , the facts established that the charge was
filed and properly served as set forth herein
208 NLRB No. 15
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Hugar's discharge, Respondent discharged a fellow
employee allegedly for lateness and thereafter, Hugar
alleges, out of the concern of fellow employees over that
employee's discharge, he and other employees initiated an
organizing campaign on behalf of the Union on or about
Apnl 9, 1973, and as a consequence thereof, he was
discharged and refused reinstatement by Respondent
because of such union activity.
The issues in this case are:
1. The jurisdictional status of the employer.
2. Whether the charge in this case was filed by the
Charging Party and was properly served upon the
Respondent.
3. Whether Respondent discharged employee Ronald
Hugar on April 11, 1973, because of his union activities in
violation of Section 8(a)(3) and (1) of the Act.
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
A. The Filing and Service of the Charge
The evidence concerning the issue relating to the filing
and service of the charge in this case consists of a signed
charge, dated April 13, 1973, an affidavit of service of said
charge dated April 16, 1973, and a union card, all of which
are signed by Ronald Hugar and credibly substantiated by
Hugar at the hearing. In evaluating this evidence, it is clear
that the signature on the charge is the same as the signature
on the union card, as acknowledged by Hugar. Hence,
considering the foregoing evidence and the presumption of
regularities which attaches to the filing of the charge and
the records of the Board, I conclude and find that the
charge in this case was filed by Hugar on April 13, 1973,
and was thereafter properly served upon the Respondent
on April 16, 1973.
B. The Business of the Respondent
Respondent. a New York corporation with its principal
place of business being located in the city and State of New
York, herein called the plant, is engaged in the manufac-
ture and design of merchandising display equipment and
related products on order.
It is admitted and stipulated that Respondent is a New
York corporation which has at all times material herein
maintained a business at 155 East 23rd Street, New York,
New York, where it is engaged in the manufacture and
design of merchandising display and promotional equip-
ment. It was further stipulated at the hearing and I
conclude and find that Respondent during the past year
sold and shipped from its New York plant, goods valued in
excess of $50,000 to destinations located outside the State
of New York.
Considering the foregoing, 1 conclude and find that the
Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and subject to
the Jurisdictional standards of the Board which warrants
the Board asserting jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Anthony Prezioso credibly testified that he has been vice
president of Local 2682 of the United Brotherhood of
Carpenters for 5 years; that employees participate in Local
2682 organization; that said organization has a constitu-
tion and bylaws; that said organization exists in whole or
in part for dealing with employers on matters concerning
employees' working conditions such as hours, sick leave,
vacation and such other benefits; and that the constitution
and bylaws provide for the election of officers and general
membership meetings to be held periodically.
The credible testimony of Prezioso and Hugar, and the
exhibits in the record, clearly establish that Prezioso
discussed and counseled with some of Respondent's
employees with respect to their efforts to organize
Respondent's employees into Local 2682 (the Union) and
to secure representation rights for Local 2682.
I note with respect to the foregoing findings of fact, the
following excerpt from Prezioso's credited testimony:
Q. And does this organization exist in whole or in
part dealing with employees' working conditions such
as hours, sick leave, vacation and other benefits such as
those?
A. Yes, sir.
I further note that it is my recollection that the precise
question to Prezioso was to the effect as to whether his
organization existed to deal with employers concerning
employees' working conditions. No motion to correct the
record in this regard has been made. I find it unnecessary
to correct the record in such regard since I find it clear that
an inference is warranted from all the facts, and I draw
such inference, that Local 2682 existed to deal with
employers concerning employees' working conditions. I
also note that the overall facts clearly show that the
Respondent believed that Hugar was engaged in union
activity, as will be subsequently established by the
evidence.
In view of the foregoing facts , I conclude and find that
Local 2682 of the United Brotherhood of Carpenters is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Issue
Supervisory Status
From a composite of the credible testimony of Joseph
(Joe) Weishar , president of Respondent , and Tito Arroyo
and Ronald Hugar , employees of Respondent , the follow-
ing facts are established:
Joseph (Joe) Weishar is president of Respondent and is
in charge of the business . In March 1973 ,2 President
2 Hereafter all dates will be referable to the year 1973 unless otherwise
specified
NEW VISION DISPLAY 129.
Weishar discharged employee Paula Chin for repeated
lateness and/or complaining about poor ventilation; 3 and
he discharged employee Hugar on April 11 for lateness.
The record further shows that Tito Arroyo, foreman and
production manager for Respondent for 5 years, makes
work assignments to employees after consulting with
President Weishar. He orders supplies, checks the time-
cards or attendance of employees, calls them on the
telephone if they are absent and are needed on the job,
warns them about being late for work, and checks the
products before they are shipped. If the products are not
satisfactory, he returns them to the employees for correc-
tion. Sometimes employees advise him they will be late or
request permission from him to be absent. He has warned
employees when they took too much time for lunch, and if
they did not comply, he informed them that he would
report them to President Weishar. He reports conditions of
the plant to the president, and he hired a carpenter (Chris
Devallier) with authorization from the president. Thus, it is
clear from the foregoing, and 1 conclude and find that
president Weishar and Arroyo, are supervisors within the
meaning of Section 2(11) of the Act.
B. Union Activity and Respondent's Knowledge
Thereof
A composite of the undisputed credited testimony of
Ronald Hugar established that he was employed by
Respondent along with four (and at later times as many as
six) other carpenters in October 1972. Other employees of
Respondent worked as either artists, packers and receivers,
or clericals, for a total of 13 plant employees. There was a
general problem of plant employees reporting to work
late.4 In November 1972, Hugar reported to work 1 hour
late and was asked by President Weishar, what was the
problem. Hugar was warned about his lateness at this time.
In an effort to reduce the problem of lateness, Respondent
changed the reporting time from 8 a.m. to 9 a.m., but 2
weeks later changed the time back to 8 a.m., because it was
proven unsuccessful. In mid-March, employee Paula Chin
was discharged by Respondent for repeated lateness,
although employee Michaela Grand testified that Chin was
discharged because she complained to President Weishar
about the ventilation in the plant, which was a concern of
several employees.5
Recently after the discharge of Paula Chin, a notice was
posted in the plant, which in essence provided that any
employee who came in after 8 o'clock without special
permission from President Weishar Or Tito Arroyo would
be immediately dismissed. However, the timesheets show
that several employees were nevertheless frequently late
practically throughout the month of March (3-28). About
the last part of March, Hugar returned to the plant from a
specific job assignment and found Janice Conway, Tito
3 The evidence is not precise in this regard
This fact is fut ther corroborated by the testimony of Michaela Grand,
who had also been reprimanded for lateness, as well as by the testimony of
Christopher Wilson, president Weishar and plant timcsheets
5 i credit the testimony of Respondent that Paula Chin was discharged
for lateness, since the plant timesheets show Chin was frequently late and
absent, and no other employee had actual knowledge as to why she was in
fact discharged
6 Arroyo admitted that he was present with other employees of
Arroyo, and Denicio discussing the dismissal (discharge) of
Paula Chin. As a result of a general feeling of job
insecurity amongst the employees and complaints about
health conditions (difficulty breathing as a result of dust
and fumes from dyes and paints) within the plant, the
employees commenced discussing the need for a union.6
About 2 weeks later, Hugar contacted the Union and
arranged for a meeting scheduled for April 9. He asked
Arroyo to attend the meeting but was advised by the latter
that he had a dental apppointment on that date; and that
he did not trust unions but he would try to attend and
listen.
On Saturday, April 7, Hugar called Arroyo and
requested permission to report for work at 9:30 a.m. (1-1/2
hours late) on Monday, April 9, in order to apply for a
contractor's license at the Department of Consumer
Affairs.? When he reported to work late on April 9, he was
nevertheless warned about lateness by President Weishar.
The meeting with the Union was held on the afternoon of
Monday, April 9 as heretofore scheduled, but Arroyo was
not in attendance.
It is further established by the undisputed and credited
testimony of Union Representative Prezioso that on April
9 he received a telephone call from Hugar who informed
him that a majority of the employees at Respondent's plant
wanted to be organized; that after work on the same day,
Ronald Hugar and fellow employees Candyce Haspel and
Janice Conway came to his office for a meeting during
which he explained the advantages of the Union and
suggested that they constitute the organizing committee.
Since it was established that it would be difficult to identify
and contact the other employees as they came out of the
building after work, Hugar agreed to take the application
cards into the plant and have the employees sign them.
Hugar was designated chairman of the organizing commit-
tee and he visited the union office for further discussion on
April 10, when he submitted six union cards signed by
employees Michaela Grand, Janice Conway, Ronald
Hugar, Mary Didoardo, Christopher Wilson, and Candyce
Haspel. Employee Grand's card was signed on April 9 and
the other cards were dated April 10.
The undisputed and credited testimony of Hugar further
established that Hugar was late in reporting to work on
Tuesday, April 10; and that he was summoned to the office
of President Weishar and reprimanded for being late on
April 8 and 10. He was further warned by Weishar that if
he were late again, he would be discharged. Also
reprimanded for lateness on the same days (April 9 and 10)
was carpenter Christopher Wilson.8
During the lunch hour on April 10, Hugar, Haspel, and
Conway held a meeting with plant employees, including
Arroyo, in open plant view around Arroyo's table in the art
shop, when Hugar explained what transpired at the
Respondent when unionization of the plant was discussed in late March.
after the discharge of Paula Chin Therefore , Hugar s undisputed testimony
in this regard is corroborated by the undisputed and credited testimony of
employee Michaela Grand
7 Iiugar's statement about his request to be late on April 9 is credited
because it was not denied by Arroyo and Hugar did not impress me as being
untruthful in this regard
F Hugar s testimony was corroborated by the testimony of President
Weishar in this regard
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting with the Union on April 9, and Haspel and
Conway answered questions. Hugar distributed the union
cards and asked the employees to sign them to assure a
majority support for the Union. Later that afternoon, he
(Hugar) met Arroyo in the men's room where the latter
advised him that the Spanish-speaking people did not want
a union and that he (Arroyo) had talked to Joe Weishar
about it and he (Arroyo) had decided that the Spanish-
speaking people did not want a union.9
Arroyo credibly admitted that he attended the employee
meeting during the lunch hour on April 10 and that he had
a conversation with Hugar later that afternoon, when he
told Hugar that he did not like unions and that he had
discussed the Union with Joe Weishar that same day after
the meeting and was asked by Weishar, who was in charge
of the union activities, and he told him Hugar and Conway
were the employees who wanted the Union. Arroyo further
advised Hugar that he had told Weishar that people
(employees) were interested in a union and Weishar said if
they wanted a union they should make sure they get a good
one.10 Weishar did not say anything else about the Union
but he said all employees were also going to be moved.
Upon a composite of the foregoing undisputed and
credited testimony, I conclude and find that Ronald
Hugar, Janice Conway, Candyce Haspel, and other
employees of Respondent were engaged in concerted or
union activity from late March, following the discharge of
Paula Chin, and especially on April 9, 10, and 11, when
Hugar was ultimately discharged; that Respondent had
actual, representative, and imputed knowledge of said
union activity through President Joseph Weishar, Supervi-
sor Tito Arroyo, and the small plant doctrine (13
employees), respectively; that President Weishar's sudden
and severe ultimatum about lateness to Hugar on April 10
following the union meeting on April 9, and Arroyo's prior
knowledge of that scheduled meeting and his negative
statements about unionization on April 9 and 10, as well as
President Weishar's and Arroyo's knowledge of the lunch
hour meeting on April 10 followed by Hugar's discharge
on April 11, all constitute animus by Respondent towards
unionization of its plant and Hugar's leadership role
therein.
C. Discriminatory Discharge of Employee
Hugar further testified that on Wednesday, April 11, he
was experiencing difficulty breathing and he called the
plant at 7:45 a.m.I I but received no response, so he decided
to wait until 9 o'clock to call again and report that he was
ill. About 8:45 a.m., he was awakened by a telephone call
from Joe Weishar, and he testified that the following
conversation ensued:
He asked where I was. I told him I was ill on that
particular day. He then stated he had warned me the
day before for lateness. I tried to explain to him that
particular time that this was a different circumstance. I
was ill, unable to work, not late. At which case he said
that he decided that he was going to have to let me go
and I said if that is the way you want it, he said that the
way it has to be and I told him he would be hearing
from me and he said I'm sure I will, and hung up on
me.
Subsequently, Hugar called his physician, Dr. Genusi,
who advised him to come to his office at 11:30 a.m.12 After
seeing his doctor, Hugar called Respondent and requested
him to mail his check to him.
President Weishar's testimonial account of the telephone
conversation which ensued between himself and Hugar at
about 8:45 a.m. on April 11 differs from Hugar's as
follows:
Q.
A.
Q.
him?
Did you speak to Hugar?
Yes, I did.
What did he say to you and what did you say to
A. I asked him why he hadn't come in. He said that
he was sick. I then asked him if he had considered
calling the shop. There was no response. And I said, in
that case, I would suggest that we terminate our
relationship, and Mr. Hugar said you will be hearing
from me. And I said I am certain of that.13
Hugar has never been called at home by plant manage-
ment even though he had been absent previously for an
entire day due to illness. A week or two later Hugar went
to the office of Weishar and talked with him as follows:
I requested at that time if he would be willing to talk
about reinstatement on the job. He said no because he
had received the charge from the National Labor
Relations Board, that he felt that he couldn't possibly
begin to discuss reinstatement. 14
9 Arroyo corroborates Hugar's testimony by his admission that he was
present at the lunch hour meeting on April 10 and he appeared to be
truthful in his testimony
10 While I do not discredit Arroyo's testimony with respect to President
Weishar's response that if the employees "wanted a union they should make
sure they get a good one," I do not give any weight to it because the logical
inconsistency of the evidence indicates that Weisharwas either not sincere in
this regard , or that his attitude towards plant unionization had changed to
one of animus subsequent to his discussion with Arroyo on April 10, as
indicated by his discharge of Hugar on April 11.
Ii I make no determination of the credibility of Hugar's testimony that
he called the plant at 7 45 a.m . to report that he was ill because the events
that followed make a resolution of this issue of fact unnecessary.
12 A note from Dr. Genusi indicating Hugar was seen by him on April 11
was presented at the hearing.
13 I credit the undisputed testimony of both Hugar and President
Weishar that during their telephone conversation (at 8.45 a.m .) on April 11.
Hugar advised Respondent that he was ill . However. I discredit President
Weishar's testimony to the effect that Hugar did not respond when he asked
Hugar why had he not called to advise that he was ill, because this
contention does not coincide with the logical consistency of the evidence
which preceded or followed that conversation . More specifically, it appears
that since Hugar said he was ill, Respondent could not charge him with
lateness so he prematurely concluded and charged him with failing to call
the plant, hastily discharged him, and thereby precluded a possible or
probable finding that Hugar was going to call the plant subsequent to 8 45
a.m.
i i I credit Hugar's testimonial account of his visit to President Weishai's
office about 2 weeks after his discharge to discuss possible reinstatement,
because President Weishar admitted that Hugar visited him at this time, and
he did not emphatically deny that he said there was no possibility for
reinstatement since Hugar had filed a charge with the National Labor
Relations Board against Respondent . Moreover , I received the impression,
from the testimony of Hugar and Respondent, that Hugar was telling the
NEW VISION DISPLAY
Several things were said past that point.
We discussed about my organizing the union, my union
activities where he made the statement that he
considered me irresponsible for taking on the activity
of organizing the union because-
Q. Can I ask you-
A. He stated that I felt that he was irresponsible.
and he said "he felt that I was out to get him or it was on a
personal vendetta." He said Weishar also asked why all the
secrecy and Hugar tried to explain that the employees were
not acting secretly and that they had met openly in the
plant.
President Weishar testified that he feld compelled to
come to the plant early on the morning of April 10 to
severely warn Hugar and Wilson about their latenesses
because he did not want to fire them, since he knew how
his employees were dissatisfied about his discharge of
Paula Chin.15
In view of the foregoing credited evidence, I conclude
and fmd that although Respondent's (President Weishar's)
discharge of Hugar on April 11 was probably based, in
part, upon Hugar's probable lateness without permission
or his possible failure to call the plant to advise that he
would not be in, his discharge was substantially motivated
by Respondent' s animus for Hugar's union activity and
was therefore discriminatory, in violation of Section 8(a)(3)
and (1) of the Act; and that Respondent's failure and
refusal to offer to rehire, or to rehire, Hugar because he
filed an unfair labor practice charge against Respondent
was likewise discriminatory in violation of Section 8(a)(4)
of the Act.
I do not credit the decision (G. C. Exh. 3, admitted in
evidence) of the New York Unemployment Insurance
Referee dated June 11, 1973, because it does not appear to
be relevant or necessary for a decision in this matter.
D. Analysis and Conclusion
I find that Local 2682, United Brotherhood of Carpen-
ters, is a labor organization within the meaning of Section
2(5) of the Act. This conclusion is amply supported by the
credible testimonial account of Anthony Prezioso, vice
president of Local 2682 (the Union) and his efforts to assist
Respondent's employees in organizing a union. His
testimony and all other testimony relating to the existence
and activity of Local 2682 are undisputed in the record.
I also find upon the undisputed and credible testimony
of Hugar and Arroyo that concerted activity of Respon-
dent's employees commenced in late March, and upon the
testimony of Prezioso, Hugar, Wilson, and Respondent's
supervisor, Arroyo, that an organizing campaign on behalf
of the Union was commenced on April 9, 1973, and that
Ronald Hugar spearheaded the Union's organizational
drive. With respect to the crucial questions as whether
truth in this regard.
15 I credit President Weishar's testimony regarding his reason for coming
to the plant early on April 10 as an incidental part of the total reason, in
view of the substantial evidence of his and Arroyo's supervisory role, their
knowledge of Hugar's union activity, and animus on their part towards that
activity.
131
Respondent had knowledge of the organizing campaign
and Hugar's leadership role therein, the evidence is
abundantly clear from the testimony of Hugar and
Respondent's own supervisor, Arroyo, who verified his
supervisory role and communicated his dislike and distrust
of unions to Hugar on April 9 and 10. Arroyo was invited
to the first organizing meeting on April 9. He attended the
lunch-hour organizing meeting on April 10 and admitted
he discussed the organizational efforts and Hugar's
leadership role therein with Respondent (Weishar) on
April 10. I credit the testimony of both Hugar and Arroyo
on this issue of company knowledge and particularly note
that Respondent Weishar, at no time throughout the
record of evidence herein, ever denied that he had
knowledge of the organizing efforts of the employees on
and prior to April 11. Since supervisor Arroyo knew about
Hugar's union activity, his knowledge is imputed to
Respondent, who nevertheless received actual knowledge
of said activity during his conversation with Arroyo on
April 10.16
Moreover, knowledge of Hugar and other employees'
concerted or union activity may also be inferred to
Respondent from the following chain of circumstantial
evidence: (1) the small number of employees at the plant
(approximately 13); (2) the fact that Hugar had spoken in
favor of the Union to other employees at a lunch-hour
meeting the day before he was discharged; (3) Supervisor
Arroyo's knowledge that Hugar was spearheading unioni-
zation efforts and expressed his disagreement with the
same ; and (4) Respondent's severe warning to Hugar about
lateness on the day after the Union meetings on April 9
and 10.17 Since this severe warning to Hugar (who had
been late about 80 percent of his working tenure with
Respondent) occurred immediately following the two
aforementioned organizing meetings and on the day before
his discharge, it would appear, and I therefore find, that
both the warning and discharge were motivated by animus
on the part of Respondent. This conclusion is further
supported by the following additional facts: (1) Respon-
dent had demonstrated a rather tolerant attitude towards
latenesses of Hugar and other employees until April 10;
and (2) Respondent's statement to Hugar is to the effect
that he could not consider reinstating Hugar since the
latter filed a charge against Respondent with the National
Labor Relations Board. Not only does this statement
constitute evidence of union animus but it would also
constitute a violation of Section 8(a)(4) of the Act, if it
were in fact litigated. However, since I do not deem this
statement to have been litigated, I will not make a finding
of a violation of Section 8(a)(4) of the Act.
Moreover, so precipitous was Respondent' s animus
towards Hugar on April 11 that, anticipating Hugar was
going to be late, he called Hugar at home at 8:45 a.m. and
discharged him, allegedly for lateness on failure to call in,
when in fact Hugar did not report for work but allegedly
16 Koller Craft Plastic Products, Inc, 1 14 NLRB 990.
17 Wiese Plow Welding Co, Inc, 123 NLRB 616, 618.
18 1 credit the undisputed testimony of Hugar with respect to Respon-
dent's statement to Hugar weeks after his discharge , in declining to consider
his reinstatement because he had filed a charge against Respondent with the
National Labor Relations Board.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was going to call the plant at 9 a.m. to advise that he was
going to remain home because he was ill.19 Under these
circumstances it appears to he immaterial whether Hugar
called the office of Respondent on April I I or whether he
was in fact ill. Respondent's hasty discharge of Hugar
precludes an actual determination as to whether Hugar was
going to be late or was going to call the plant at a later
hour; or whether he was going to be absent from work
without calling the office on April 11. Such hasty action by
Respondent in an anticipation that Hugar was going to be
late or absent without reasonable cause appears to indicate
how eager Respondent was to obtain evidence of that
ultimate condition (lateness, or even assuming failure to
call) which he had warned Hugar would constitute grounds
for his dismissal. While the evidence is clear that
Respondent, for a considerable period of time, had had a
valid ground ("lateness") to discharge Hugar, it is equally
clear that Respondent was tolerant towards Hugar's
lateness until April 9 or 10, when he learned about Hugar's
union or concerted activity and discharged him on April
11. The evidence does not unequivocally show that Hugar
was going to be late or absent on April 11. However,
assuming that he was going to be late, the record shows
that other employees of Respondent were frequently late
and that there does not appear to be much evidence of
Respondent's diligence to enforce timely reporting to work
until his severe warning to Hugar and Wilson on April 9
and 10. This observation is further amplified when it is
noted that Wilson was late on a few occasions subsequent
to Hugar's discharge but was not discharged until late
May.
Based upon the foregoing analysis and evaluation of the
evidence, 1 am satisfied that it is amply sufficient to
support the conclusion and finding that Respondent
discriminatorily discharged Hugar for his union activity, in
violation of Section 8(a)(1) and (3) of the Act; and that
Respondent's contention that Hugar was discharged for
lateness is merely pretextual in an effort to justify his
discharge. Moreover, since Respondent's discharge of
Hugar was in part, substantially, even if not entirely.
motivated by Hugar's concerted or union activity, such
discharge was nevertheless coercive and discriminatory,
although for several months Respondent appears to have
had valid grounds to discharge him. Thus, it becomes
obvious that neither lateness nor failure to call in was the
real, even if not the only, basis for Hugar's discharge, but
rather, his concerted or union activity.20
IV. THE EFFECT OF TILE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with its operations in
section I, above, have a close, intimate, and substantial
relationship to trade, traffic and commerce among the
10 f do not deem it necessary to credit or discredit Hugar's testimony that
he had called Respondent at about 7 45 a in on April II to report that he
was ill , since subsequent circumstances make such a determination
immaterial
20 J P. Stevens & Co v. N L R B, 380 F 2d 292, 300 (C A. 2, 1967),
N L R.B v. Ulbrich Stainless Steel, Inc , 393 F 2d 871, 872 (C A. 2, 1968)
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in an unfair
labor practice warranting a remedial order, I shall
recommend that it cease and desist therefrom and that it
take certain affirmative action to effectuate the policies of
the Act.
It having been found that Respondent discharged
Ronald Hugar in violation of Section 8(a)(1) and (3) of the
Act, the recommended Order will provide that Respondent
offer reinstatement to his job, and make him whole for loss
of earnings within the meaning and in accord with the
Board's decisions in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB 716,
except as specifically modified by the wording of such
recommended Order.
Because of the character of the unfair labor practice
herein found, the recommended Order will provide that.
Respondent cease and desist from in any manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
N.L.R. B. v. Entwistle Mfg., Co., 120 F.2d 532, 536 (C.A. 4).
Upon the basis of the above findings of fact and upon
the entire record in this case , make the following:
CONCLUSIONS OF LAW
1. New Vision Display, Inc., the Respondent, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 2682, United Brotherhood of Carpenters, is
and has been at all times material herein a labor
organization within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the tenure of
employment of Ronald Hugar, thereby discouraging
membership in the Union, a labor organization, Respon-
dent has engaged in unfair labor practices condemned by
Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 21
Respondent, New Vision Display, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, or otherwise discriminating against
employees in regard to hire or tenure of employment, or
any term or condition of employment because of their
protected concerted activities.
(b) In any other manner interfering with, restraining, or
21 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions , and Order, and all objections thereto shall
be deemed waived for all purposes.
NEW VISION DISPLAY
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act except to the extent that such
rights may be affected by lawful agreements in accord with
Section 8(a)(3) of the Act,
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Ronald Hugar immediate and full reinstate-
ment to his former position or, if such position no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights previously
enjoyed, and make him whole for any loss of pay suffered
by reason of the discrimination against him with interest at
the rate of 6 percent, in the manner described in the section
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, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of the recommended Order.
(c) Post at Respondent's plant at New York, New York,
copies of the attached notice marked "Appendix." 22
Copies of said notice, on forms provided by the Regional
Director for Region 2, after being duly signed by
Respondent's representatives, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by Respon-
dent for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced or covered by any other material.
(d) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of receipt of this Order, what
steps the Respondent has taken to comply herewith.
22 In the event the Board 's Order is enforced by a Judgment of the
Lnited States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
133
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in the United
Brotherhood of Carpenters, Local Union No. 2682, or
any other labor organization , by discharging employees
or otherwise discriminating in any manner in respect to
their tenure of employment or any term or condition of
employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise and
enjoyment of rights guaranteed to them by Section 7 of
the National Labor Relations Act.
WE WILL offer Ronald Hugar immediate and full
reinstatement to his former position, or if such position
no longer exists, to a substantially equivalent one,
without prejudice to the seniority and other rights and
privileges enjoyed by each, and make each whole for
any loss of pay he may have suffered by reason of his
discharge, with interest at the rate of 6 percent per
annum.
All our employees are free to become, remain or refuse
to become or remain , members of said Local Union No.
2682, or any other labor organization.
NEW VISION DISPLAY, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 36th Floor, Federal
Building, 26 Federal Plaza, New York, New York 10007,
Telephone 212-264-0330.