Novel Knit, Inc.

National Labor Relations Board - Board Decisions

Jul 13, 1990

299 N.L.R.B. 58 (N.L.R.B. 1990)

58

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