Successful Creations, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1975

218 N.L.R.B. 561 (N.L.R.B. 1975)

SUCCESSFUL CREATIONS, INC. 561
Successful Creations , Inc. and Local 145, internation-
al Ladies' Garment Workers' Union , AFL-CIO.
Case 22-CA-6010
June 17, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On March 26, 1975, Administrative Law Judge
Charles W. Schneider issued the attached Decision in
this proceeding. Thereafter, counsel for the General
Counsel filed exceptions and a supporting brief.
Respondent filed a brief in opposition to the General
Counsel's exceptions.
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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 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 the complaint be, and it hereby is,
dismissed in its entirety.
1 Counsel for the General Counsel has excepted to certain credibility
findings made by the Administrative Law Judge . It is the Board 7s
established policy not to overrule an Ad ninistratrlve Law Judge 's resolu-
tions with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect . Standard
Dry Wall Products, Inc., 91 NLRB 544 (1950), enfcl. 188 F.2d 362 (CA. 3,
1951). We have carefully examined the record and find no basis for
reversing his findings.
DECISION
STATEMENT OF THE CASE
CHARLES W. SCHNEIDER, Administrative Law Judge: On
August 2, 1974, International Ladies' Garment Workers'
Union, AFL-CIO, the Union, filed an unfair labor practice
charge against Successful Creations, Inc., Northvale, New
Jersey, the Respondent, alleging, inter a/ia, the discharge of
Louis ParejaI in violation of the National Labor Relations
Act, 29 U.S.C. 158.
On January 14, 1975, the Acting Regional Director of
Region 22 issued a complaint alleging that the Respondent
discharged Pareja on or about July 31, 1974, because of his
membership in and activities on behalf of the Union in
1 Incorrectly spelled Paresa in the transcript.
218 NLRB No. 90
violation of Section 8(a)(1) and (3) of the Act. Copies of the
complaint and accompanying notice of hearing were
served on the Respondent and the Union. Thereafter the
Respondent filed an answer to the complaint, dated
January 17, 1975, denying the commission of unfair labor
practices.
Pursuant to notice a hearing was held before me at
Newark, New Jersey, on February 12, 1975. The General
Counsel, the Respondent, and the Union, appeared, were
represented by counsel, and participated in the hearing. All
parties were afforded full opportunity to be heard, to
examine witnesses, to introduce and to meet material
evidence, and to file briefs. Oral argument was waived.
On March 17, 1975, the General Counsel and the
Respondent filed briefs.
Upon consideration of the evidence of record, and of the
briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material herein,
a corporation duly organized under, and existing by virtue
of, the laws of the State of New Jersey.
At all times material herein Respondent has maintained
its principal office and plant at 273 Livingston Street,
Northvale, New Jersey, herein called the Northvale plant,
and is now, and at all times material herein has been
continuously, engaged at said plant in the manufacture,
sale, and distribution of knitted fabrics, and related
products. Respondent's Northvale plant is its only facility
involved in this proceeding.
In the course and conduct of Respondent's business
operations during the preceding 12 months, said operations
being representative of its operations at all times material
herein, Respondent caused to be purchased, transferred
and delivered to its Northvale plant, wool fabrics and other
goods and materials valued in excess , of $50,000, of which
goods and materials valued in excess of $50,000 were
transported to said plant in interstate commerce directly
from States of the United States other than the State of
New Jersey.
In the course and conduct of Respondent's business
operations during the preceding 12 months, said operations
being representative of its operations at all times material
herein, Respondent caused to be manufactured, sold, and
distributed at said plant, products valued in excess of
$50,000 of which products valued in excess of $50,000 were
shipped from said plant in interstate commerce directly to
States of the United States other than the State of New
Jersey.
Respondent is, 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.
IL THE LABOR ORGANIZATION INVOLVED
Local 145, International Ladies' Garment Workers'
Union, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
Background
The principal persons involved in the events herein are
Louis Pareja, the alleged discriminatee, Homero Velez, his
foreman, and Frank Bertelli, the Respondent's plant
manager. They also constitute all the witnesses in the case.
In 1971 the Textile Workers Union of America, AFL-
CIO, attempted to organize the Respondent's plant.
During that period the Respondent engaged in unfair labor
practices, including the discharge of four employees, and
threats and interrogation of employees, concerning their
union activity. Plant Manager Bertelli was substantially
involved in the commission of some of those unfair labor
practices. See Successful Creations, Inc., 202 NLRB 242
(1973).
A. Pareja's Signing of the Union Card and His
Employment by the Respondent
On July 9, 1974, at his home, and at the request of a
representative of the Union, Pareja signed a card designat-
ing the Union as his collective-bargaining agent ' and
representative under the Act. On July 15, 1974, Pareja
applied for employment with the Respondent, was hired,
and reported for work on July 16, 1974.2
B. The Termination of Pareja
Pareja was terminated 16 days later, on July 31, 1974,
according to the General Counsel because of his union and
concerted activities, and according to the Respondent
because of a nondiscriminatory reduction in force.
Thereafter, about September 25, 1974, 'Pareja was
reinstated by the Respondent. About October 25, 1974, he
was laid off in a reduction of force. There is no contention
that the October 25 layoff was discriminatory.
The specific facts are as follows:
For some period of time during July 1974 union
representatives distributed union literature outside the
Respondent's plant.
On July 31, 1974, Pareja and at least one other employee
wore union buttons at work. These buttons, circular in
form, and three inches in diameter, bore the following
legend in white against a green background:
The
UNION
for me
I.L.G.W.U.
2 Pareja's testimony is that he applied for work with the Respondent on
July 8, 1974, filled out an employment application, was hired, and went to
work on the following day, July 9. The union designation card, which is in
Homero Velez, Pareja's supervisor, saw Pareja and the
other employee wearing the buttons. At some time during
the day Plant Manager Frank Bertelli came into the
warehouse where Pareja worked. While there, according to
Pareja, the two passed "face to face." Bertelli said "hello"
to Pareja and passed on without any reference to Pareja's
button, or indication that he had seen it.
Near the end of that workday Foreman Velez came to
Pareja, handed him his pay, and told Pareja that the
Company no longer required his services. Velez gave no
other explanation and Pareja asked for none. Pareja merely
said he would see what the Union would do for him.
Pareja later joined a picket line, presumably the Union's,
outside the plant in connection with a strike. On or about
-September 25, 1974, Pareja was advised by a, union
representative that he could return to work and that the
Respondent would pay him for his lost time. Pareja then
returned to work but to a different department, doing
weaving or webbing work. In his previous employment in
the warehouse he had packed boxes, marked and weighed
them, and loaded and unloaded trucks. Pareja described
the new job as "better" work than his previous employ-
ment.3
After Pareja return ed to work, he had several discussions
with Plant Manager Bertelli concerning backpay for the
period he was out. About October 15, 1974, one of the
Respondent's secretaries brought Pareja a check in the
amount of $756, apparently representing reimbursement of
Pareja for his lost time following his discharge. An
accompanying list, according to Pareja, disclosed that the
calculation had been made on the basis of a 40-hour week.
Pareja declined to accept the check, stating that he was
entitled to pay at the rate of 50 hours per week, on the basis
of his preceding employment experience. According to
Pareja, the secretary then returned to the office. There is no
evidence of any subsequent developments concerning the
matter.
About October 25, 1974, Pareja was laid off in a general
reduction of force. As has been seen, there is no contention
that the October termination was discriminatory.
Contentions
The General Counsel contends that Pareja was dis-
charged because he was observed wearing the union button
on July 31. Although there is no evidence of a direct
connection between that act of Pareja's and his subsequent
employment on July 15 and reported for work on July 16. It is concluded
that Pareja's recollection was in error as to the date of his employment.
3 The strike and the picket line are adverted to only because of their
connection with Pareja's reinstatement. The record does not disclose the
details of the stake or its cause. At the hearing all parties agreed that the
stake was not relevant to the instant case. The subject was therefore not
explored.
evidence, bears the date July 9, 1974. The employment application, which is
also in evidence, and the significant parts of which, including the date, was
filled out by Pareja in his own hand, is dated July 15, 1974. The application
bears the notation that Pareja would report on July 16, 1974. The
Respondent's testimony, credited in this respect, is that Pareja applied for
SUCCESSFUL CREATIONS, INC. 563
separation, the General Counsel contends that because of
the timing, the background of unfair labor practices, an
asserted absence of dissatisfaction with Pareja's services,
and alleged conflicting reasons urged by the Respondent
for the termination, an inference is required that it was
discriminatory.
The Respondent contends that Pareja was terminated in
a non-discriminatory reduction in force, and that his work
record was unsatisfactory.
The Respondent additionally contends that Foreman
Homero Velez is not a supervisor. Though the issue is
probably not critical in the resolution of the case, I have
concluded, on the basis of the facts adduced in the hearing,
that Velez is a supervisor within the meaning of Section
2(11) of the Act.4
C. The Testimony of Velez and Bertelli
Foreman Velez' testimony, supported by that of Plant
Manager Bertelli, is that Velez reported to Bertelli that
Pareja was an unsatisfactory worker, and further, that both
Velez and Bertelli spoke to Pareja about his work. The
Respondent's testimony in this respect is stated more fully
below.
Pareja's testimony, in answer to questions on cross-
examination, is that neither Velez nor Bertelli, or any other
boss, ever spoke to him about his work or his attitude.5
According to Foreman Velez, several days after Pareja
began work in the warehouse under Velez, Plant Manager
Bertelli asked Velez how Pareja was working. Velez replied,
in sum, that it was too early as yet to say. After about a
week, Velez had another conversation with Bertelli, this
time on Velez' initiative. On this occasion Velez went to
Bertelli and reported to him that Pareja was not working
well with him. In response to Bertelli's inquiry as to the
reason for the dissatisfaction, Velez stated that Pareja did
not seem to be interested in his work, that he took
extended breaks and lunch periods, and complained that
the boxes in the warehouse were too heavy to handle. In
addition Velez told Bertellli that when he needed Pareja to
help him on jobs he sometimes could not find him.
Velez' testimony as' to his experience with Pareja
corresponded with his report to Bertelli. Thus Velez
testified that during the, first week of Pareja's employment
he spoke to Pareja about "taking, too much rest" or
excessive lunch periods. He also told Pareja that he would
have to work harder, to do things faster. Velez testified that
sometimes when he gave Pareja work to do he would
return and fmd that the work was not done, and not be
able to find I areja. According to Velez he told Pareja that
he expected him to do what he was told, Velez further
4 Although Velez works himself, he is in charge of the warehouse,
directing a number of employees. Employees report to him on hiring and
are instructed by him as to their duties and assigned work. He oversees and
cautions employees with respect to tardiness, mistakes, their attendance,
and conformance to working' hours. He is consulted by Plant Manager
Bertelh about prospective employees. Plant Manager Bertelh inquires of
Velez as to his evaluation of new employees after a period of employment.
Velez recommends hiring and discharge. As will be seen, Velez complained
to Bertelli of Pfreja's performance, and Pareja was ultimately terminated.
On the basis of the facts in this record I conclude that Velez has authority
responsibly to direct employees, and effectively to recommend their hire,
layoff or discharge.
5 Pareja testified as follows:
testified that when he could not fmd Pareja to do a job,
Velez was forced to do it himself, adding: "It doesn't seem
right to me if they give me a helper, that I do the work all
by myself."
Velez reported these dissatisfactions to Bertelli. On one
occasion, about a week or more before July 31, Velez told
Pareja that if Pareja did not like working with Velez, Pareja
should speak to Bertelli about it, and seek a transfer. Velez'
testimony in that respect is not denied.
According to Velez, the matter came to a head on
Saturday, July 27. On that day Velez found Pareja
lackadaisical in attitude, slow in performing his work,
again taking excessive time on breaks, and disappearing
when Velez needed him. Velez then determined to speak to
Plant Manager Bertelli on Monday about Pareja.
On Monday, July 29, Velez went to Bertelli. Velez told
Bertelli that Pareja was not doing his work, that Pareja was
not fit for the type of work in the warehouse, and suggested
to Bertelli that Pareja be transferred to another job. Bertelli
told Velez, in Velez' words, that he would take care of it.
Bertelli's testimony is that he told Velez not to worry, that
the problem had been taken care of, without explaining
why. Velez' further testimony is that he came away from
the meeting with the impression that Velez would be
transferred. According to Velez he was surprised to learn
on Wednesday that Pareja was to be terminated. Velez was
first informed of the separation about 15 minutes before
quitting time on July 31, when Bertelli called Velez to the
office, gave him Pareja's pay, and told Velez to tell Pareja
that his services were no longer required.
Plant Manager Bertelli testified that about a week before
the discharge of Pareja, Bertelli told Pareja twice that his
foreman was complaining about his performance, and that,
if it did not improve, Bertelli would have no choice but to
lay him off.
As has been seen, Pareja testified that neither Velez nor
Bertelli spoke to him about his work or his attitude.
Bertelli's testimony as to the termination of Pareja is
that, because of a decline in orders, he had tentatively
decided in the week prior to Pareja's layoff to lay off a
number of employees, and that on the morning of July 29
he definitely decided upon the layoff, and that Pareja was
included because of his recent seniority. These layoffs were
effected on Wednesday without prior notice to the foremen
or to the employees. Among those laid off was at least one
other employee in the shipping department, of which the
warehouse is a part.
On July 29, the date Velez last spoke to Bertelli about
Pareja, and the day on which Bertelli testified he definitely
decided on the layoff, another employee working in the
Q. Did anybody who you considered to be a boss, ever talk to you
about your work or your attitude at work?
A No.
Q ^ Are you sure?
Q. Not Homero?
A. No.
Q. Not Frank?
A No.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
warehouse - one Casallas - was discharged when he was
found sleeping. Sometime after the July 31 layoff an
employee working in the warehouse was transferred to
another department. Velez then told Bertelli that he needed
help, whereupon two employees were apparently trans-
ferred to the warehouse from elsewhere in the plant. Velez
described these men as replacements. Velez found them
unsatisfactory. He complained to Bertelli about them, and
after some time they were laid off. It is not disclosed how
many, if any, are now working in the warehouse.
Bertelli's further testimony is that layoffs are never
announced in advance, and that foremen are not advised
of them until told to effect them. Though some stress is laid
by the General Counsel on the fact that the termination of
Pareja occurred on the day before pay day, Bertelli's
uncontradicted testimony is that the last prior major layoff
occurred on a Tuesday, two days before pay day, and that
he decided on July 31 in this instance because it was the
last day of the month.
Conclusions
There is no evidence that Pareja engaged in any union
activity other than the wearing of the union button. As we
have seen, one other employee, to the knowledge of
Foreman Velez, also wore a union button on July 31. The
testimony is uncontradicted that he was not discharged.
Pareja was a recent employee, of some 16 days seniority,
and, according to the Respondent was still in probationary
status . When reinstated after his termination he was given
a better job in a different department from that in which
Foreman Velez found him unsuited. At the time he was
terminated on July 31, assertedly for declining production,
the uncontradicted evidence is that a number of other
employees, including one in the same department, were
also terminated for the same reason. Two days before his
discharge a fellow worker' in the warehouse was discharged
for disciplinary reasons . A third employee in the ware-
house was subsequently transferred elsewhere. Two em-
ployees, whom Velez found unsatisfactory, and who were
ultimately laid off, were then transferred to the warehouse
when Velez told Bertel i that he needed help. Though Velez
described these two as replacements, I do not find either of
them to be a replacement for Pareja.
In the light of that background I fmd that the evidence
does not warrant the conclusion that Pareja was discharged
because he wore the union button in the plant.
Velez impressed me as a credible witness. Based on his
testimony, adequate ground existed for Pareja's termina-
tion, and was reported to Bertelli. I reject Pareja's
testimony to the effect that no supervisor spoke to him
about his work or his attitude. Because of Plant Manager
Bertelli 's participation in the unfair labor practices in 1971,
his testimony may be subject to substantial discount.
However, his evidence to the effect that Pareja's July 31
separation was part of a group layoff is plausible in view of
Pareja's lack of seniority, and is not contradicted by other
evidence.
Admittedly no supervisor or other representative of the
Respondent made any comment to Pareja regarding his
wearing of the union button. There is no evidence of any
conduct by the Respondent indicative of resistance to the
Union's organizing effort. There is no evidence of any
overt act on the part of any of the Respondent's
representatives reflecting their awareness or resentment of
Pareja's union activity, affiliation, or sympathy.
The General Counsel adverts to several factors warrant-
ing the inference of discrimination against the background
of unfair labor practices. However, I deem those reason-
ably explained. Thus, the General Counsel points to the
timing of the discharge, purported testimony by Foreman
Velez to the effect that Pareja's performance was no
different from that of others in the department, that Velez
was surprised at the separation, and that a few days after
Pareja was terminated, replacements were hired in the
warehouse.
It is true that at one point in his testimony, when asked
whether Pareja's performance was not much different than
that of others in the department, Velez appeared to
respond in the negative. If taken literally, those answers
can be interpreted as contrary to the whole tenor of Velez'
testimony to the effect that he found Pareja to be an
unsatisfactory employee and that he so reported to Bertelli.
However, I do not so interpret his answers. Velez, like
Pareja, testified through an interpreter. I have concluded,
after careful evaluation of all of Velez' testimony, that the
answers are not to be interpreted as the General Counsel
interprets them, and that the ambiguity which I find in
them represents either a misunderstanding of the question,
or of the answer, or translation problems, or all of them. I
think it significant that after that questioning, Velez
repeated his assertion that Pareja performed unsatisfactori-
ly, and that while he may also have been dissatisfied at
times with the performance of others, none were as
uniformly unsatisfactory as Pareja.
With respect to the matter of replacements, that has been
discussed above, and I have found that the facts do not
warrant a conclusion that a replacement was hired for
Velez. In the light of all the other circumstances, the timing
seems plausibly explainable as coincidence.
With respect to Foreman Velez' testimony that he was
surprised when told to terminate Pareja, Velez explained
that when Bertelli told him, in response to Velez'
suggestion that Pareja be transferred, that the matter was
being taken care of, he inferred that Bertelli meant that
Pareja would be transferred.
I have not overlooked the background of unfair labor
practices. That has caused me to scrutinize Plant Manager
Bertelli's testimony with special care, and has impelled me
to credit it only where consistent with that of Velez, or
uncontradicted testimonially or by other evidence. On the
other hand, the background does not warrant a ready
imputation of a continuation of unfair labor practices. The
year 1971 is somewhat removed from 1974. In any event,
whatever suspicion there may be as to the Respondent's
motive, it is not adequate , as I appraise the factual pattern,
to warrant the conclusion that Pareja was discharged on
July 31, 1975 because of his union activities.
It will therefore be recommended that the complaint be
dismissed.
SUCCESSFUL CREATIONS, INC. 565
CONCLUSION OF LAw [Recommended Order dismissing complaint omitted
from publication.]
The Respondent has not engaged in unfair labor
practices by the conduct alleged in the complaint and
disclosed by the record.