Juniper Industries

National Labor Relations Board - Board Decisions

May 21, 1993

311 N.L.R.B. 109 (N.L.R.B. 1993)

109
311 NLRB No. 6
JUNIPER INDUSTRIES
1 In adopting the judge’s findings that the discharges involved here
violated Sec. 8(a)(3) and (1) of the Act, we note that, although he
did not explicitly analyze the discharges under Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), his findings are consistent with that decision.
The Respondent argues that, assuming there was a prima facie case,
the judge should have held that the Respondent prove that it would
have taken the same action in the absence of protected activity. The
judge, however, considered and rejected as invalid each of the Re-
spondent’s defenses to the allegations that its actions were unlawful,
and the prima facie case is clear. Also see Limestone Apparel Corp.,
255 NLRB 722 (1981).
We correct the following errors of the judge, which do not affect
our decision. The judge credited employee Elvire Bottex’s version
of the events surrounding her discharge involving her supervisor,
Raymond, noting that Raymond did not testify. It was stipulated in
the record that the foreman known as Raymond was Ramnarine
Sooknanan. Sooknanan did in fact testify and denied the conversa-
tion testified to by Bottex. However, we find that this error does not
affect the outcome of this case in light of the judge’s discrediting
of all the Respondent’s witnesses. Further, as the General Counsel
argued, Raymond’s testimony during cross-examination corroborated
Bottex’s insofar as Raymond admitted that when Bottex was laid off
there was lots of work to be done. We further note that the judge,
in describing Elliot Weiner’s testimony regarding his written warn-
ing to employee Guito Jordain for leaving his work station, stated
that Weiner had checked the bathroom by walking by but did not
find it necessary to go in because there was no odor emanating from
the bathroom. The record reflects that Weiner instead testified that
he was able to check the bathroom by walking by because the bath-
room had no door.
2 The General Counsel excepts to the judge’s failure to conclude
that the Respondent’s forceable removal of unlawfully discharged
employee Jordain from the plant violated Sec. 8(a)(3) and (1). We
find it unnecessary to pass on whether the removal itself was unlaw-
ful because we conclude that the Respondent’s action was part and
parcel of the unlawful discharge.
3 We shall modify the judge’s Order to more closely reflect and
to fully remedy the violations found.
Juniper Industries Inc.; Juniper Elbow Co., Inc.,
also d/b/a Screen Guard and Local 719–S, Pro-
duction, Service and Sales District Council,
H.E.R.E., AFL–CIO
Juniper Industries Inc.; Juniper Elbow Co., Inc.,
also d/b/a Screen Guard and Maceo Wilkinson.
Cases 29–CA–13616, 29–CA–13635, 29–CA–
13706, 29–CA–13773, 29–CA–13790, and 29–
CA–13829
May 21, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 4, 1992, Administrative Law Judge Rob-
ert T. Snyder issued the attached decision. The Re-
spondent and the General Counsel filed exceptions,
supporting briefs, and answering briefs.
The National Labor Relations Board has delegated
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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified and set forth in full below.3
1. The Respondent has excepted to certain credibil-
ity resolutions made by the judge. This matter was
heard initially by Administrative Law Judge Harold
Lawrence, who died before he could issue a decision.
By letter of July 24, 1989, Associate Chief Administra-
tive Law Judge Edwin Bennett notified the parties of
Judge Lawrence’s death and informed them of various
possible courses of action for the disposition of the
case, including designation of another judge to prepare
a decision on the record made, or a hearing de novo
before another judge at which utilization of the earlier
record, or parts thereof, would be subject to the rulings
of that judge.
The parties ultimately agreed to a hearing de novo.
The Board then assigned the matter to Judge Snyder,
who began a hearing on the case on October 22, 1990.
On the second day of the hearing, the parties agreed
to stipulate the record made before Judge Lawrence to-
gether with the record made the previous day before
Judge Snyder, with all the exhibits, as the full record
in the proceeding. They agreed that Judge Snyder
would render a decision based on that record and
waived the judge’s viewing of witnesses who had not
testified before him on the previous day.
The Respondent now excepts to certain credibility
resolutions, emphasizing that they were not based on
the hearing demeanor of the witnesses. It is true that
the normal weight accorded to credibility determina-
tions, Standard Dry Wall Products, 91 NLRB 544
(1950), does not apply in circumstances such as those
here. However, where the parties have agreed to waive
their right to have the judge view certain witnesses and
have him render a decision on the written record be-
fore him, they have effectively agreed to permit credi-
bility resolutions as well as findings of fact and con-
clusions of law to be determined by one who did not
observe the demeanor of witnesses at the hearing. In
those circumstances, deference is due the judge’s
credibility resolutions. In this case, we do not agree
with the Respondent’s contention that Judge Snyder’s
credibility resolutions were contrary to the evidence as
established by the record as a whole. Huttig Sash &
Door, 263 NLRB 1256 (1982), enfd. mem. 717 F.2d
1400 (11th Cir. 1983).
2. The judge found that two of the Respondent’s
foremen, Luis Aponte and Pete Morency, were statu-
tory supervisors and agents of the Respondent and,
110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
therefore, that their conduct was attributable to the Re-
spondent. The judge essentially found supervisory sta-
tus based on the foremen’s authority to assign work,
noting as well that they performed clerical work at
their desks, were paid more than other employees in
their departments, and were held out to employees as
the representatives of management in their respective
departments. He also noted that when employee
Wilkinson asked the Respondent’s vice president, El-
liot Weiner, for a raise he was told to go through his
foreman, Aponte. Finally, he made reference to the
ratio of employees to supervisors. The Respondent
excepts to these findings. For the reasons set forth
below, we find merit to the Respondent’s exception
with respect to the status of Foreman Morency but
agree with the judge’s finding with respect to the sta-
tus of Foreman Aponte.
Section 2(11) of the Act lists in the disjunctive the
types of authority that give rise to supervisory status.
Thus, the exercise of any one of the types of authority
set out in Section 2(11) of the Act is sufficient to es-
tablish supervisor status. Such authority, however,
must be exercised with independent judgment on be-
half of management and not in a routine or sporadic
manner. The Door, 297 NLRB 601 (1990).
As to Foreman Morency, we find that the General
Counsel has failed to prove that he exercised independ-
ent judgment in his assignment of work so as to war-
rant a finding of supervisory status. Morency was the
shipping department foreman. His duties essentially in-
volved working at the loading dock and giving out
work assignments in conjunction with that work, as
well as taking care of customers. The tasks usually as-
sociated with pulling orders and loading trucks have
been found to be routine and to require little direct su-
pervision. Esco Corp., 298 NLRB 837 (1990); Sears,
Roebuck & Co., 292 NLRB 753 (1989); Waterbed
World, 286 NLRB 425 (1987). Here, there is no evi-
dence that Morency’s assignments of work to other
loading dock employees were other than routine or that
these assignments required the exercise of independent
judgment. In sum, although we agree with the judge
that the record establishes that Morency assigned work,
it is totally devoid of evidence that he did so with the
independent judgment essential to a finding of super-
visory status. Blue Star Ready-Mix Concrete Corp.,
305 NLRB 429 (1991).
Nor are the secondary indicia of supervisory status
noted by the judge determinative in the absence of evi-
dence that an employee exercises that independent
judgment that is essential to a finding of supervisory
status or of any primary indicia of such status. The
performance of clerical duties has not been considered
sufficient to warrant a conclusion that a lead ware-
houseman is a supervisor. Waterbed World, supra.
Similarly, higher compensation has not been found dis-
positive of supervisory status. Polynesian Hospitality
Tours, 297 NLRB 228 (1989), enfd. 920 F.2d 71 (D.C.
Cir. 1990); Waterbed World, supra; Auto West Toyota,
284 NLRB 659 (1987); Ballou Brick Co., 277 NLRB
41 (1985). As to the ratio of employees to supervisors,
this has not been found to establish supervisory status
where, as here, little supervision is necessary given the
routine nature of the jobs. Auto West Toyota, supra. Fi-
nally, the Board has rejected premising a finding that
an individual is a supervisor on a respondent’s holding
out of that individual as a supervisor (if, indeed, the
Respondent has done so) in the absence of evidence
that the individual’s duties warranted such a finding.
Polynesian Hospitality Tours, supra.
We further find, contrary to the judge, that the evi-
dence does not establish that Morency is an agent of
the Respondent. In this regard, the General Counsel
has failed to demonstrate that Morency was placed in
the position of a conduit reflecting company policy so
that employees could reasonably believe that Morency
spoke for management in connection with the union
campaign. Multimatic Products, 288 NLRB 1279, 1305
fn. 181 (1988); Waterbed World, supra.
Thus, in light of our finding that Morency was nei-
ther a supervisor nor an agent of the Respondent, we
reverse the judge’s finding that the statements made by
Morency to employee Bottex after Bottex’s layoff
were attributable to the Respondent and violated Sec-
tion 8(a)(1) of the Act. Similarly, in adopting the
judge’s finding that the Respondent’s termination of
Bottex was unlawful, we do not rely on Morency’s
statements to Bottex to support that finding.
In contrast to our conclusion regarding Foreman
Morency, we find that the record evidence dem-
onstrates that Foreman Aponte’s authority with respect
to the assignment of work was exercised with the inde-
pendent judgment necessary for a finding of super-
visory status. Aponte supervised the performance of
welding and heavy fabrication work. There was testi-
mony in the record that Aponte moved employees be-
tween jobs, sent employees from his area to other
worksites, established priorities in work assignments,
and gave instructions on how to perform work. That
such instructions were not routine but rather involved
the exercise of independent judgment is demonstrated
clearly in the detailed and lengthy testimony concern-
ing the Respondent’s termination of employee Maceo
Wilkinson. Aponte instructed Wilkinson and a helper
not only to polish stainless steel plates, but gave spe-
cific instructions on how to accomplish the task. In
this regard, there was considerable evidence that there
were different ways to do the work involved. Aponte
then oversaw the job to determine if the work was
being correctly performed and, additionally, gave
Wilkinson further guidance when he saw that the em-
ployees were having difficulty successfully performing
111JUNIPER INDUSTRIES
4 Although the judge does not explicitly state that he finds the
search of lunchbags unlawful, he provides a remedy for such a viola-
tion in his Order.
the assignment. Finally, Aponte testified that he as-
signed work based on employee experience and ‘‘what
they can do,’’ which the Respondent in its brief inter-
prets as a reference to employees’ skill. Thus, we find
on the basis of the above that Aponte exercises discre-
tion and independent judgment in the exercise of his
authority to assign work and, therefore, is a supervisor
under the Act. Louisiana Gas Service Co., 303 NLRB
908 (1991); Cannon Industries, 291 NLRB 632 (1988);
Rose Metals Products, 289 NLRB 1153 (1988); Impact
Industries, 285 NLRB 5 (1987), reversed on other
grounds 847 F.2d 379 (7th Cir. 1988).
3. Additionally, we disagree with the judge’s appar-
ent finding that the Respondent violated the Act by El-
liot Weiner’s search of employee lunchbags.4 Accord-
ing to the facts as found by the judge, during late July
or August 1988, Weiner stopped employee Wilkinson
and another unidentified employee on their return from
lunch and searched their lunchbags. Wilkinson asked
why the bags were being searched and Weiner gave no
reason. The employees complied with the search and
then were told to proceed into the plant. The judge
noted Weiner’s testimony that sometime on payday he
would check lunchbags to see if employees were
bringing alcoholic beverages into the plant but that
Weiner was not sure when he had last checked prior
to the event at issue.
Based on the recitation of his factual findings, and
without further elaboration or discussion, the judge in-
cluded in his Order a provision requiring the Respond-
ent to cease and desist from engaging in searches of
lunchbags of union adherents. We conclude that the
judge’s factual findings do not warrant the finding of
a violation. Thus, the judge made no specific finding,
and the record does not show, that Wilkinson or any
other employee was singled out for disparate treatment
with respect to the searches of lunchbags because of
union activity. Indeed, the record is not clear whether
Wilkinson’s union activity was known by the Re-
spondent at the time of the event at issue. Nor did the
judge make a finding that the Respondent had not
checked lunchbags in similar situations before this
search. In these circumstances, we find that the evi-
dence is insufficient to establish that the lunchbag
search violated the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Juniper Industries Inc.; Juniper Elbow
Co., Inc., also d/b/a Screen Guard, Queens, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees in regard to their union
desires or activities.
(b) Giving the impression that it is keeping under
surveillance the union activities of its employees.
(c) Threatening to close the plant or move it if or
because the employees select the Union as their bar-
gaining agent.
(d) Telling employees that if they wanted overtime
they should go to the Union for it.
(e) Threatening to reassign employees because of
their union activities.
(f) Assigning employees more arduous or less desir-
able work because of their union activities.
(g) Restricting employees by making them seek per-
mission of the production manager before leaving their
work stations.
(h) Reducing the amount of time allowed for em-
ployees to leave work to cash their checks.
(i) Canceling Saturday overtime work.
(j) Discharging or terminating or otherwise discrimi-
nating against employees for supporting the Union or
engaging in protected concerted activities.
(k) In any other manner interfering with, restraining,
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 Guito Jourdain, Ernst Jean, Hector Guer-
rero, and Maceo Wilkinson immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed and make them whole
for any loss of earnings and other benefits suffered as
a result of the discrimination against them.
(b) Remove from its files any reference to the un-
lawful discharges and any warning slips issued to them
and notify the employees named immediately above,
and Elvire Bottex, in writing, that this has been done
and that the discharges will not be used against them
in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Make whole Elvire Bottex for the loss of earn-
ings she sustained between July 12 and November 18,
1988, plus interest.
(e) Make whole employees for any lost wages as a
result of the suspension of Saturday overtime assign-
ments during the period of July through October or
November 1988, plus interest.
(f) Post at its Metropolitan Avenue and 78th Street
plants in New York City, copies of the attached notice
112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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
National 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.’’
1 All dates are in 1988 unless specifically stated otherwise.
marked ‘‘Appendix’’5 Copies of the notice, on forms
provided by the Regional Director for Region 29, after
being signed by the Respondent’s authorized represent-
ative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
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 rights.
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 pro-
tected concerted activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting Local 719–S, Pro-
duction, Service and Sales District Council, H.E.R.E.,
AFL–CIO or any other union.
WE WILL NOT coercively question you about your
union support or activities.
WE WILL NOT give the impression we are surveilling
your union activities.
WE WILL NOT threaten to close our plants or move
them if or because the employees choose a union as
their collective-bargaining agent.
WE WILL NOT tell employees that if they want over-
time work they should go to the Union for it.
WE WILL NOT threaten to reassign employees be-
cause of their union activities.
WE WILL NOT assign employees more arduous or
less desirable work because of their union activities.
WE WILL NOT restrict employees by making them
seek permission of the production manager before
leaving their work station.
WE WILL NOT reduce the amount of time we have
allowed employees to leave work to cash their checks.
WE WILL NOT cancel Saturday overtime work.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
We have offered and Elvire Bottex has declined re-
instatement to her former position.
WE WILL offer Guito Jourdain, Ernst Jean, Hector
Guerrero, and Maceo Wilkinson immediately and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed and WE WILL make them
and Elvire Bottex whole for any loss of earnings and
other benefits resulting from their discharge, less any
net interim earnings, plus interest.
WE WILL notify each of them that we have removed
any reference to their discharges and their warning
slips from our files and such will not be used against
them in any way.
WE WILL make employees whole for any lost wages
as a result of our suspension of Saturday overtime as-
signments, plus interest.
JUNIPER INDUSTRIES INC.; JUNIPER
ELBOW CO., INC., ALSO D/B/A SCREEN
GUARD
Elias Feuers, Esq., for the General Counsel.
Joseph S. Rosenthal, Esq. and Jacqueline I. Meyer, Esq.
(Bondy & Schloss), for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. This case
was tried in New York on January 23 through 27 and on
February 27 and March 2, 1989,1 before Judge Harold Law-
rence and before me on October 22 and 23, 1990. After
Judge Lawrence’s untimely death, inquiries were made of the
parties regarding further proceedings and it was determined
that the case would be tried de novo. On the second day of
the hearing before me the parties agreed to settle Case 29–
CA–14311 and that matter was severed and withdrawn. The
parties further agreed to stipulate the record made before
Judge Lawrence together with the record made on October
22 before me, together with the exhibits, as the full record
in this proceeding and on which I am issuing this decision.
The questions presented in this case are whether Re-
spondent attempted to defeat the Union’s organiza-
tional and representational activity by terminating on
various dates, five of its employees and engaged in
113JUNIPER INDUSTRIES
threats to terminate employees and move the plant,
surveilled its employees’ union activities or gave the
impression it was doing so and engaged in other con-
duct designed to harass its employees in violation of
Section 8(a)(1) and (3) of the Act.
On the entire record in this case, including the ex-
hibits and transcript made before Judge Lawrence and
me and considering the briefs filed by General Counsel
and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Juniper Industries Inc. (Juniper) and Respond-
ent Juniper Elbow Co., Inc., also d/b/a Screen Guard
(Elbow), both also referred to as Respondent, the Company,
or the Employer, are each corporations organized under and
existing by virtue of the laws of the State of New York and
are each doing business at 72–15 Metropolitan Avenue. in
Queens, New York (Metro) and at another location on 78th
Street (the 78th Street plant) and each is engaged in the man-
ufacture, sale, and distribution of fabricated metals and relat-
ed products.
During 1987 and 1988, Juniper and Elbow, in the conduct
of their business operations, sold and shipped from the loca-
tions products valued in excess of $50,000 directly to points
outside of New York State with some products going tn
United States Navy facilities.
Juniper and Elbow are affiliated business enterprises with
common officers, ownership, directors, management, and su-
pervisors; have formulated and administered a common labor
policy affecting their employees; have shared common prem-
ises and facilities; have provided services for and made sales
to each other; have interchanged personnel with each other;
and have held themselves out to the public as a single-inte-
grated enterprise.
Respondents Juniper and Elbow constitute a single-inte-
grated business enterprise and a single employer within the
meaning of the Act. I further find that each of them, and as
a single employer, are each engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and I further find
that Local 719–S, Production, Service, and Sales District
Council, H.E.R.E., AFL–CIO (the Union) is a labor organi-
zation with the meaning of Section 2(5) of the Act.
II. UNFAIR LABOR PRACTICES
A. Background
Juniper and Elbow each have Jesse Weiner as the presi-
dent of their corporations and Elliot Weiner, his son, as the
vice president. According to Respondent, these two plus
Steve Leiberman, Dennis Rosenberg, and Morris Zipser, all
of whom worked in the office at the Metro plant and George
Aniwene, who for 2 years until September 9, was the pro-
duction manager at Metro plant and Vladimir Kizner, the
plant and production manager at the 78th Street plant, were
the only supervisors in Respondent’s employ. Respondent
stated that they were salaried, had different medical plans,
and were the only ones authorized to hire or fire employees
or effectively recommend such.
Metro had between 85 and 110 employees during the rel-
evant period while the 78th Street plant had 20 to 40 em-
ployees. During the 2 years Aniwene was the production
manager he was the only one daily in the plant who had su-
pervisory authority, by Respondent’s definition, despite the
fact that the Metro plant had production facilities in its base-
ment and on three floors. Weiner said the foreman or
‘‘bosses’’ in the various departments were nothing more than
leadmen who were older and had more experience than other
employees and were able to give them directions and aid. El-
liot Weiner said these foremen performed regular production
work, were all hourly paid, received time and a half, and
were on a different medical plan than were the managers and
employees in the office.
Respondent’s employees were a racially mixed group con-
sisting mainly of Spanish 11 speaking employees and a small
group of Haitian employees who spoke Creole and most of
whom needed an interpreter when testifying.
Most of the activity in this case took place at the Metro
plant, which is a three-story group of buildings, sitting some
50 feet back from the sidewalk, enclosed by a high chain
link fence. There is a 24-foot driveway gate at the sidewalk
and a perpendicular low chain link fence runs from its left
side to the plant, separating this street level parking area
from a ramp to the left which goes to the basement. Directly
facing the gate is a loading dock for two trucks. Immediately
to the right of the loading dock, while facing the plant are
the two plant office windows. The plant entrance is next to
the windows and above it to the right is a large clock.
Normal business hours were 8 a.m. to 5:45 p.m. on Mon-
days through Thursdays with the employees stopping work at
4:45 p.m. on Fridays. Employees were urged to come in and
work from 7 to 8 a.m. on overtime and overtime was made
available to employees on Saturday from 7 a.m. to noon.
Employees were required to punch a timeclock and the
cards were maintained at the punch clock just inside the em-
ployees’ entrance. The workweek according to Elliot Weiner
ran from Monday to Friday and the payroll week ran from
Tuesday through the following Monday with payday on Fri-
day.
Respondent’s products were made from various types of
metal sheets by being cut, bent, welded, and polished when
necessary. The size of the products ranged from a small but-
terfly shaped object which could be held in hand to a stain-
less steel piece 30 inches wide and 48 to 60 inches tall. Re-
spondent had various departments in the plant through which
these products moved from inception to final product.
The complaint alleges 8(a)(1) violations by Jesse and El-
liot Weiner and by Foremen Aponte and Morency. As noted
above, Respondent denied the supervisory status of the latter
two and Elliot Weiner testified that only the production man-
ager and various office personnel had the power to hire or
fire employees or recommend such, or grant or recommend
wage increases.
Maceo Wilkinson testified for General Counsel that he
was told by Elliot Weiner to go through Foreman Aponte in
seeking a raise and did so and got the raise. However, Fore-
man Aponte corroborated Elliot Weiner’s testimony that he
had no authority to hire or fire or recommend or grant raises.
The Board in some situations has found where a company
sought to denigrate the status of its foremen, that a ratio of
114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees to supervisors such as that claimed here was im-
plausible and discounted such a claim.
In this case the foremen made assignments of work to
other employees; performed clerical work on orders at their
desks; and were paid the most of employees in their depart-
ments. Employees looked to them for assignments and they
were the representatives of management in their departments.
Elliot Weiner testified that all the employees who worked on
the loading dock were equal and all knew what they had to
do and that Foreman Morency was not a supervisor and did
not give the loading dock personnel their assignments. When
testifying concerning another matter, Weiner testified that he
was out on the loading dock to give assignments and see that
the work was done when Morency was absent due to an ac-
cident.
As will be set forth below, Elliot Weiner was not a credi-
ble witness and I do not credit his testimony or the testimony
of Respondent’s witnesses who corroborate his testimony
when that testimony is contradicted by other credible wit-
nesses.
In the matter of the supervisory status of Foremen Aponte
and Morency, I find that although they may not possess all
the indicia of supervisors, that they are held out to Respond-
ent’s employees as supervisors by Respondent and that they
are supervisors. At the very least they are agents of Respond-
ent, held out by Respondent as such and are so regarded by
Respondent’s employees. I find that Respondent is respon-
sible for their statements and actions.
B. Observations and Credibility
After reading and analyzing the transcript and exhibits
several things become apparent. It is clear Elliot Weiner was
extremely hostile to the Union, its organization, and certifi-
cation of it as a bargaining unit and to the people he thought
were responsible for bringing it into the plant. He claimed
that one of the individuals paid no attention to him and
laughed in his face, that another deliberately ruined material,
and that a third threatened him with a mallet. He equated
what he said was a loss of production with the Union being
present at the plant and testified he felt the union campaign
affected productivity. The day the Union was voted into the
plant he fired the production manager and took over plant
operations. Over the next several days he made numerous
changes in the way employees were treated, instituting with-
out notice, new disciplinary procedures and restrictions on
employees. Weiner testified that the employees, during the
time of the union campaign, were getting arrogant, that
things were breaking down, and that he waited until the cam-
paign was completed before firing Production Manager
George Aniwene. He testified he started pulling timecards
where employees were not in at precisely 8 a.m. so they
would have to come in and see him to get their timecards
to go to work and this would put pressure on them. He stated
‘‘the second thing is, I started giving out written warnings
if the guy was late, if he was away from his work station,
if he wasn’t performing satisfactorily. Because I found that
if you make a guy sign a piece of paper, you know, it scares
him a lot more.’’ He acknowledged there was no such sys-
tem prior to his taking over after the Union won the election.
Elliot Weiner exaggerated in statements and in his testi-
mony, as for example telling an employee who sought a
raise, that if the employee came in and worked an hour over-
time in the morning he would triple his take home pay. Con-
cerning another discriminatee he testified that the job was
overdue by a month which under further questioning was re-
duced to 1 or 2 weeks. He also testified regarding Maceo
Wilkinson that Wilkinson had spoiled the 15 to 20 large
pieces he was polishing. He was contradicted by Department
Foreman Aponte who testified only that the work had not
been completed and that it was not ruined. Other examples
of distorted testimony will be described infra.
The most damaging thing to Elliot Weiner’s credibility is
his defense to the Elvire Bottex termination.
Elvire Bottex testified that when she reported to work on
July 12 at 6:45 a.m., she saw two men standing near the
front gate and was given a union authorization card by them.
She left her purse in the plant and left the plant to get coffee.
As she was returning to the plant she was again stopped by
the two union organizers who asked her to sign a union card
and she did so and was given a couple of extra cards. At
that time she looked toward the plant and saw Elliot Weiner
in the first window to the left of the employees’ entrance
looking at her. She testified that there were no trucks at the
loading dock at that time and that trucks are usually found
at the loading dock on Monday and Friday and that they are
not necessarily there at any other time. When Bottex went
into the plant and before she could start to work she was sent
for by Elliot Weiner and terminated. This termination will be
further considered hereafter. On direct examination and on
cross-examination Bottex stated that she was standing at the
plant gate a few feet from the perpendicular fence when she
saw Elliot Weiner.
There was a 1-month break in the trial before Judge Law-
rence and, in that time, Elliot Weiner drew up a scale draw-
ing of the plant loading dock and gates and placed on that
drawing two oblong portions as trucks. Weiner’s drawing
also shows a crack which corresponds to a crack in the ce-
ment that runs from near the midpoint of the truck on the
right side towards the street and according to his scale draw-
ing is about 9 feet from the right side of the gate. The trucks
are drawn as oblong objects not counting for the reduced
height of the cab and engine compartment in front of the van
portion of the truck.
In discussing Respondent’s Exhibit 7, Weiner testified he
hired a commercial photographer and was with the photog-
rapher when the series of eight photographs showing the
plant from the gate were taken. He said the photographer
stood first near the left-hand side of the gate facing the
building in the approximate position Bottex said she was and
then he moved a couple of feet between each shot ending up
approximately two-thirds of the way across the gate to the
right and almost right on the crack. Weiner testified that he
told the photographer to take the pictures all the way up to
the crack and that he determined that you could not see into
the window from any of the positions where the photog-
rapher took the pictures.
Respondent’s attorney in describing Weiner’s testimony
said the photographs were taken at points 2 to 3 feet apart
and the photographer starting at the left side of the gate
moved to a position three quarters of the way across the gate
and that the photographs show a person could not see into
the office window even from that location. Respondent’s
counsel stated that he had a letter from the photographer stat-
115JUNIPER INDUSTRIES
ing that he started at the left-hand side and moved three
quarters of the way across the gate to make those pictures.
Later on cross-examination, Weiner testified contrary to
his earlier testimony that he was not with the photographer
during the whole time the photographer was taking pictures
but started him at one spot and saw him take the pictures
as he moved across the gate entrance. He told the photog-
rapher to go up to the crack and that the photographer got
within 1 foot of the crack in taking the pictures. Weiner tes-
tified that the photographer was right on the crack in the sec-
ond picture.
The testimony of Weiner including the recap version by
Respondent’s counsel are demonstrably false as to the var-
ious positions of the photographer in taking the pictures and
is demonstrated false by the pictures themselves.
Starting with the first picture in the eight-picture sequence,
it is clear that the photographer is standing near the midline
of the truck on the left since neither side of that truck is visi-
ble in the photograph. The right-hand or passenger side of
the truck on the right is visible for nearly its entire length.
Testimony was that these trucks are 8 feet wide. Viewing the
sequence of pictures those angles do not change. Each of the
remaining pictures show the center line of the truck on the
left and nothing of the sides of that truck is visible, whereas
the side of the truck on the right is visible at the same angle
throughout the eight pictures. If the photographer had moved
the 2 to 3 feet to his right from his initial position as Elliot
Weiner testified, the photographer would have been nearly
opposite the space between the two trucks and the angle of
view of the right-hand truck would have changed and by the
third move the driver’s side of the left truck would be visible
and little of the passenger side of the right truck would be
seen. If the photographer had continued to move to the right
at 10 feet he would have been near the midline of the truck
on the right and the picture would have shown a head on
view of the right truck with no side of it visible and the driv-
er’s side of the left truck would have been seen. But as the
pictures demonstrate, the photographer remained standing
near the center line of the truck on the left throughout the
sequence of pictures.
As to Weiner’s testimony that the photographer was on
top of the crack in the second picture, this is not true since
what the photographer did is tilt the camera upwards in those
pictures where the crack comes to the lower right-hand cor-
ner of the picture, versus the other pictures where the crack
comes out higher than the corner. This is shown by the fact
that looking at the row of windows on the second floor when
the photographer tilted the camera up, more rows of win-
dows are visible than in the other pictures where the crack
comes out above the corner.
Additionally, the shadows of the fence which runs per-
pendicularly from the street to the building and of the gate
never change their position in the series of pictures. If the
photographer had moved to his right as Elliot Weiner testi-
fied, those shadows relative to the ground and the trucks
would have been in a different place. It is noted that Judge
Lawrence raised a question regarding where the photographer
was stationed, stating that he did not see much distinction
between the photographs. Similarly, the General Counsel
raised questions as to where the photographer stood.
Weiner testified both on direct and cross-examination to
the preparation of Respondent’s Exhibit 7, knowing his testi-
mony was untrue and the exhibit an attempt to obfuscate, in
order to defeat the claim of Elvire Bottex. Weiner’s false tes-
timony, and attempt to deceive, shatters his credibility as to
the Bottex termination. Where someone produces and swears
to the truth of false and fraudulent evidence, I can place little
if any reliability on any of that person’s testimony. Further,
where that person is the dominant figure in the company as
the testimony demonstrates, and in the commission of the un-
fair labor practices, then I can place no reliability on other
Respondent witnesses when they support Weiner’s attempts
to deny or deflect unfair labor practices, where their testi-
mony and Weiner’s contradict testimony by other credible
witnesses.
Most of General Counsel’s witnesses testified through an
interpreter. On the whole they appeared from the transcript
to be making an effort to tell the truth without embellish-
ment. Their testimony was in the main coherent and plau-
sible. This observation cannot be made of Respondent’s testi-
mony and in particular that of Elliot Weiner.
On the basis of this resolution of credibility it becomes un-
necessary to resolve individual conflicts in testimony be-
tween General Counsel’s witnesses and Respondent’s wit-
nesses but rather to credit General Counsel’s witnesses if
their testimony is reasonable, not self-contradictory, and
plausible given all the facts and circumstances of this case.
C. Elvire Bottex
Elvire Bottex is from Haiti, speaks Creole and a little
English, and required the services of an interpreter in testify-
ing. She was hired on April 18, by Jesse Weiner who spoke
to her through Shipping Department Foreman Peter Morency
who is also Haitian and speaks Creole. She worked for
Morency for approximately 2 weeks and was transferred to
a first floor department where she worked for a foreman
named John. Raymond, the packing department foreman,
asked that she be transferred there and she worked for him
until her termination. Raymond had her teach a new em-
ployee named Naome how to do the work. Morency told
Bottex that he attempted to get Raymond to let Bottex work
in other departments and Raymond always refused because
she did her work well. On Tuesday, July 12, she arrived at
the plant in a car with several other Haitians including Ernst
Jean who was an electrician. She walked past union organiz-
ers at the plant gate and took a card from them. After drop-
ping her purse she left to get coffee and, on her way back
into the plant, was again approached by the two union orga-
nizers at the gate, took a second card from them, signed it,
and gave it back to them. As she was doing so she looked
towards the plant and saw Elliot Weiner in the window im-
mediately to the left of the employee entrance looking at her.
Bottex testified that there were no trucks at the loading
dock that morning and that trucks were usually there on
Mondays and Fridays. Guito Jourdain, who rode in the same
carpool with Bottex, testified that on the following day when
he got out of the car he was handed a union card at the plant
gate and had it in his hand as he went toward the plant and
saw Elliot Weiner standing by a window looking at the gate.
He stated that no trucks were parked at the loading dock that
morning.
When Bottex got to the shipping department and started to
get ready for work, Ernst Jean came by and told her Elliot
Weiner wanted to see her. Jean acted as the interpreter in her
116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conversation with Weiner who told her he had no work for
her, that work had gotten slow, and that he would call her
back some time. She asked Weiner if he thought she had
punched in and then left work to go buy coffee. He said no
that he did not think that. She asked to be paid and he said
she would have to wait until 8 a.m. because the person who
prepared the payroll wouldn’t be there until 8 a.m. She re-
turned to the shipping department and talked to Foreman
Raymond through Naome who translated for her. She told
Raymond what had happened and he said he would go talk
to Elliot Weiner and left to do so. When he came back Ray-
mond said he had told Elliot Weiner that there was a lot of
unfinished work and asked how he was going to get the
work done. Raymond said he did every thing he could to
keep her but Elliot Weiner did not want to do so. She told
Raymond that perhaps Weiner did not want her because she
spoke with the union people and signed a card. Raymond did
not answer and did not testify.
Ernst Jean, a Haitian who was an electrician at the plant,
corroborated Bottex’s testimony of her meeting with Weiner.
Jean was told by Weiner that he was going to lay off Bottex.
Jean said there was a part-timer working on the second floor
and if there was no work on the first floor Weiner should
move her to the second floor. Weiner replied that he had no
work for her. Later that same morning he heard Weiner and
Raymond discussing Bottex. Raymond asked Weiner why he
had fired her, that he had a lot of work for her to do. Weiner
said you may have work for her but I don’t.
On July 18, Morency called her at home and said one of
the employees told him she had been fired. He said he had
told Weiner that he could send her to another department but
that Weiner replied he did not have work for her and had
fired her because too many in the factory liked her and he
did not want her to get others in the factory to sign union
cards as she had done. Morency said that if he had been
there that day he would not have let her sign the union card
and knew that they had fired her because she had signed it.
Peter Morency testified for Respondent that he had a con-
versation with Bottex on July 12, when she called to inquire
about his accident but stated that he did not talk to her after
that and denied saying anything about the union card.
Morency corroborated Elliot Weiner in denying that he
had any supervisory authority or any authority at all over any
of the employees. He acknowledged that he had a desk and
phone at which he worked on occasion. He stated that he
was not aware of the Union’s organizing during July 1988,
but then said he did hear about it and saw some union men
outside the plant gate. Morency said none of the men talked
about the Union in front of him and that he never discussed
the Union. He added that he did not know whether Elliot
Weiner was for the Union or not; had never discussed it with
Weiner; and did not know how Weiner or his father felt
about the Union and never heard them talk about the Union.
In November, Bottex received a letter from Respondent of-
fering her a job and she and her husband went to the plant
and met with Weiner. The parties agreed she refused rein-
statement as of November 18, 1988.
I do not credit Morency’s denial of his conversation with
Bottex and find that it did occur. I find that the remarks he
made are attributable to Respondent and violate Section
8(a)(1) of the Act.
It is clear that Elliot Weiner saw Bottex take and sign a
union authorization card and decided to nip her union activi-
ties in the bud. He laid her off as soon as she reported inside
the plant. Weiner did not consult with anyone as to whether
there was any work for Bottex to do. He was not the produc-
tion manager at that point and according to his own testi-
mony had left the production end of the business to Produc-
tion Manager Aniwene at that time. The fact that Raymond
protested to Weiner that he had work for her to do and was
rebuffed by Elliot Weiner serves to underline the fact that
Weiner terminated Bottex because he saw her sign a union
card and was afraid that she would induce other employees
in the plant to sign union cards. This conclusion is further
bolstered by Morency’s statement to Bottex that she was ter-
minated for signing a union card and because Weiner thought
she might get other employees to do so.
I conclude and find that Respondent terminated Elvire
Bottex in violation of Section 8(a)(1) and (3) of the Act and
offered her reinstatement which she refused and that Re-
spondent’s backpay liability for Bottex runs from July 12
until November 18, 1988.
D. The 8(a)(1) Statement to Jourdain
After Jourdain took the union card and went into the plant
and punched his timecard on July 13, Elliot Weiner was
standing near the timeclock. Jourdain had the union author-
ization card in his hand and Weiner said Jourdain had a tick-
et for a trip to Florida. Jourdain said Weiner was angry when
he spoke and said further that he knew everybody who
signed a union card and that if they all signed up for the
Union he would move the factory to Florida and go with it.
Weiner testified ‘‘I do not remember seeing any union card
in his hand’’ and denied making the statement about the au-
thorization card being a ticket to Florida. He sought to turn
the statement by saying that the card was a lottery ticket so
Jourdain could go to Florida. He also denied making the
statement about closing the plant and moving it to Florida.
I find that Weiner made the statements attributed to him
by Jourdain noting that the employees knew Jesse Weiner
stayed in Florida part of the time and that the Weiners had
businesses in Florida. I find that the statements were threats
to close the plant if the employees brought in the Union and
move it and that the statements violated Section 8(a)(1) of
the Act.
E. Ernst Jean
Ernst Jean began his employment with Respondent on July
6, 1987, as an electrician. He had done some electrical work
for Jesse Weiner’s aunt who gave him a letter of rec-
ommendation. He told Elliott Weiner that he was capable of
working with machines up to 400 volts and could handle the
welding machines and showed Weiner his certification as an
electrician and was hired. Later Angelo Guerrero was hired
as an electrician after the other electrician named Walter left.
Elliot divided the electrical work between them, telling Jean
to take care of the welding machines and Angelo would take
care of the other machines.
Jean signed a union card on July 15. Elliot Weiner asked
if he had signed the card saying ‘‘if you signed the card I’m
going to send you to Florida.’’ He also asked Jean whether
other people around him had signed union cards.
117JUNIPER INDUSTRIES
On July 18, Weiner called Jean to the office and said that
most of the Haitians signed union cards. Jean said he did not
know. Weiner said that if they signed union cards and the
Union got in the plant, his father would close the plant.
Later, Jean asked Morency how he knew he, Jean, was in
charge of getting employees to sign union cards. Morency
answered that was what Elliot Weiner told him. Jean told
Morency that he did not care what the Company did to him,
that the Union was going to come in.
Jean testified that he gave out blank authorization cards
and received signed authorization cards from employees
which he turned over to the union organizers. He estimated
he received as many as 30 signed cards.
In his work Jean used automotive type clamps which he
got from the gas station close to the Company after getting
a requisition from the office. He needed some clamps on an
occasion after becoming involved with the Union and when
he asked for a requisition he was told by Elliot Weiner that
he did not want him to go out of the building, that he would
send somebody else to get the clamps. At that time, the
union organizers were standing outside the plant between the
gate and the gas station.
Either then or shortly thereafter, while in the office with
Elliot and Jesse Weiner, Jesse pointed to Jean and said ‘‘this
guy doesn’t like the company, next week we might send him
to work on 78th Street.’’ The following week Jean was sent
to the 78th Street plant which employs only about one-third
of the number of people at the Metro plant. Jean changed
lightbulbs which was part of his maintenance work and was
then told by Foreman Paul Scorci, that Elliot Weiner who
was then at the 78th Street plant told him to put Jean on a
grinder job. Jean protested that he was an electrician and was
not supposed to work on grinders. He went to see Elliot who
told him to see Vladimir Kizner, the 78th Street plant man-
ager. Jean went to him and was told he was to work as a
grinder operator. Jean refused saying he was an electrician
and grinding was not his job. Elliot Weiner told him that he
had to do whatever he was told to do. When Jean again said
his job was an electrician, Weiner called his father at the
Metro plant and was told to bring Jean back there. Jean
asked the Weiners why they were trying to make him work
as a grinder while they kept Angelo Guerrero on as an elec-
trician. Jesse Weiner said Jean had to do whatever they told
him to do. He said they gave him a job as an electrician and
he was going to do an electrician’s job, not something else.
He was terminated. Jean was not told that Respondent had
any problems with his work as an electrician which would
have led to this transfer or termination.
A grinders job is learned in 15 to 30 minutes by an un-
skilled laborer who is usually paid at a minimal rate. It is
clear that this transfer of Jean to a plant where there were
less employees was an effort to interfere with his successful
union activities at the Metro plant and to humiliate him by
downgrading him from his job as an electrician to that of a
laborer.
In defense to this discharge Elliot Weiner testified that in
his work on the welding machines, Jean made some mistakes
which ‘‘A-One Welding’’ reported to him. He claimed he re-
ceived three reports which showed that Jean was doing im-
proper work which led to this action. The reports would
come with the invoice from ‘‘A-One Welding’’ for their
work. Weiner stated that he or his father opened the mail and
immediately sent invoices on to the auditing department. The
invoice which accompanied the third report was time
stamped into that department 2 days after Jean was termi-
nated.
Jean testified that he had never been criticized for his elec-
trical work. Weiner did not say that he ever criticized Jean
for his electrical work, and does not indicate that any fore-
man did so. In his testimony, Elliot Weiner stated that in ad-
dition to his electrical work Ernest Jean operated machines.
Later, he recanted that testimony by saying that Jean would
test the machines after he had done electrical work on them.
There are other contradictions in Weiner’s testimony. He said
that the grinding work backed up when he sent Jean to do
some of it. Later on he said he had told Jean to set up a
new grinding machine. Elliot Weiner makes various claims
and then backs away from them, so that it is not clear from
his testimony why he says he sent Jean to the 78th Street
plant to do grinding work.
Jesse Weiner did not testify in this proceeding and there
was no denial of the statement by Jesse Weiner about send-
ing Jean to the 78th Street plant. I credit Jean’s testimony.
I conclude and find that Respondent sought to remove
Jean from its employ because of his prominence in the union
organizational activities by exiling him to the 78th Street
plant and downgrading him from an electrician to a grinders
job. I discredit Elliot Weiner’s claim that he did not know
Jean had signed a union card or had gotten others to do so.
Jean’s credited testimony shows that claim to be false.
I conclude and find that Respondent terminated Ernst Jean
on July 29 because of his union activities and has not there-
after offered him reinstatement in violation of Section 8(a)(1)
and (3) of the Act.
I conclude and find that Elliot Weiner’s interrogation and
Florida threat on July 15, the impression of surveillance by
indicating he knew the Haitians had signed union cards, and
the threat to move the plant on July 18 or 19, and Jesse
Weiner’s threat to transfer Jean to the 78th Street plant on
or about July 21, all violated Section 8(a)(1) of the Act.
F. Guito Jourdain
Jourdain started with Respondent on August 14, 1985, and
worked in laminating and cutting metal. His regular hours
were from 7 a.m. to 5:45 or 6 p.m. Monday through Thurs-
day, leaving on Friday between 4 and 4:45 p.m. and on Sat-
urday from 7 a.m. to noon. The regular lunch period at the
Company was 12 to 12:45 p.m. The employees were paid on
Fridays and until the Union won the election on September
9, the employees had been permitted to leave the company
premises when they received their paychecks so that they
could cash them, get lunch, and come back to work. Jourdain
also testified that there were no rules forbidding use of the
bathroom which he used two or three times daily.
As noted above, Elliot Weiner started giving written warn-
ings 1 or 2 days after he took over as production manager,
having fired George Aniwene, the previous production man-
ager, on the same day the Union won the election. Also
noted was Elliot Weiner’s creating a coercive and fearful at-
mosphere in the plant, grounding it on his asserted need to
increase production which he said had gone down during
Aniwene’s time as production manager. He claimed the prob-
lems got worse during the Union’s campaign.
118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Within a few days of the September 9 election, Elliot
Weiner told Jourdain that he did not need a union in the
plant and knew that a number of the employees had signed
for the Union. In August, Weiner stopped Saturday overtime
work, telling Jourdain that if he wanted Saturday work, to go
to the Union for it. These statements I conclude and find vio-
lated Section 8(a)(1) of the Act, by Respondent indicating
that union activities were under surveillance and that over-
time work was stopped because of the union organizing cam-
paign.
On September 16, Jourdain was working with Foreman
Oscar on a machine that folds metal. After folding it is nec-
essary to roll it and then the parts are put together leaving
a seam which must be hammered down using a wooden mal-
let. From use the mallet gets a ridge which must be ground
off.
Oscar told Jourdain to go use the grinding machine on the
second floor, Jourdain said he took 5 or 6 minutes to grind
the mallet and while returning saw Elliot Weiner coming
from the first to the second floor. Nothing was said by either.
When he returned to work Oscar said Weiner had asked for
him and he said Jourdain had gone to repair his hammer.
A few minutes later Weiner handed him a printed warning
slip (G.C. Exh. 6) which Jourdain said was blank and told
him to sign it and he did. Weiner told Jourdain he would
have to check with Weiner whenever he wanted to leave his
work station or leave work early. On the previous day
Jourdain got Oscar’s approval to leave work early. Previous
to this no employee had ever been disciplined or talked to
about leaving early if they notified their local foreman.
Weiner told Jourdain to come to the office if he was leaving
early or to tell him if he was not coming to work. Jourdain
asked why he could not tell Oscar, and was told by Weiner
not to. After signing the paper, Jourdain resumed work and
within a few minutes Weiner came back with another paper
and told Jourdain to sign it, that when Jourdain was not
working he was not to leave his work area. Jourdain refused
to sign the document (G.C. Exh. 7). Weiner said Jourdain
would have to sign it or he would be fired. Jourdain said he
would not sign and Weiner asked why. Jourdain said that if
he wanted a drink of water or had to go to the basement or
to the bathroom he would have to go ask Weiner first.
Weiner did not dispute that, but told Jourdain he would have
to sign the paper or leave, Jourdain said he wanted to speak
to Weiner about this problem and Weiner said he would have
to leave the plant and go outside and he would talk there.
Jourdain, again refused saying that they would have to pay
him his vacation pay and give him a document to take for
unemployment. Weiner said he would not give him anything
and Jourdain asked why. Weiner replied because he knew all
the Haitians signed for the Union and he did not need a Hai-
tian in that job. Jourdain again asked why and Weiner said
because all the Haitians had signed for the Union. Jourdain
pointed out that the Union won with 77 votes and that there
were only 7 Haitians in the plant. Weiner repeated that he
did not need Haitians on his job and for Jourdain to leave.
Jesse Weiner asked what was happening and Elliot Weiner
told him not to get involved that he would handle it.
Jourdain said that since Elliot Weiner was not giving him his
pay and what he requested he would not leave. Weiner called
the police and Jourdain left after getting his personal belong-
ings, being escorted from the plant by the police.
Elliot Weiner testified he went by Jourdain’s work station
and no one knew where Jourdain was. He went to the time-
clock and saw that Jourdain had punched out at noon and he
was not notified about it. On the next day he gave a warning
to Jourdain telling him he had to notify Weiner or someone
in the office if he was leaving or not coming in. Later that
day, he saw Jourdain was not at his work station and he did
not see him in the plant. Weiner said he walked by the bath-
room but did not go in to see if Jourdain was there since
there was no odor coming from the bathroom. Not having
found Jourdain he wrote out another warning which he gave
to Jourdain. Jourdain said he had been in the bathroom and
Weiner said he was not because he had looked in the bath-
room. He told Jourdain to sign the paper or he could not
work there. Jourdain said he would not sign the paper, that
he had protection that the Union was around now. Weiner
replied that he should work the way he did before the Union
came in, and not cause problems. He stated that at that point
Jourdain started going crazy and started pounding the mallet,
and he became frightened. He told Jourdain to punch out, but
Jourdain refused and he punched his card and called the po-
lice to remove him.
I do not credit Elliot Weiner’s testimony that he did not
see a union card in Jourdain’s hands or mention the Union.
Although Weiner claims he was enforcing his new regula-
tions, there is nothing other than Respondent’s Exhibit 5, an
undated hand-lettered cardboard sign stating that employees
must notify the manager if they expect to be late or absent,
which was at some time posted near the timeclock, as any
sort of notification to employees of his new procedure. It is
apparent that Weiner started to selectively write up those
who he considered transgressors, who not just incidently
were union supporters. It is evident that Elliot Weiner con-
sidered the Haitians the core union group and eliminated four
of the seven by the discharges in issue in this case.
Testimony indicated that if employees were going to be
absent they usually would notify their foreman or send in
word by someone. Elliot Weiner set up his new rules without
informing employees of them and enforcing them with these
written warnings, which he said he used because it scared
employees. Weiner’s actions in giving these two written
warnings to Jourdain within the matter of a few minutes and
adopting a tough attitude toward Jourdain was an evident at-
tempt to provoke a reaction, which he succeeded in doing.
His language to Jourdain indicates he was trying to push
Jourdain into the reaction which he finally got. I find that
Jourdain was provoked, and I find that Respondent sought to
and did terminate Jourdain because of his union support and
sentiments in violation of Section 8(a)(1) and (3) of the Act.
G. Hector Guerrero
Hector Guerrero started working for Respondent in Octo-
ber 1977 as a machine operator and worked on three dif-
ferent machines. Guerrero testified through a Spanish inter-
preter. During his nearly 11-year employment by Respondent
which included a period when Elliot Weiner was the produc-
tion manager before George Aniwene was hired for that posi-
tion, Guerrero was late four or five times a month and was
never reprimanded for such. He was also one of Respond-
ent’s better workers, stating that he had never been criticized
about his work.
119JUNIPER INDUSTRIES
In July he received a union card from the organizers at the
gate, and took it home, signed it, brought it back, and at-
tempted to hand it to one of the organizers who told him to
give it to Jean, the electrician in the plant. He did so.
Shortly thereafter, while with his brother and another em-
ployee, Foreman Aponte asked Hector if he had signed a
union card and he said he had. Aponte said that those who
signed or filled out union cards would be fired.
Although Aponte denied asking Guerrero if he had signed
a union card or talking to him about the Union, I do not
credit Aponte’s denial. There is no reason to discredit Guer-
rero whose testimony appeared straightforward and involved
other employees. Aponte and Morency both denied making
any 8(a)(1) statements, consonant with Respondent’s position
and in keeping with Elliot Weiner’s denial of making any
such statements.
Accordingly, I find that the statements were made by
Aponte, and were an interrogation and coercive threat viola-
tive of Section 8(a)(1).
On July 21, Guerrero asked Elliot Weiner for a raise and
was told to start working at 7 a.m. instead of 7:45 and he
would get a raise by doing such. Guerrero may not have un-
derstood what Weiner meant. In any event, Guerrero contin-
ued working the same hours although being late on occasion.
On September 2, he again asked Weiner for a raise and
Weiner said he did not need an increase, because if the
Union won he would have to close the plant. This statement
is a threat of plant closure violative of Section 8(a)(1) and
I so find.
Following the union election, Guerrero was given three
written warnings to sign by Elliot Weiner, two of them on
1 day. On the first occasion he was a few minutes late and
his timecard was not in the rack. He asked Weiner for it and
punched in after Weiner had him sign a paper. Guerrero tes-
tified that on each of the occasions there was nothing hand-
written on these papers and identified the warning slips with
his signature. Later that same day, he was near the bathroom
when Weiner asked him to sign a second paper, which he
did, and nothing more was said to him.
Guerrero testified that in the 10 years he had worked for
the Company he went to the bathroom whenever he needed
to do so and in his job had to go use different machines,
some of which were on another floor. He said he had always
been free to move around and do his work without asking
anyone for permission to do so.
On September 15, he was again a few minutes late and at
the timeclock, was given his timecard by Weiner, who asked
him to sign another document. Again he testified that nothing
was written on the document and he signed it.
Guerrero was at work on time on September 16 and 19.
On September 19, he was working on some metal after first
bending it in the basement shop when Weiner told him there
was no more work for him. He said alright and punched out.
Weiner and Guerrero agree that Weiner did not give him any
reason for the termination.
Elliot Weiner testified that he fired Guerrero because he
was a screwball, that he was slowing down, not doing his
job. He stated that Guerrero had worked for the Company for
10 years or more and it was just no longer worthwhile to
keep him; that he was not doing his job and was not deliver-
ing the product that Weiner thought he should be delivering.
Weiner gave no details or documentation to substantiate this
testimony. He stated that Guerrero thought it was a joke and
would laugh in his and the supervisors’ faces. However,
Weiner did not recall when Guerrero started laughing in his
or others’ faces. He said that when he became production
manager he warned Guerrero about laughing in his face.
Weiner’s testimony and his aggressive stance on other mat-
ters makes this testimony appear implausible.
Weiner was then examined as to the position Respondent
took regarding Guerrero’s termination with state agencies
concerning Guerrero’s application for unemployment bene-
fits. Both on the state papers and in Guerrero’s personnel file
kept by the Company was a statement that he was discharged
for lateness and absenteeism and Weiner acknowledged that.
Weiner added that he terminated Guerrero for ‘‘screwing
off.’’ Weiner admitted that there was nothing in the person-
nel file that showed Guerrero was late either on the day he
was terminated or the day before. He next stated that he fired
Guerrero for intentionally destroying material using the
wrong type of pipe in what he was fabricating.
On one side we have the facts that Guerrero needed a
Spanish interpreter during the trial and probably is not famil-
iar with written English; his testimony that nothing was writ-
ten on the disciplinary warning notices when he signed them;
and that he was never warned about his working habits or
work and was given no reason for his termination. On the
other side we have Respondent’s self-contradictory reasons
for the termination, which were continually embellished by
Weiner. Weiner’s testimony is not credible and I conclude
that Respondent’s reasons for Guerrero’s termination are
false.
I have previously credited witnesses who testified that El-
liot Weiner kept a lookout on the activities of the employees
and union organizers at the front gate. It is possible that
Weiner observed Guerrero taking a union card but there is
no probative evidence to establish that. However, I have
credited Guerrero’s testimony that he was interrogated by
Aponte as to whether he signed a union card and admitted
he had been and was thereafter threatened about having done
so. I have also previously found that Aponte is Respondent’s
agent and that Respondent is liable for his statements and ac-
tions. Here, the knowledge of Guerrero’s union activity gar-
nered by Aponte, is knowledge of Respondent. Weiner’s
warning notices to Guerrero were a part of his retaliation
against the employees for voting the Union in or, as he put
it, his way of scaring the employees. Here, Respondent har-
assed a long-time employee for his normal work activity and
terminated him for asserted reasons not made known to the
individual. The Board has long held that shifting of defenses
or reasons for termination as Weiner did here is good
grounds to discredit them, which I here do.
Accordingly, I find that Respondent by its termination of
Hector Guerrero on September 19, 1988, violated Section
8(a)(1) and (3) of the Act.
H. Maceo Wilkinson
Wilkinson began his employment with Respondent in Jan-
uary 1985 as a welder working in the basement of the Metro
building. In addition to welding, about 50 percent of the time
during 1988 he worked on other machines, breaking material,
rolling it, and on occasion he did some polishing. He testi-
fied that Foreman Aponte gave him all his work assignments
throughout his employment and approved his leaving early or
120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
time off. In 1987, he asked Elliot Weiner for a raise and was
told to go through Aponte, not to come directly to Weiner.
He asked Aponte for a raise and thereafter got one.
Wilkinson testified that on the payday following the union
election, Elliot Weiner cut the time allowed employees to
leave the plant to cash their checks. Aniwene gave out the
employee checks by 11:45 a.m. and employees left to cash
their checks and eat lunch. Following the election, Weiner
gave out checks later so that employees got them as late as
11:58 a.m., which cut into their time, contrary to the prior
practice.
Weiner admitted that he changed the practice, testifying
that George Aniwene started giving checks to employees
around 11:30 a.m. and the employees would stop work, look
at their checks and leave stretching the lunch hour out be-
yond the additional 15 minutes the Company allowed for
check cashing. This was another part of Weiner’s crackdown
program on the employees, to get ‘‘more production.’’ I do
not credit Weiner’s time estimates, but rather credit the em-
ployees who were the recipients of his crackdown. I find that
he nearly eliminated an employee benefit by reducing the
check cashing time allowed the employees and that this was
in retaliation against the employees for their bringing a union
into the plant. This action violated Section 8(a)(1) of the Act.
Weiner testified that he stopped the Saturday overtime in
July because it was extremely hot and the employees were
not producing the amount of work he felt they should
produce, and it was not worthwhile to continue. Weiner of-
fered no evidence other than his statements concerning the
lack of production. The Saturday overtime was not reinstated
until October or November which was far after the time of
excessive heat. There appeared to be no lack of work for the
employees and Weiner did not make such a claim. Most em-
ployees who worked on Saturday considered the overtime
pay a benefit. If the heat was the principal factor in the loss
of production as Weiner indicated there was no reason not
to reinstate it before he did so. I find that the cancellation
of Saturday for the extended period was a reminder to the
employees of Respondent’s control of their work and income
and was done for that purpose and violated Section 8(a)(1)
and (3) of the Act.
Maceo Wilkinson was chosen as the shop steward for the
Metro plant employees and their employee delegate on the
negotiation committee. He had signed a union card on July
21. On September 14, Elliot Weiner gave him a written
warning for leaving his place and loafing. He told Weiner
that he had not been loafing and explained where he had
been. Weiner told him to sign the warning slip if he wanted
to continue working there. Wilkinson said no one had ever
checked on where he was while working in the plant prior
to that time.
During late July or August when returning from lunch,
Weiner stopped Wilkinson and another employee and told
them to open their lunch bags. Wilkinson asked why and
Weiner told him to just open the damn bag and let him see
in it. He complied and was told to go on into the plant.
Weiner testified that sometime on a payday he would
check the employees lunch bags to see whether they were
bringing alcoholic beverages into the plant. Weiner was not
sure when he had last checked lunch bags prior to this occa-
sion or who else he checked.
The first negotiation meeting between the Union and Com-
pany took place at Respondent attorney’s office on October
6, with union representatives, Wilkinson, and an employee
representative from the 78th Street plant. On the previous
day at lunchtime Wilkinson told Aponte he would be absent
the next day to attend a union negotiation meeting.
On October 7, when Wilkinson reported for work his time-
card was not in the rack. He was told to see Weiner in the
office. Weiner asked where he had been the day before. He
told Weiner that he had to go to the union meeting. Weiner
sent him on to work. An hour or so later Weiner gave him
a written warning and asked him to sign it, saying Wilkinson
had not told anyone he planned to be absent the previous
day. Wilkinson protested that he had told Aponte, but
Weiner told him to sign the paper. Wilkinson read the paper
which said ‘‘Did not report to work, did not call, did not
give notice.’’ Wilkinson then wrote on the paper that he had
told his foreman Aponte he would be absent and had his ap-
proval. He added that the union president some day earlier
had notified the Company that Wilkinson would be at the ne-
gotiating meeting. Weiner told Wilkinson to sign the f—ing
form. Wilkinson said he had a right to put his side of it on
the paper and protested Weiner’s language. Weiner replied,
‘‘Well this is war.’’ Wilkinson said he did not do anything
to Weiner and Weiner again told Wilkinson to sign the f—
ing form. Wilkinson wrote his statement on the form and
signed it.
On the back of this form is a statement which says that
Louie Aponte informed me, he was only notified on Maceo’s
return to work on 10–7–88, was not notified previously. Un-
derneath is a line and Aponte’s signature. When shown the
form, Aponte said he could not read it and signed it after El-
liot Weiner had explained to him he was having a problem
with Maceo because he had missed a day’s work. There was
no testimony that the statement was read to Aponte before
he signed it. Aponte’s testimony contradicts what was appar-
ently written by Weiner.
On November 1, Wilkinson punched the timecard incor-
rectly and asked Jesse Weiner what to do. He was told to
wait for Pete Morency, who would take care of it. A few
minutes later he explained what happened to Morency and
was told to leave the timecard on his desk, that he would
take care of it. Wilkinson changed his clothes and started
work. A short while later Elliot Weiner handed him a dis-
ciplinary notice, stating that he had clocked in at 7 a.m. but
did not start work until 7:10. He explained to Weiner what
had happened and wrote his explanation on the comment sec-
tion stating there was no intentional delay on his part.
Prior to the November 10 negotiation meeting, Wilkinson
told Respondent’s attorney to notify the Company he would
be attending the meeting, told Aponte the same thing, and
called the company office and said that he would be absent
to attend the negotiation meeting. On November 9,
Wilkinson spoke to Elliot Weiner and said he did not want
to cause trouble by being in the Union, and felt like it was
an honor to be a representative of the Union. He said he did
not know why Weiner was causing this problem about it.
Weiner said Wilkinson was old enough to know better, that
he should not come to him with this sort of a thing. After
some further conversation Wilkinson said he had to take off
the following day. Weiner said, ‘‘Okay, if you take off, if
you continue being absent then you won’t have to worry
121JUNIPER INDUSTRIES
about working here no more, if you’re absent continually like
this.’’ Wilkinson protested the absence was for the union ne-
gotiation. Weiner said it did not make a difference, that
Wilkinson knew right from wrong, and that he should have
said no to being a representative for the Union and the union
shop steward. I credit Wilkinson’s testimony and find this
threat of discharge by Elliot Weiner a violation of Section
8(a)(1) of the Act.
During the week prior to the December 14 negotiation
meeting, Wilkinson reminded Aponte that he would be going
to that meeting. Aponte said there was no problem as long
as Wilkinson told him he was going to be absent.
On December 13, Aponte told Wilkinson to polish some
15 to 20 large stainless steel pieces which were about 3 by
5 feet. Wilkinson said he had not polished stainless steel for
2 to 3 years and did not do much polishing work. Aponte
stated that Wilkinson had done a polishing job on stainless
steel 1 to 2 months prior but said that he had never polished
stainless steel panels.
Wilkinson was given a helper to hold the panels while he
held and pushed the panels beneath the stationary polishing
buffer cloth wheel. He said the 15 to 20 pieces had some
dents, scratches, and bend marks on them prior to polishing
and said he had not put any bumps or scratches on the
pieces. According to Wilkinson, deep scratches could not be
polished out with the soft buffing cloth that was on the
wheel.
Although Aponte indicated Wilkinson started on the
polishing job on December 12, Wilkinson testified specifi-
cally that he had not done so and had begun the job on the
morning of December 13 and worked on it until about 11
o’clock, when he was terminated. With his assistant support-
ing the piece, Wilkinson would guide and push it under the
buffing wheel, making one pass per side and did all the
pieces with the buffing wheel in one position. The position
of the wheel would be changed so he could make the next
pass. He said that with the deep scratches on the pieces, put-
ting them through once was not removing them and he did
a second pass on some of them but because the guide was
not stiff enough there was some waviness. He told Aponte
that doing it Aponte’s way was not working because of the
deep scratches and asked to do it a different way. Aponte
told him to do it the way he said and he continued to do
so except that on occasions he went over a particular pol-
ished area a second time in order to try to remove the deep
scratches.
Wilkinson said Aponte came back a couple of hours later
and was not satisfied with the results and went to get Elliot
Weiner. Weiner looked at it and told Wilkinson to get out.
Wilkinson left the job, packed up his clothing, and went to
the office to get his pay. Weiner told Wilkinson he could
now work full time for the Union.
Weiner testified that Aponte was upset when he came to
the office and told him to look at what Wilkinson was doing.
Weiner said he looked at the work Wilkinson was doing,
asked him if he had done it and when Wilkinson said yes,
he fired Wilkinson. He said there was no discussion about
the job or what Wilkinson had been told to do; that
Wilkinson had been polishing for years and knew what to
do. Weiner then started to embellish saying that Wilkinson
was always polishing in that area and just did not care what
he did, and that he ruined all 15 to 20 pieces.
Aponte said Wilkinson had polished stainless steel before,
but that he may not have polished anything quite that big.
He checked him on the job and he was doing it properly, but
when he came back an hour or two later, he saw some
bumps and bends in the material and told Wilkinson he was
doing it the wrong way. He said that Wilkinson said nothing
and he went to get Weiner, who when he saw the job said
Wilkinson had spoiled the work, and he was terminated.
During cross-examination, Aponte admitted that the stain-
less steel pieces Wilkinson was working on would have
scratches on them before they got to Wilkinson. In viewing
the large piece of metal exhibit at the hearing, Aponte said
there were scratches below the polished face of it, which in-
dicates they were there before Wilkinson did the work. He
said he set up the method to do it and that none of the pieces
had ever been finished but that some of them had been start-
ed properly. Regarding the piece that was not coming out
satisfactorily Aponte said he did not know why it was not
coming out well. He said there were bumps along the metal
but that otherwise Wilkinson was doing the job right. He fi-
nally admitted that the problem with the metal was not the
polishing but the imperfections that were there before the
polishing and that one bit of the polishing Wilkinson did was
not done the way he wanted it.
Considering all the testimony, it is clear that Weiner again
exaggerated excessively in stating that all the work was ru-
ined. Aponte made it clear that a number of the panels had
just been started and there was nothing wrong with them,
that they just needed to be completed. As far as can be deter-
mined from the testimony there was only one panel that had
a problem and it appears that the problem was not insuper-
able. Aponte did not know what was wrong with the
polishing procedure and wanted some assistance from
Weiner, which he did not get.
Wilkinson stated that he was familiar with polishing pro-
cedures and felt that a more abrasive polishing cloth was
needed to remove the scratches, as well as a more rigid sys-
tem to enable the work to be done smoothly since the large
pieces had to be juggled by the two men while attempting
to move them smoothly under the polishing wheel.
The fact that this was a large and difficult job and was
given to Wilkinson and another helper on the day before he
was due to appear at a union negotiating session raises the
spectra of whether this assignment and Weiner’s reaction to
it were planned. Whether this was a setup or not, it is clear
that Weiner overreacted to what occurred. His testimony is
contradicted by Aponte as to the damage done to the pieces,
and Aponte was at a loss to understand what was wrong with
the polishing procedure. In the background of this is
Weiner’s statement, noted above, concerning Wilkinson’s
membership on the negotiating committee and as a shop
steward that he would not have to worry about his job be-
cause he would not have it if he continued with the Union.
Weiner was ready to seize any opportunity to rid his Com-
pany of the Union and any union adherents. He put pressure
on Wilkinson on a number of occasions to have Wilkinson
abandon his shop steward and negotiation committee posi-
tions but Wilkinson clung to them. Weiner seized what he
thought was the right opportunity and fired Wilkinson.
I conclude and find that Respondent’s termination of
Wilkinson on December 13 violated Section 8(a)(1) and (3)
of the Act.
122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSION OF LAW
Respondent, by its threats and actions found above to be
in violation of Section 8(a)(1), and by its termination of
Elvire Bottex, Guito Jourdain, Ernst Jean, Hector Guerrero,
and Maceo Wilkinson, as found above, violated Section
8(a)(1) and (3) of the Act.
REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I conclude it must be ordered to cease and
desist and to take certain affirmative action designed to ef-
fectuate the policies of the Act.
The Respondent having discriminatorily discharged em-
ployees, it must offer them reinstatement and make them
whole for any loss of earnings and other benefits, computed
on a quarterly basis from date of discharge to date of proper
offer of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Because of the Respondent’s egregious misconduct, dem-
onstrating a general disregard for the employees’ fundamen-
tal rights, I find it necessary to issue a broad order requiring
the Respondent to cease and desist from infringing in any
other manner on rights guaranteed employees by Section 7
of the Act. Hickmott Foods, 242 NLRB 1357 (1979).
[Recommended Order omitted from publication.]