The Hartz Mountain Corp.

National Labor Relations Board - Board Decisions

Mar 2, 1977

228 N.L.R.B. 492 (N.L.R.B. 1977)

492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Hartz Mountain Corporation and District 65,
Distributive Workers of America and Local 806
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca, Party to the Contract, and Local 888, Retail
Clerks International Association , AFL-CIO, Party
in Interest
The Hartz Mountain Corporation and Rafael Bueno
and District 65, Distributive Workers of America,
Party in Interest
The Hartz Mountain Corporation and District 65,
Distributive Workers of America . Cases 22-CA-
5693, 22-CA-5749, 22-CA-5883, and 22-CA-
6053
March 2, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On November 24, 1975, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision in
this proceeding. Thereafter, Respondent, District 65,
Distributive Workers of America (herein called
District 65), the General Counsel, and Party to the
Contract, Local 806 a/w International Brotherhood
of TeamstersChauffeurs, Warehousemen and Help-
ers of America (herein called Local 806), filed;
exceptions and supporting briefs. Respondent filed a
brief in answer to the exceptions of the General
Counsel and District 65, District 65 filed an answer-
ing brief to Respondent 's exceptions , and the General
Counsel filed a brief in reply to the exceptions of
Respondent and Local 806.
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, findings,' and
i The Respondent, Local 806 , District 65 , and the General Counsel have
excepted to certain credibility findings made by the Administrative Law
Judge . It is the Board's established policy not to overrule an Administrative
Law Judge's resolutions with respect to credibility unless the clear prepon.
derance of all of the relevant evidence convinces us that the resolutions are
incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544(1950), enfd. 188
F 2d 362 (C.A. 3, 1951) We have carefully examined the record and find no
basis for reversing his findings.
In sec . 11, B, 3, C, of his Decision , the Administrative Law Judge noted
that "Respondent did not come forward at the trial to show that the number
or proportion of District 65 members terminated did not differ essentially
from the number or proportion of terminated employees (if any) belonging
exclusively to Teamsters Local 806."
Respondent excepts to the alleged "inference of the Administrative Law
Judge that the number of District 65 members terminated by Respondent
belonged exclusively to that Union at the time of their discharge " We find it
unnecessary to pass on the Administrative Law Judge 's findings in this
regard inasmuch as we conclude that Respondent failed to rebut the General
228 NLRB No. 49
conclusions of the Administrative Law Judge to the
extent consistent herewith and to adopt his recom-
mended Order as modified herein.2
1. The Administrative Law Judge correctly con-
cluded that Respondent violated Section 8(a)(2) and
(1) of the Act by its recognition of Local 806, and the
subsequent execution of a collective-bargaining
agreement with that Union. In reaching this conclu-
sion , the Administrative. Law Judge found that
Respondent's unlawful assistance to Local 806 during
the latter's organizing campaign required voiding of
the recognition. We agree that Respondent's numer-
ous acts of unlawful assistance to Local 806 render
the authorization cards obtained by that Union
unreliable as indicators of employee choice. We
further agree that it is not a prerequisite for voiding
the recognition to establish precisely the number of
cards procured by means of the unlawful assistance
and subtract that number from the total number of
otherwise valid cards submitted by Local 806 to
prove its majority status. However, in finding that the
recognition violated the Act, we also rely on the
Administrative Law Judge's further finding, which he
eventually found unnecessary to the result, that Local
806 had not obtained valid cards from a numerical
majority of Respondent's employees in an appropri-
ate unit when recognition was granted. In view of
these findings, we deem it unnecessary to make any
findings regarding the Administrative Law Judge's
discussion as to whether Respondent's recognition of
Local 806 was also unlawful under Midwest Piping
and Supply Co., Inc.3
2. The General Counsel has excepted to the
Administrative Law Judge's failure to find that the
discharges which violated Section 8(a)(3) and (1) of
the Act also violated Section 8(a)(2). We find merit to
this exception, for these discharges not only unlawful-
ly discouraged membership in District 65 and encour-
aged membership in Local 806, but also, by encour-
aging membership in Local 806, constituted unlawful
assistance to that labor organization. Accordingly, we
make the following additional Conclusion of Law,
Counsel's prima facie showing that the alleged discriminatees were dis-
charged because of their activities on behalf of District 65 and in order to
encourage membership in Local 806.
2 In par . A of his recommended Order the Administrative Law Judge
inadvertently erred in referring to "collective agreements" "dated" Decem-
ber 1, 1973, rather than "effective" on that date . We shall revise the
recommended Order accordingly.
Respondent has excepted to the portion of the Administrative Law
Judge's recommended Order which requires Respondent to reimburse
District 65 for reasonable counsel fees and disbursements incurred in the
course of this proceeding and for expenses incurred in connection with the
organizing campaign at Respondent 's Jersey City plant prior to December 1,
1973 We conclude that Respondent's defenses in this proceeding are not
patently frivolous and consequently, in accord with our usual policy, this
extraordinary remedy is not warranted in this proceeding . Cf. Heck's Inc.,
215 NLRB 765 (1974). We shall therefore modify the recommended Order
by deleting the reimbursement requirement.
3 63 NLRB 1060 (1945).
HARTZ MOUNTAIN CORP. 493
which we substitute for Conclusion of Law 3 in the
Administrative Law Judge' s Decision:
"3. By terminating the employment of 46 employ-
ees (identified in attached Appendix, and further set
forth in the recommended Order which follows
herein), under the circumstances described and found
in `II , B, 3,' supra, and failing to reinstate, recall236 or
rehire them, Respondent has discriminated in regard
to the hire, tenure, and terms or conditions of
employment of its employees, and continues so to do,
thereby discouraging membership in a labor organi-
zation (Distributive Workers District 65) and encour-
aging membership in another labor organization
(Teamsters Local 806), in violation of Section 8(a)(3)
of the Act; has unlawfully assisted Teamsters Local
806 in violation of Section 8(a)(2) of the Act; and has
interfered with, restrained, and coerced employees,
and continues to do so, in the exercise of their rights
under Section 7, in violation of Section 8(a)(1) of the
Act."
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 as
modified below and hereby orders that the Respon-
dent, The Hartz Mountain Corporation, Jersey City,
New Jersey, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order as so modified:
1. Substitute the word "effective" for the word
"dated" in the seventh line of paragraph 1(a).
2. Delete paragraph 2(c) and number subsequent
paragraphs and footnotes accordingly.
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL withdraw recognition from Teamsters
Local 806 as your bargaining representative.
WE WILL stop giving any effect to the "collec-
tive agreements" entered into between us and
Local 806 dated December 1, 1973. However, this
will not affect your wage rates, holidays, hospitali-
zation, or other benefits.
WE WILL stop giving any effect to your mem-
bership cards in Teamsters Local 806, signed at
any time after November 1, 1973, and WE WILL
NOT recognize Teamsters Local 806 as your
representative unless Local 806 is officially certi-
fied as your bargaining representative after a
secret-ballot election held by the National Labor
Relations Board.
WE WILL stop giving effect to any pay deduc-
tion "checkoff" authorization signed by you, at
any time after November 1, 1973, for payment to
Teamsters Local 806 of any initiation fees, dues,
or other moneys; and we will return those cards to
you.
WE WILL refund to you, as well as to all former
employees at our Jersey City plant, all moneys
withheld by us from your or their wages at any
time since November 1, 1973, paid over or
withheld from your wages for the purpose of being
paid over to Teamsters Local 806 for initiation
fees, dues, or otherwise.
WE WILL provide you with alternative hospitali-
zation, medical, sickness and related benefit
insurance or indemnity, so that your present
coverages will not be discontinued while you are
in our employ.
WE WILL NOT directly or indirectly give aid,
assistance, support, or preferential treatment to
any labor organization, in violation of the Act.
WE WILL NOT directly or indirectly authorize or
allow any officer, official, supervisor, or agent of
The Hartz Mountain Corporation to enlist or
solicit any of our employees to join any labor
organization.
WE WILL NOT threaten not to recognize, negoti-
ate, or deal with Distributive Workers District 65
(or any other labor organization) in the event our
employees select Distributive Workers District 65
(or any other labor organization) as their bargain-
ing representative.
WE WILL NOT terminate the employment of,
discharge, lay off, suspend, furlough, reprimand,
discipline, or in any other way retaliate or
discriminate against any employee because he or
she is a member of, active on behalf of, or
sympathetic to Distributive Workers District 65
(or any other labor organization), or because he or
she does not wish to join or become affiliated with
Teamsters Local 806 (unless Teamsters Local 806
is elected in a secret-ballot election conducted by
the National Labor Relations Board and we
thereafter enter into a lawful collective agreement
requiring membership in that Union).
WE WILL NOT in any other manner interfere
with, restrain, or coerce any of you in the exercise
of your right to self-organization; your right to
form, join, or assist any labor organization; your
right to bargain collectively through representa-
tives of your own choosing; your right to engage
in concerted activities for the purpose of collective
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining or other mutual aid or protection; or
your right to refrain from any or all such activities.
WE WILL offer each of the following persons
immediate and full reinstatement to their former
jobs or, if such jobs no longer exist, to substantial-
ly equivalent jobs, without prejudice to their
seniority and other rights, privileges, and benefits;
we will eliminate from their records any indication
that they were terminated for any reason reflect-
ing on their work performance or conduct; and we
will pay them all backpay they lost because we
terminated them, plus interest . The employees
are:
Rita Acevedo
Clara Aguilar
Fernando Aguirre
Julia Aguirre
Maria Elena Arguello
Irma Avellaneda
Elesa Bello
Damiana Cancel
Milagros Cancel
Luz C. (Celenia)
Cardona
Mariana Castro
Dominga Cintron
Marie Diana
Gladys Diaz
Luz Fabiola Diaz
Amada Flores
Alejandrina Fontanez
Jacinta Fontanez
Maria (J.) Gonzalez
Lucia Malave
Pascual Malave
Alejandrina Nieves
Marta Ocasio
Virginia Otero
Cecilia Pacheco
Elsa Pacheco
Alida Pagan
Daisy Pagan
Enriqueta Pagan
Gladys Pelliccia
Eloisa ("Aloisa") Perez
Luis (Enrique) Ramos
Amalia Rivera
Lydia M. Rivera
Mercedes Rivera
Rosa M. Rivera
Damiana Ruiz
Maria del Carmen
Salcedo
Angel Santiago
Maria Estelle Santiago
Marie Teresa Santiago
Ada Iris Vargas
Ana Ventura
Rosa Villegas
Ana Zapata (DeKalb
Street)
Ana Zapata (Bright
Street)
WE WILL eliminate from the records of the
following persons that they received a disciplinary
warning because of their visit to Plant Manager
Petrera on or about July 2, 1974, to complain
about the heat in the plant and to request a fan:
Nilda Lopez
Carmen Navarro
Alejandrina Nieves
Concepcion Pastrana
Eloisa (Aloisa) Perez
Albertine (Albertina)
Rodriguez
Maria Sanchez
Maritza Tiburcio
WE WILL make available to the National Labor
Relations Board our books and records to deter-
mine the amounts due to be paid back by us to our
employees and former employees.
We give our assurance that you are all free to join
or not to join Distributive Workers District 65 or any
other union (or, if you prefer, no union), as you see
fit, without any interference, restraint, coercion,
threat, or retaliation from us in any way, shape, or
form.
THE HARTZ MOUNTAIN
CORPORATION
DECISION
Preliminary Statement ; Issues
STANLEY N. OHLBAUM, Administrative Law Judge: This
consolidated proceeding 1 under the National Labor Rela-
tions Act, as amended, 29 U.S.C. Sec. 151, et seq. (Act), was
heard by me in Newark, New Jersey, from April 9, 1974,
through January 14, 1975, with all parties represented
throughout by counsel and afforded full opportunity to
present evidence 2 and arguments, as well as to file briefs
subsequent to conclusion of the hearing. After extension of
time upon application of counsel, briefs were received in
mid-April 1975. All exhibits were finally received on July
22, 1975. Record and briefs, estimated around 10,000 pages,
have been carefully considered.
The principal issues are whether, in violation of Section
8(a)(1), (2), and (3) of the Act: (1)(a) Respondent recog-
nized, entered into , maintained , and enforced labor agree-
ments containing mandatory union membership require-
ments on the part of its employees with Teamsters Local
806 as purported exclusive collective-bargaining represen-
tative of Respondent's employees at times when Respon-
dent knew that there existed rival representation claims by
other unions, Distributive Workers District 65 and Retail
Clerks Local 888; also, (b) Respondent improperly assisted
and supported Teamsters Local 806 by soliciting and
urging Respondent's employees to join that Union; and,
finally, (c) Respondent recognized and executed collective
agreements with Teamsters Local 806 at times when that
Union did not represent an uncoerced majority of Respon-
dent's employees; (2) Respondent discharged or perma-
nently laid off, and has since failed and refused to reinstate,
1 (1) Case 22-CA-5693 • Charge filed on November 29, 1973, amended on
December 6, 1973, further amended on January 2, 1974, complaint dated
February 19, 1974.
(2) Case 22-CA-5749. Charge filed on January 14,1974, consolidated
with Case 22-CA-5693 by consolidated complaint dated March 21, 1974.
(3) Case 22-CA-5883: Charge filed onApnl 23,1974,amended on July 11,
1974, consolidated with Cases 22-CA-5693 and 22-CA-5749 by order dated
August 22, 1974 ; consolidated complaint further amended by order dated
August 30, 1974
(4) Case 22-CA -6053: Charge filed on September 11,1974, consolidated
with Cases 22-CA-5693, 22-CA-5749, and 22-CA-5883 by order dated
September If, 1974; consolidated complaint further amended by order dated
October 15, 1974.
2 With few exceptions the witnesses testified through Spanish interpreters,
substantially retarding the pace of the hearing.
It is recognized that some inconsistencies presented by the record
(testimonial and documentary) as to name spellings and dates are irreconcil-
able. Under these circumstances , where a choice has been made without
discussion, it has not been deemed substantially material to the issues nor
such as to affect the results reached.
HARTZ MOUNTAIN CORP. 495
various employees and issued disciplinary warnings to
various other employees 3 because they engaged in concert-
ed activities protected under the Act, including affiliation
with and support of Distributive Workers District 65, or
because they failed to join Teamsters Local 806.
Upon the entire record' and my observation of the
testimonial demeanor of the witnesses, I make the follow-
ing:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
At all material times, the Respondent, The Hartz Moun-
tain Corporation, has been and is a New Jersey corporation
engaged in manufacture, sale, and distribution of pet food
and related products, with principal office and plant in
Harrison and another plant - the one here involved - in
Jersey City, New Jersey. In the course and conduct of
Respondent's business operations in the representative 12-
month period immediately preceding issuance of the
complaint, Respondent manufactured, sold, and distribut-
ed at and from its said Jersey City plant products valued in
excess of $50,000, of which products valued in excess of
$50,000 were shipped from that plant directly in interstate
commerce to places in States other than New Jersey.
I find that at all material times Respondent has been and
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act; that at all of those times
Charging Party District 65, Distributive Workers of Ameri-
ca (Distributive Workers District 65, Distributive Workers,
or District 65) as well as Party to the Contract Local 806,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America (Team-
sters Local 806, Teamsters, or Local 806), and Party in
Interest Local 888, Retail Clerks International Association,
AFL-CIO (Retail Clerks Local 888, Retail Clerks, or Local
888), has been and is a labor organization as defined in
Section 2(5) of the Act.
3 Discharges or permanent layoffs- Jose Peguero (December 10, 1973),
Rafael Bueno (December 27, 1973), 58 other employees (March 26 - August
23, 1974); disciplinary warnings: 8 employees (August 4, 1974).
4 The transcript , comprising 59 volumes , was paginated by the reporters
- presumably to expedite simultaneous transcription of different portions
- so as to omit some page numbers between volumes No contention has
been raised that any testimony has been omitted from the transcript
It is appropriate to comment upon the deplorable condition in which the
thousands of pages of exhibits in this case were received , unassembled, in
disorganized array in a large carton . Organization, assembly, and binding of
these was itself a time-consuming project. Only the desire to avoid indefinite
delay in disposition of an already unavoidably protracted proceeding
militated against imposition of corrective measures
5 Dates with unspecified years in sec. II refer to 1973.
6 The latest collective agreement (December 1, 1970 - May 31, 1973)
between Respondent and Retail Clerks specifies (G C. Exh . 7) the bargaining
unit as "all its [i e , Respondent 's Jersey City plant ] employees , excluding
executives , supervisors , guards and professional employees , as defined in the
II. ALLEGED UNFAIR LABOR PRACTICES 5
A. Respondent Employer 's Recognition and
Execution of Collective Labor Agreements With
Teamsters Local 806
1. Retail Clerks Local 888 decertification and its
postdecertificational organizational campaign
For perhaps 20 or more years prior to 1973, Respondent's
production workers at its Jersey City (or predecessor
locations) plant were represented for collective bargaining
by Retail Clerks Local 888 , Party in Interest here .6 On May
11, 1973, that Union was decertified as the result of a
statutory secret-ballot election conducted under Board
auspices . Following its decertification , Retail Clerks Local
888 continued to service the unit employees until May 31,
1973, the expiration date of its collective agreement; and it
attempted to reenlist the unit employees into its ranks.
These efforts included not only membership and bargain-
ing-representation designational card solicitations , but also
the holding of a general organizational meeting in late June
1973, handbilling, organizational visits to and activity
around the factory in June and July by that Union's
business agent , Lucas , and the procurement of more signed
membership and representational designation cards by
Lucas and members of an employees ' organizational
committee . These organizational efforts by Retail Clerks
Local 888 - by Lucas as well as various of Respondent's
unit employees - continued in September , October,
November, and December. The organizational visits of
Lucas to Respondent's plant - which are corroborated by
voluminous Retail Clerks records - and organizational
activities of Lucas there , such as his handbilling at the main
entrance to the plant , occurred under the observation of
Respondent's managerial personnel including Vice Presi-
dent Kaye , Plant Manager Morris Feinberg, as well as his
predecessor John Petrera , and various production supervi-
sors . As a result of these membership solicitations from
June to December 1973, Retail Clerks Business Representa-
tive Lucas turned over to the Board 's Newark, New Jersey,
Regional Office over 300 membership/bargaining authori-
zational cards (G.C. Exh. 8), out of about 338 unit
employees (fn. 12, infra), following an earlier conversation
between Lucas and Respondent Vice President Kaye
around August ( 1973) in which Lucas indicated his belief
that his Union had again attained majority support among
Labor Management Relations Act of 1947; as amended . Also excluded,
office employees , and outside sales employees that do not make deliveries";
and the signed appendix thereto likewise explicitly includes "porters."
Respondent now claims that this contract misdescribed the bargaining unit,
and that (according to Respondent) Retail Clerks Local 888 represented only
its production and warehouse employees and not its maintenance and
clerical employees even though the collective agreement did not "technical-
ly" so state . Crediting the testimony of Local 888 Business Agent James A.
Lucas, a persuasive witness, I find that the bargaining unit represented by
Local 888 included maintenance employees (of whom handyman -porter
Robert Buxton was established - including by his own credited testimony
- to be an example). The collective agreement , as it explicitly also recites,
did not include office clericals. According to Respondent Vice President
Gilbert Kaye, Respondent's mechanical repairmen were covered by a
company-maintained health and welfare plan and were subject to vacation
and leave policy not defined by its collective agreement with Local 888 -
perhaps without knowledge of Local 888 , since it was apparently not so
informed by Respondent.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the unit employees and offered to display the newly signed
membership/bargaining authorizational cards to establish
that to be a fact.? These cards (G.C. Exh. 8) range in date
from July 8 to November 1973, with the bulk in July and
August and also a substantial number (almost 70) in
November. According to Lucas, perhaps 10 organizational
or committee meetings were held by Retail Clerks with
Respondent's unit employees between June and December
1973, including three or four general membership meetings
such as the general meeting in Jersey City in July 1973. And
even according to Juan Vazquez (Vazquez) a unit employee
who acknowledged he was one of the leaders of a "fighting
committee" to oust Retail Clerks and resulting in its
decertification in May, as well as a leader of the Distribu-
tive Workers (District 65) campaign, and eventually a
seeming kingpin of the Teamsters (Local 806) recognitional
operation - testifying as a Teamsters witness, to his
knowledge Retail Clerks was engaged in reorganizational
efforts during the summer including August, and unit
employees were "giving many signatures to the [Retail
Clerks Local] 888" as late as November 1973. Another
Teamsters witness, Joaquin Ocana, similarly hostile to
Retail Clerks - like Vazquez, a member of the committee
to oust and decertify it - also testified that to his
knowledge Retail Clerks Local 888 was collecting unit
employees' bargaining authorizational designation cards as
late as October (as well as in the preceding August and
September) 1973.
Even Respondent Vice President Kaye - responsible,
among other things, for industrial relations at the Jersey
City plant - conceded that he was told by Jersey City
Plant Manager Feinberg, during July-August 1973, that
Local 888 was soliciting card authorizations from employ-
ees there; and also that, on a number of occasions during
the summer of 1973 following the decertification of Local
888, that Union's business agent Danny Fuchs (whom
Kaye knew) indicated that he was "still interested in the
[Jersey City] shop." Likewise, Respondent's vice president
for engineering and labor relations, James W. O'Connor,
testified that he, too, was aware of Local 888's (as well as
other unions') active organizational activity in the summer
and - from Jersey City Plant Manager Petrera - that in
September it was (with the other unions here involved)
making a strong drive outside of the plant, continuing as
late as mid-November 1973;9 and, indeed, that he even
relayed this information on to his superior, Respondent
Executive Vice President Lovitz.10 Further, Respondent's
former Jersey City plant general manager, Morris L.
7 An 8(a)(5) failure-to-bargain charge was fled by Retail Clerks Local
888 against Respondent on December 7, 1973, with the Union's deposit with
the Board 's Regional Director of some 322 alleged new member-
ship/bargaining authonzational cards of Respondent 's unit employees in
that Union . The charge was withdrawn by the Union on February 12, 1974.
a With but a single exception , dated in May.
9 On cross-examination O'Connor conceded that he had been informed
by Jersey City Plant Manager Petrera and "pipelines in the plant" that Retail
Clerks Local 888 (as well as Distributive Workers District 65) was engaged in
an organizational drive at the plant "through November" 1973. On redirect
examination on the following day, however, in response to a leading type
question, O'Connor indicated that his last information from Petrera
concerning "active" organizational efforts by Local 888 was "around" Labor
Day, and that between Labor Day and December 3, 1973, Petrera informed
him there was "little" activity on behalf of Local 888 or District 65. I credit
O'Connor's earlier testimony , elicited on cross-examination , since I view his
Feinberg - in overall charge of that plant - testified that
when or soon after he first came to work there, in mid-July
1973, he was informed by Respondent Vice President Kaye
that after the May decertification of Local 888 various
unions were attempting to organize the Jersey City plant;
that he (Feinberg) was aware in late July and early August
1973, based in part upon information from subordinates,
that there was employee interest in Local 888 (among other
unions); that in September or October he personally
observed Local 888 representatives or organizers outside of
the plant and that Local 888 Organizer Lucas had identified
and introduced himself to him outside of the plant; that he
was aware of organizing activity by Local 888 from August
through October; and that he reported this organizational
activity to Respondent Vice President Kaye in September
and October, adding with emphasis that "I [Feinberg] tell
you, he [Kaye] saw it," as well as possibly in November and
December 1973. Respondent's Jersey City plant personnel
manager, Efrain Morales, also conceded that prior to
December 3, 1973, he, too, knew of organizational activity
on behalf of Retail Clerks Local 888 (as well as Distributive
Workers District 65 and Teamsters Local 806).11
It is clear and I find that Retail Clerks Local 888 was, to
the knowledge of Respondent, actively engaged in substan-
tial union organizational activity among Respondent's
bargaining unit employees following its decertification in
May and at least through November 1973.
2. Distributive Workers District 65 organizational
campaign and requests for recognition
Commencing in May 1973, Distributive Workers District
65 (Charging Party here) also mounted a substantial
organizational campaign, including continued meetings, at
an early one of which (May 16) it received a "petition"
(G.C. Exh. 14) in the Spanish language - seemingly the
native if not largely the only tongue of many or most of the
unit employees - containing around 225 or 230 signa-
tures,12 requesting collective-bargaining representation on
their behalf by District 65. These organizational activities
culminated in the amassing of between 300 and 350 -
almost 300 of them in May and June - signed member-
ship/collective-bargaining authorizational designation
cards from Respondent's employees designating District 65
as their collective-bargaining representative. Tendering or
offering to establish these credentials to Respondent on
May 23, 1973, officials of Distributive Workers District 65
requested recognition and bargaining as the employees'
later testimony on redirect examination as a transparent attempt to
overcome an unfavorable (yet truthful) admission on cross-examination, and
as the equivocal , evasive , and modified testimony of a witness of poor quality
whom it is impossible for me to credit in substantial part, for reasons shown
in detail below.
10 Lovitz did not testify.
11 I cannot credit Morales ' testimony that he was unaware of employee
interest in Local 888 (or District 65) in the fall of 1973, this testimony being
not only directly at odds with what was plainly going on for all to see-as,
indeed, conceded by his managerial superiors as well as supervisory
subordinates-but incredible considering his capacity as plant personnel
manager.
iz Out of - according to Juan Vazquez, a protagonist of Teamsters Local
806 and hostile to District 65 - 338 total unit employees (including
maintenance workers).
N
HARTZ MOUNTAIN CORP. 497
authorized collective-bargaining representative. As will be
shown, the request - as well as further recognitional
requests - was wholly ineffectual. Meanwhile, District 65
continued its organizational activities, with the assistance
of an employees organizing committee selected at a mass
meeting of employees on May 16. The activities consisted
not only of holding many meetings but also handbilling,
membership solicitation, continuing discussions during free
time in the plant as well as outside of the plant, and the
accumulation from unit employees of additional member-
ship/bargaining representational authorization cards (a-
bout 30 or more in August, as well as some in September).
Distributive Workers District 65 Vice President Julio
Mojica - whom I observed to be an impressively credible
witness 13 - testified at length as to the substantial nature
and extent of the organizing activities of District 65 in
collaboration with Respondent's unit employees. His testi-
mony was substantially corroborated not only by numerous
other witnesses 14 but also by documentation including
records maintained by his union in the regular course of its
business . On the same date that Mojica sent to Respondent
the May 23 recognitional request expressing willingness to
establish its majority status , he forwarded a copy thereof
with an accompanying letter (May 23) to the Federal
Mediation and Conciliation Service in effect offering to
utilize its impartial auspices for demonstrating its majority
status . A copy of each of these letters is set forth as follows.
(1) District 65 letter to Respondent (G.C. Exh. 4):
May 23, 1973
Hartz Mountain
305 Broadway
Jersey City, New Jersey
Gentlemen:
Please be advised that an overwhelming majority of
your employees have designated District 65, Distribu-
tive Workers of America as their exclusive bargaining
agent in all matters relating to their wages, hours, and
working conditions. We are prepared to demonstrate
our majority status to you, or to any third party, or
through any impartial agency at a mutually convenient
time and place.
Please contact the undersigned for the purpose of
arranging such a meeting.
Very truly yours,
Julio Mojica
Vice-President
JM/cpm
cc: Federal Mediation and Conciliation Service
26; Federal Plaza
New York, N.Y. 10007
New Jersey State Board of Mediation
1100 Raymond Boulevard, Rm. 306
Newark, New Jersey 07103 [? ]
13 Although some inconsistencies were elicited from Modica under patient
cross-examination by Respondent's skilled counsel , these were principally
with regard to dates and similar details - not unusual even with the most
truthful witnesses - not substantially detracting from his overall truthful-
ness or reflecting adversely upon his overall credibility, which impressed me
^s high, based upon my demeanor observations as well as testimonial and
documentary corroboration.
(2) District 65 letter to FMCS (G.C. Exh. 5):
May 23, 1973
Federal Mediation and Conciliation Service
26 Federal Plaza
New York, New York 10007
Gentlemen:
Please be advised that we have this day demanded
recognition as the exclusive bargaining agent for the
employees of Hartz Mountain, 305 Broadway, Jersey
City, New Jersey. Since the National Labor Relations
Board has conducted an election involving another
union, which was decertified only ten days ago, our
Union cannot seek certification from the NLRB.
Accordingly, we have suggested to the employer in a
letter, a copy of which is enclosed, that an impartial
agency with expertise in these matters be designated to
establish our majority status.
A copy of this letter is being sent to the employer.
Very truly yours,
Julio Mojica
Vice-President
JM/cpm
cc: Hartz Mountain
305 Broadway
Jersey City, New Jersey
When District 65 received no response from Respondent
to these May 23 letters, within a few days Mojica and a
delegation visited Plant Manager Petrera to ascertain why
the letters were unanswered, evoking from Petrera the
response that the matter would have to be referred to
company headquarters (located in Harrison, New Jersey).
However, at least to the date of the instant hearing
commencing in 1974 no response 15 has been received from
Respondent, which nevertheless meanwhile on November
30, 1973, under circumstances which will be shown,
recognized Teamsters Local 806 swiftly on the heels of its
request for recognition.
Mojica reported to another mass meeting of the unit
employees on May 29 - called by their shop committee -
on his meeting with Plant Manager Petrera seeking recogni-
tion, and expressed his (Mojica's) opinion to the employees
that the Company was "stalling." Thereafter, Mojica - in
concert with District 65 Vice President John Gross and
various unit employees - continued organizational activi-
ties among the employees. These activities - like those of
Retail Clerks Local 888, as has been shown and, indeed,
admitted by Respondent's officials - were carried on
openly in and near Respondent's plant, in plain view and
within the observation of Respondent's officials.16 Respon-
dent's plant or its immediate outside area (directly in front
of the plant) were personally visited for organizational
14 Including District 65 Vice President John Gross, and unit employees
Fernando Aguirre, Nelson Cansing, Luz Fabiola Diaz, Concepcion Pastra-
na, and Mercedes Rivera.
15 Except for a telephone exchange between counsel for Distract 65 and
counsel for Respondent in July 1973, described infra.
16 As described by Mojica, Respondent's Jersey City plant is located at or
near the terminus of a dead-end road in a relatively isolated industrial area,
(Continued)
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities by District 65 Vice President Mojica or Vice
President Gross, or by both, on June 5,7, 11,12, 14, 15, 19,
21, 22, 25, 27, and 28. Not having meanwhile had any
response to its written and oral requests for recognition,
based upon advice of counsel , Mojica at a June 21 meeting
of unit employees pointed out to the latter that the
decertification of Retail Clerks Local 888 precluded anoth-
er Board-conducted election prior to May 11 , 1974, but that
the Company could recognize District 65 before then if it
wished to ; it was thereupon decided by the unit employees
that consideration of possible collective action against their
Employer - who had maintained a total silence upon the
District 65 request for recognition coupled with offer to
establish its majority representational credentials - should
be deferred' until after vacation season.
It is stipulated here by Respondent and Charging Party
District 65 that in a telephone conversation between
counsel for District 65 and counsel for Respondent on or
about July 10, 1973, counsel for District 65 again requested
recognition of that Union by Respondent ; that in a further
telephone conversation between the two on or about July
18, counsel for Respondent, acting on behalf of Respon-
dent, denied that request; that, in one of the foregoing
telephone conversations , (1) counsel for Respondent assert-
ed (a) that Respondent had a "good faith doubt" concern-
ing the majority status of District 65 and (b) that counsel
for Respondent was surprised at the request since there was
no obligation on Respondent 's part to recognize any union
for a year after May 11, 1973,17 and (2) counsel for District
65 stated (a) that, while the assertion in (b) was correct,
Respondent would be well advised not to assert that right,
which was optional to an employer, and (b ) that District 65
had "a majority of the employees of respondent signed up."
In July 1973, District 65 Vice President Mojica or Vice
President Gross , or both, continued personally with organi-
zational activities at the plant on July 2, 3, 5, 9, 11, 12, 16 -
19, 23 - 25, and 30. At the organizational meeting of July
25, the possibility of strike action for recognition - its
recognitional requests continuing to be ignored by Respon-
dent - was rediscussed ; however, on counsel's advice it
was decided to take no strike action but to attempt to
establish some sort of interim benefit (hospitalization)
program , to maintain organizational activity, and if neces-
sary to await the first possible Board election date (May 11,
1974). Accordingly, in August the plant was continued to
be visited regularly for organizational activities by Mojica
or Gross, on August 2, 7,9, 13,15, 17, 20, 21, 23, 24, 27, 28,
and 30. Meanwhile, during that month (August), soon after
the advent of a new general manager for the Jersey City
plant - namely, Morris Feinberg - on August 2 Mojica
and Gross , with Union Organizer Nosario approached and
introduced themselves to Feinberg . Prior to that date,
with employees transported by company buses from Journal Square , Jersey
customarily come out of the plant at lunchtime toCity. Many employ7.
gather around font gons, to have lunch in can, or to obtain lunch from
cars and return to the plant with it.
17 May 11 , 1973, was the date of decertification of Retail Clerks Local
888.
Is Formal District 65 shop (i .e., bargaining unit) mass meetings were held
on June 21, July 5, August 2, September 4 and 28, October 4, November 26,
and possibly December 6,1973 ; formal organizing committee meetings were
additionally held on June 5 and 28, July Sand 25, September 22, November
17 (December 6, possibly), and December 15, 1973. All of these were held at
the Hotel Plaza in Jersey City.
however, since his arrival in July, General Manager
Feinberg had ' been observing the District 65 organizing
activity , and before that it had been noticeable under the
observation of Plant Manager Petrera.
As indicated above, although the bulk - almost 300 - of
the District 65 membership/bargaining authorizational
designation cards had been obtained in May and June,
perhaps as many as 30 or more additional cards were
obtained in August , in which month the employees orga-
nizing committee, continuing its organizing activities under
the leadership of District 65 Officials Mojica and Gross,
itself consisted of 15 unit employees.18 Since, as also
indicated above, Respondent continued to maintain total
silence in the face of the District 65 recognitional requests 19
and offers to establish its bargaining credentials, a mass
meeting of unit employees was held by District 65 on
August 2, at which two basic decisions were made. First, it
was determined to provide a basic benefit (hospitalization)
program for unit employees for a monthly fee of $4,
pending resolution of the "crisis" posed by Respondent's
failure to meet with District 65 to enable the latter to
establish its representational credentials ; 20 second, it was
decided that a unit employees committee of 15 would
approach Respondent directly for recognition.
Also at the August 2, or possibly at a September 4,
meeting of the unit employees, District 65 officials were
presented with a further "petition" (G.C. Fxh. 17), contain-
ing 213 signatures , to the effect that the employees were not
in favor of the return of Retail Clerks Local 888 (the
decertified Union) but confirming their membership in and
allegiance to Distributive Workers District 65.
Continuing with District 65 organizational activities,
Respondent's plant was visited for those purposes personal-
ly by Mojica, Gross, Nosario, or by two or all three, on
September 4, 6, 7, 10, 12, 17, 19, 22, 24, 26, and 28; by
Mojica on October 2, 3, 9, 12, 15, 17, 23, 24, and 29; and by
Mojica also on November 1, 7, 8, 14, 16, 17, 19, 20, 23, 26,
and 29. I credit Mojica's testimony that during his
organizational visits and activities at and around Respon-
dent's Jersey City plant from May through the end of
November, he was frequently if not usually under observa-
tion of managerial personnel there including Plant Manag-
er Petrera, General Manager Feinberg , and Personnel
Manager Morales.
In mid-November 1973 Mojica learned that Teamsters
Local 806 was attempting to organize the Jersey City plant
employees. Thereupon, on November 28, District 65
Organization Director Frank Brown wrote Respondent and
Teamsters Local 806 registered letters dispatched on
November 28 or 29 and received and receipted for by
Teamsters on November 30 and Respondent on December
3, reminding and calling to their attention in the clearest of
19 I.e., other than the aforedescribed telephone conversations between
District 65 counsel and Respondent's counsel.
20 Although this action was voted upon favorably and some collections
were made thereunder , the interim benefit program was not implemented
because of an insufficient number of subscribers or registrants (i.e., short of
the 200 required). At a September 1973 meeting it was allegedly decided that
the funds collected should nevertheless be temporarily retained by District
65. It is not here determined, suggested, or relevant whether any impropriety
or irregularity was involved in District 65's handling of these funds under the
circumstances.
HARTZ MOUNTAIN CORP.
terms that District 65 still represented the unit employees
and to desist from ignoring or invading that status (C.P.
Exhs. 1, 2, 3, and 4; this correspondence is set forth in full in
a subsequent portion of this decision).
General Counsel witness Concepcion Pastrana, a mem-
ber (later chairman) of the employees District 65 organizing
committee formed after the decertification of Retail Clerks
Local 8$$, testified that after the decertification of that
Union the employees organizing committee obtained union
membership/bargaining authorizational designation cards
from Distributive Workers District 65, and distributed and
obtained signatures on a few hundred of them . According
to her testimony , committee members including herself
spoke to Respondent Vice President Kaye and Plant
Manager Petrera in the latter's office in late May 1973
about recognizing District 65 , and were informed that they
"had to wait for the company in Harrison . . . . [and]
would let [you ] know later." When the committee met with
General Manager Feinberg and Personnel Manager Mo-
rales in August, in Feinberg's office, concerning the same
matter and emphasized that the employees were without
"benefits" (i.e., hospitalization , etc.), according to Pastrana
the committee was informed that the problem would be
resolved within a few weeks, including pay increases, but
that with regard to recognition of the Union (District 65),
"Better forget about unions for a year . . . an election ha[s ]
to be waited for," and that Kaye stated that the Company
would not recognize any union for a year after the
decertification election . Since all of the promised increases
were not forthcoming, Pastrana and another committee
member (Vazquez) kept returning to Personnel Manager
Morales from August to October, with Morales giving
assurances that papers were being prepared , but that on the
subject of recognition of a union, "[You have] to wait for an
election ." Ms. Pastrana's testimony is clear that the District
65 employees organizing committee still existed and was
active in organizational activities as late as October and
November 1973. Indeed, on November 16, according to her
testimony, she and other committee members were autho-
rized by Personnel Manager Morales to leave the plant an
hour early, with pay, to attend a committee meeting at her
home . At that meeting (November 16, 1973), differences of
opinion arose among the committee members, with some of
them - apparently led by Juan Vazquez - pressing for
representation by the Teamsters and actually inviting
Teamsters Local 806 representatives (Colagna and Gon-
zales) to join the meeting later , in view of Respondent's
apparent unwillingness to recognize or deal with District 65
(or any other union on the scene). According to Ms.
Pastrana, 5 dissidents out of the 12 committee members -
Juan Vazquez, Eddie Sanabria, Joaquin (Alex) Ocana,
Dolores Diaz, and another (Modesto Zapata) - thereupon
disassociated themselves from District 65, but, nevertheless,
the District 65 employees organizing committee continued
to exist and function.
General Counsel's witnesses Fernando Aguirre, Nelson
Cansing, Luz Fabiola Diaz, and Mercedes Rivera in
material essence credibly support Ms. Pastrana's account of
the split off of Juan Vazquez and at the same time or soon
21 In a prehearing affidavit of January 4, 1974, Vazquez swore that "about
80 percent of the employees . . . . signed ] for District 65" (G.C. Exh. 129).
499
thereafter a few other District 65 employees organizing
committee members (i.e., Eddie Sanabria, Joaquin Ocana,
and Dolores Diaz) from that committee at the November
16 committee meeting at Ms. Pastrana 's home and the new
allegiance of those four to Teamsters Local 806; and the
continued existence of the District 65 employees organizing
committee thereafter in November and December . Aguirre
swore that the November 16 occasion was the first
introduction of Teamsters Local 806 into the picture, and
that on his automobile ride with Juan Vazquez, Joaquin
Ocana, and Nelson Causing to that meeting , Juan Vazquez
- later to become the kingpin of the activity resulting in
Respondent's recognition (on November 30) of Teamsters
Local 806 - said that "he [Vazquez ] had a meeting with
the big ones in the company, with the bosses. That he
[Vazquez ] was told to have a meeting with the committee so
a third union was searched for because they didn't want to
accept the 888. . . . Neither they wanted to accept the
[District] 65. And besides that Mr. [General Manager]
Feinberg had told him that the company was willing to
spend whatever money was necessary so the [District] 65
wouldn't get in." Further according to Aguirre - a highly
impressive witness, corroborated by Mercedes Rivera,
another impressive witness - when they arrived at the
November 16 meeting at Ms. Pastrana's home, Juan
Vazquez informed the group that he (Vazquez) had met
with the Company and that General Manager Feinberg had
told him that "to keep on fighting for the [District] 65 was
useless because they were not going to accept [it]. And to
look for another union because they were not going to use
the [Retail Clerks Local] 888 either," so that Vazquez was
prepared to invite the Teamsters - who were standing by
elsewhere - to attend the committee meeting. When the
other committee members indicated they were willing to
listen to the Teamsters representatives, Teamsters Local
806 Representatives Colagna and Gonzales were called in
and described that organization and what it hoped to
accomplish. Further, according to Aguirre, however, except
for Juan Vazquez the committee voted not to back
Teamsters Local 806 but to continue allegiance to Distribu-
tive Workers District 65.
There is also considerable testimony by numerous
General Counsel witnesses indicating that the wearing of
the rather large and distinctive, clearly recognizable colored
button of Distributive Workers District 65 was widespread
throughout the plant during the foregoing periods, and that
it continued to be displayed thereafter.
Concerning the foregoing, unit employee Juan Vazquez,
who had been one of the leaders of the drive to oust and
decertify Retail Clerks Local 888 as well as one of the
Distributive Workers District 65 employees organizing
committeemen, later to abandon that committee and to
sponsor introduction of Teamsters Local 806, in the main
essentially corroborated the testimony of District 65 Vice
President Mojica. Vazquez testified that from 250 to over
300 or from 65 to 80 percent of the unit employees had
signed union cards for District 65 by the end of May
1973; 21 that the District 65 May or June shop meeting at
the Plaza Hotel, at which District 65 Vice President Mojica
Vazquez likewise swore in his July 19, 1974, affidavit presented to the U.S.
District Court for the District of New Jersey, in opposition to an application
(Continued)
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
informed the employees he had requested recognition from
Respondent to bargain for them, was attended by around
275 employees; that he personally participated in District
65 employees organizing committee meetings with officials
of that Union as late as August 1973, although later
meetings were also held or called ; and that he still
functioned as a member of the District 65 employees
organizing committee in September and October. It was
Vazquez who, according to his testimony, invited Team-
sters Local 806 representatives to attend the aforedescribed
employees' District 65 employees organizing committee
meeting at the Pastrana home on November 16 - in his
prehearing affidavit (likewise in his July 19, 1974, affidavit
to the U.S. District Court, G.C. Exh. 130), Vazquez himself
speaks of that November 16 meeting as a "committee for
District 65 . . . . meeting . . . . at Concepcion's [i.e.,
Concepcion Pastrana's] house" which he participated in
(G.C. Exh. 129) - after he and Ms. Pastrana had been
refused permission by Personnel Manager Morales to hold
a I-hour District 65 employees organizing committee
meeting in the plant cafeteria prior to 4:30. As of this time
(November 16), Vazquez testified, Respondent had to
Vazquez's knowledge not declined to recognize District 65
but had merely taken no action one way or the other on
that Union's recognitional request.
Vazquez informed the District 65 employees organizing
committee at the November 16 meeting in the Pastrana
home that no benefits could be obtained from the Company
through District 65 without waiting until the "decertifica-
tion year" had expired (i.e., May 1974), but that Teamsters
Local 806 had indicated to him that it might gain earlier
recognition. After the Local 806 officials, whom Vazquez
then called in, oriented the committee members concerning
their organization,22 the existing situation at the plant was,
according to Vazquez, discussed by the committee in terms
of the seeming stalemate of representation resulting from
the Company's failure to have anything to do with District
65. Then, further according to Vazquez - an evasive and at
times truculent witness consistently exhibiting discrediting
demeanor behaviorisms, whose testimony is punctuated
with inconsistencies, and who displayed what appeared to
be intense hostility toward District 65 and its employee
adherents, coupled with determination to justify his own
partiality and personal role as the employee linchpin for
Teamsters Local 806 - the committee members thereupon,
by the Board 's Regional Director for a temporary injunction under Sec. 10(I)
of the Act, that "We got about 80 percent of the employees to sign for
District 65" (G.C. Exh. 130). Vazquez further swore that thereafter "[Retail
Clerks I Local 888 got many cards signed up" (id).
22 According to Vazquez , the Teamsters Local 806 representatives -
President Anthony Calagna and his assistant John Gonzalez asserted that
they would attempt to obtain a contract from Respondent ; but Vazquez was
allegedly unable to remember whether the Teamsters representatives were
asked how they proposed to do so when District 65 had failed . According to
Vazquez' aide , Ocana, Calagna and Gonzalez indicated they thought it
should not be "too difficult" to secure a contract, and no committee member
raised the question of why not in view of District 65's total failure to even
obtain a meeting Ocana added that Calagna indicated Local 806 would be
willing to do "anything" to gain recognition , including calling a strike -
even though then unlawful under the Act, as the employees had been advised
by District 65 acting on advice of its counsel.
23 Irma Avellaneda , whose employment termination by the Company is
discussed below, II,B,3.
24 Supported only by Vazquez's loyal lieutenant Joaquin Ocana, whose
at the behest of Concepcion Pastrana, with a single
exception 23 agreed to request District 65 to withdraw in
favor of Teamsters. I reject the latter testimony of
Vazquez24 as an utterly incredible, sheer fabrication, not
only because of demeanor observations and his general
quality as a witness , but also because it is wholly at odds
with contrary testimony of numerous other witnesses (as
above described) who attended that meeting,25 and because
it is utterly inconsistent with what in fact took place
thereafter - namely, the continued substantial organiza-
tional activities of District 65 and the employees organizing
committee thereof. Soon after delivering this testimony,
Vazquez also testified that on November 19 - the Monday
following the described November 16 (Friday) District 65
employees organizing committee meeting at the Pastrana
home - he informed Teamsters Local 806 Representative
Gonzalez that the committee was split, half for Teamsters
Local 806 and half for Teamsters Local 804, with Vazquez
in favor of Local 806; and that later that evening Vazquez
was provided by Gonzalez with a supply of Local 806
membership/bargaining authorizational cards, which he
thereupon utilized for organizational purposes commenc-
ing on the following day (November 20), as will be
recounted below, with himself (Vazquez), Eddie Sanabria,
Joaquin Ocana, Dolores Diaz, Carmen Esquilin, and
Modesto Zapata26 acting as the self-designated Local 806
organizing committee while at the same time not resigning
from the District 65 employees organizing committee.
Asked whether at this time (November 20) if Respondent
had recognized Distributive Workers District 65 upon the
basis of the more than 300 membership/representational
designation cards it held, he (Vazquez) would have
continued with efforts to solicit signatures on Teamsters
Local 806 cards, Vazquez's reply was, "No, because I was
the one who brought in [District] 65."
It is reasonably clear27 even from the testimony of
Vazquez - hardly in any sense favorable or friendly
toward District 65 - that the organizational activities of
District 65 carried forward through the summer and fall of
1973, into at least November, when according to his own
admission he still remained a member of and participated
in the described meeting of its employees organizing
committee at the Pastrana home. And Vazquez also
testimony in this request I likewise do not credit. In so testifying, however,
Ocana conceded that no consideration was given to ascertaining the desires
of the unit employees (perhaps as many as around 350) who had signed
membership/bargaining authonzational designation cards for District 65.
25 It is also inconsistent with Vazquez's own previous statement in his
preheanng affidavit of January 4, 1974 , wherein he swore that at this meeting
at the Pastrana home , "nothing was really decided" (G.C. Exh. 129).
Vazquez swore precisely the same thing in his July 19,1974, affidavit to the
U.S. District Court (G.C. Exh. 130). 1 can hardly regard Vazquez as a
credible witness in view of these , as well as other, contradictions under oath.
26 According to Vazquez, Zapata subsequently disassociated himself
from the Local 806 "Comnuttee."
27 The expression "reasonably clear" is used in view of Vazquez's
constant evasiveness , hedging, testimonial convolutions, and backing and
filling, weighed carefully in the frame of reference of his open partiality
toward Teamsters Local 806 and his hostility toward Distributive Workers
District 65, as well as his seeming temperamental bent toward equivocation
and even ill-tempered querulousness as demonstrated during a protracted
performance on the witness stand.
HARTZ MOUNTAIN CORP. 501
referred to the organizational meetings held by District 65
for unit employees in May, June, July, and August 2s
Vazquez himself confirms a July 29 confrontation of the
District 65 employees organizing committee (including
himself, at that time) with Kaye and Feinberg on the
subject of union recognition. According to Vazquez, these
two officials of Respondent thereupon asked which Union
they had. When they mentioned District 65 (and also,
according to Vazquez, Teamsters - although the latter
concededly was nowhere near the scene until months later),
according to Vazquez the company officials wrote the
names down and Vice President Kaye asserted, "[We have]
a year to study that" because "according to the law they did
not have to accept any union for a year [unless ] they [the
Employer] wanted to," and that Kaye also remarked that
"there was a fight between different positions of the
workers, those for 65 and those for the 888, and that
someday there would be some blood." "Possibly" as late as
August, according to Vazquez, Respondent General Man-
ager Feinberg "knew we were supporting [District] 65"
from meetings Ms. Pastrana and Vazquez had with Fein-
berg on the subject of providing some medical benefits to
the employees.30 According to Vazquez, Feinberg repeated-
ly cautioned him to "Look for a good union" - with no
mention of District 65, even though it had formally
requested and continued to seek recognition with an offer
to establish its majority status through its credentials from
the employees. Vazquez also concedes that not only did he
sign, but that he himself also obtained other unit employ-
ees' signatures on the "petition" with 213 signatures (G.C.
Exh. 17) opposing the return of Local 888 and confirming
the employees' loyalty to District 65 - the "petition" above
shown to have been presented to District 65 officials at the
28 In his characteristic fashion , after sweanng to such a meeting or
meetings in August , Vazquez later attempted to backtrack concerning
August , claiming he was unsure or could not really recall . After observing
him carefully during the unusually lengthy opportunity afforded mein this
case because of the extent of his testimony , and weighing his testimony in the
counterweighed scales of his interests and hostilities, his testimonial
arrogance (for example, at one point he leveled at cross-examining Govern-
ment counsel the sarcastic sally, "In spite of the fact that they are lawyers, the
questions do not come out as they should"), and his contrastingly excellent
claimed recollective capacities in those areas where his preferences and
supposed interests lie, I greatly doubt he could not recall these meetings. In
any event , however, District 65 's August - as well as later - organizational
activities are amply established through corroborated credited testimony of
numerous other witnesses, as has been shown . As a matter of fact, on cross-
examination Vazquez conceded attending an August meeting of the Distract
65 employees organizing committee , as well as an August District 65 general
organizational meeting for shop employees , and further conceded that
District 65 general organizational meetings for the unit employees were
called even after November , although he personally did not attend them.
29 Once again, Vazquez later equivocated concerning the date, to the
extent of even swearing on the witness stand that he "never said July" on the
witness stand , then lashing out haughtily with , "I do not have an obligation
to remember a date."
30 In characteristic fashion , Vazquez later denied ever discussing with the
Company a need for a medical plan ; but this time he added that at one
meeting General Manager Feinberg promised that the Company would
provide raises for deserving employees "by steps." Apparently he was one of
the deserving employees , since - as he concedes - in January 1974, after
the advent and recognition of Teamsters Local 806 with Vazquez's active
protagonism , under circumstances to be shown , Vazquez received a wage
increase greater by 50 cents per hour on top of the 35 cents per hour required
by the Local 806 contract with Respondent . So did his fellow abandoners of
the District 65 employees organizing committee who joined him in bringing
Teamsters Local 806 on the scene - Eddie Sanabna and Joaquin Ocana, as
well as Emerson Peneherera.
August 2 or September 4 meeting of unit employees.31 And
Vazquez admits that during his attempts in late November
to solicit employees to sign cards for Teamsters Local 806,
they indicated to him that they still supported District 65.
Vazquez aide Joaquin Ocana32 - like Vazquez, called as
a witness by Teamsters Local 806, and somewhat on the
order of Vazquez an evasive, unresponsive witness belliger-
ently hostile to District 65 - also testified concerning the
foregoing, as well as on other matters to be discussed. He
confirmed that the employees' District 65 employees
organizing committee (including himself as a member)
enlisted around 300 unit employees into membership in and
bargaining designational ,card-signing for District 65, and
that large mass meetings of employees were held by that
Union in May.and June, with smaller meetings in July and
August. However, according to Ocana, collections to
participate in the District 65 medical plan were made even
in September by Vazquez as well as Concepcion Pastrana.33
And Ocana conceded on cross-examination that he, togeth-
er with Vazquez and Concepcion Pastrana, participated in
at least two meetings of the District 65 employees orga-
nizing committee with Jersey City plant general manager,
Feinberg, and Personnel Manager Morales, in August,
September, or October, concerning a "medical plan" as
well as a "raise" for employees - without result, Feinberg
indicating that no election could take place for a year.34
Emerson Peneherera, likewise put forward as a witness by
Teamsters Local 806 and a protagonist of its November
1973 card-signing operation, also demonstrated himself to
be not only highly partial to that Union and hostile to
District 65, but also a somewhat truculent testifier. He
testified on direct examination that he personally observed
organizational solicitation activities on behalf of Distribu-
31 Although Vazquez asserts that these signatures were obtained in June,
the "petition" speaks of the "return" of Local 888 - an attempted "return"
which Vazquez himself testified took place in July through October and even
in November, when, also according to Vazquez, since employees were (in
November) "giving many signatures to the [Local 1 888" he decided to
contact Teamsters Local 806 and to introduce it to the District 65 employees
organizing committee meeting on November 16 at the Fastrana home.
Furthermore , as shown above (II,A,I), the bulk of the over 300 Local 888
cards are in July and August , with an additional almost 70 in November.
32 Also known as Alex Bertran (social security card) and as Alejandro
Ocana Bertran (passport), Bertran being (according to his testimony) his
mother's surname.
33 Ocana's testimony that as to District 65 organizational activities in
September and October there was "no activity .... that could be seen
. a complete silence" and that by that time "[District] 65 had
disappeared," is simply untrue.
34 Also on cross-examination, however, Ocana asserted that he withdrew
from the District 65 employees organizing committee in or around Septem
-ber (i.e., allegedly considerably before the November 16meeting at the
Pastrana home). Shown the "petition" with 213 signatures (G.C. Exh. 17)
opposing return of Local 888 and pledging continued loyalty to District 65 -
delivered, as shown above, to District 65 officials at the August 2 or
September 4 organizational meeting of District 65 - Ocana purported to be
unable to recall whether he signed it (although he was a member of the
District 65 organizing committee ; his name appears on page 4 of that
"petition," the same page on which Juan Vazquez 's name appears); and
claimed that its purpose was in June to counteract Local 888 's drive to
return , which Ocana had previously sworn was in October. On cross-
examination, Ocana conceded he never announced his resignation from the
District 65 employees organizing committee , but that he merely indicated
this to Vazquez and others who were "with me," as well as mentioning to
Concepcion Pastrana in August that he was resigning . Ocana never wrote to
District 65 to cancel or withdraw his membership in that Union, or for the
return of dues or medical plan prepayment.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Live Workers District 65 as late as August 1973 , although he
never signed a card for that Union ; and also that when
Retail Clerks Local 888 was "trying to come back" during
September or October to the very "end of October," he
approached Vazquez , Ocana and some others suggested
that they obtain another union in which mechanics like
himself (there are only about 8 such - all males - out of a
total male and female work force of over 400) could be
represented or better represented , suggesting the Teamsters.
On cross-examination , Peneherera conceded that he also
personally observed District 65 organizational activity as
late as October not only by its organizing committee
members but also by that Union 's official, Julio Mojica -
indeed, by the latter, even in November . And Peneherera
conceded that the first mention he heard of Teamsters
Local 806 - for which he immediately participated in
"card" solicitation - was during the third week of
November, 4 days after a meeting of the District 65
employees organizing committee in the Pastrana home.
Anthony Calagna, president of Teamsters Local 806, also
testified as a witness for that Union . Calagna asserts that,
when he was approached by Vazquez in November on the
question of representing Respondent 's Jersey City plant
workers, Vazquez told him that "he" wanted a union for the
place where he worked, and spelled out for Calagna the
circumstances of the Retail Clerks Local 888 decertification
as well as the "inability" of Distributive Workers District 65
to gain the Employer's approval for recognition 35 Subse-
quently, Calagna was summoned to the November 16
meeting at the Pastrana home which has already been
described . In contrast to the testimony of Vazquez and
Ocana, however, Calagna swears that at that meeting he
was indeed asked why or how Teamsters Local 806 could
gain recognition from Respondent when District 65 had
failed in that attempt ; and that he replied that his Union
was the biggest union in the world , controlling all deliveries,
and that this was a "good equalizer ." More will be said
concerning this and his Union's immediately successful
recognitional request below, in connection with the subject
of Respondent 's recognition and contracting with Team-
sters Local 806 as the exclusive representative of its
employees, under the circumstances described , in rapid fire
order and without awaiting a Board election or arranging
for any variety of non-Board election , and without verifica-
tion of the number or authenticity of the "cards" presented
or the circumstances under which they were procured.
There was also testimony concerning the foregoing by
members of Respondent Employer's management team.
This testimony does not bear out the assertion of its counsel
35 Although in this proceeding Calagna swore that he did not supply
Vazquez with any Teamsters Local 806 membership/bargaining authonza-
tional designation cards at this time, in an affidavit sworn to on July 19, 1974,
submtted to the U.S. District Court for the District of New Jersey in
opposition to an application by the Board 's Regional Director for a
temporary injunction pursuant to Sec . 10(1) of the Act, Calagna swore that he
didgive Vazquez a large batch of Local 806 cards at this time
ss Confronted on cross -examination with his preheanng affidavit sworn
to January 20, 1974, after reaffirming his statement therein that "I [Kaye]
was not subsequently [i.e., after receipt of District 65's letter requesting
recognition ] contacted by anyone from District 65 ," Kaye conceded that
District 65 Vice President Mojica did in fact telephone him around May 26-
28 but that he did not return Mojica s call. Kaye further explained that he
omitted stating in that affidavit that he had been informed by Jersey City
in his opening statement that in the "midsummer" and
"fall" of 1973, except for "occasional vague rumor of
chatting or gossip in the plant," Respondent had "no
knowledge of the so-called interest , support and ongoing
campaign" of Distributive Workers District 65.
Testifying as Respondent's witness, its vice president for
manufacturing and distribution , Gilbert Kaye - who has
been associated with the Company since its formation by
merger in 1973, as well as with its predecessor(s) since 1965
- stated that he has total responsibility for Respondent's
Jersey City plant (as well as its Harrison and Bloomfield,
New Jersey, plants), including industrial relations, with the
plant and/or general manager there reporting directly to
him. What is now and since late 1966 or early 1967 the
"Jersey City" plant was formerly located in Bloomfield and
previously in Harrison , New Jersey, and before that in
Brooklyn, New York. For the past 20 years or so employees
of that facility had been represented by Retail Clerks Local
888 until its decertification in May 1973 as has already been
recounted . According to Kaye, within about 10 days after
the decertification of Local 888 and prior to Respondent's
receipt of any recognitional request from District 65, he met
with a group of employees (at the employees' request) in the
office of then Jersey City Plant Manager Petrera . Although
some employees expressed support for District 65, others
wanted Local 888 back ; others favored "a Teamsters
organization"; still others "were willing to go it alone" with
no union. The employees asked Kaye if the Company
would recognize a union of the employees ' choice. Kaye
answered that the Company was not bound to recognize
any union for 1 year following the decertification election.
Juan Vazquez (and his son Frank Vazquez) indicated that
District 65 had been approached with a view toward
representing the employees. Apparently Kaye had, accord-
ing to his testimony, from March through May 1973
including a 2-week period following the May 11 decertifica-
tion election, been independently advised by various plant
employees during plant visits, that some desired no union at
all but favored dealing with the Company directly, from all
of which Kaye gleaned that there was a broad spectrum of
opinion among the unit employees regarding their represen-
tation desires . Kaye concedes that he received District 65's
first written (recognition requesti (G.C. Exhs . 4 and 5) during
the last week of May 1973 and that the Company never
responded to it in writing or orally; Kaye also concedes that
the signer of those letters, Julio Mojica, telephoned him a
few days later and left the message for Kaye to call him
back, but that Kaye never did so36
Plant Manager Petrera that Petrera had been visited personally by Mopca
seeking a meeting with Kaye , because he (Kaye) did not "recall" telling that
to the Board's Regional Office agent with whom he discussed the matter.
Confronted thereupon with his July 22, 1974 , affidavit submitted to Chief
United States District Judge Whipple in opposition to the Sec. 10(1)
temporary injunction application of the Regional Director, wherein Kaye
swore that he did indeed receive "one or two" telephone calls from Mojica,
Kaye swore herein that it was "one only"; and, conceding that he knew the
purpose of Mojica 's visit to Petrera at the end of May was to secure
recognition of District 65, Kaye explained that he omitted to mention this in
his affidavit to Chief Judge Whipple through an "oversight ." In view of these
and other inconsistencies , lapses , alleged recollective failures, or carelessness
under oath , I am unable to extend full faith and credit to various aspects of
Kaye's testimony , particularly considering his interest and other circum-
HARTZ MOUNTAIN CORP. 503
While asserting that the Company's failure to respond to
District 65 was in pursuance of deliberate company policy,
Kaye concedes that the Company did not know one way or
the other whether the asserted District 65 claim of majority
status (G.C. Exhs. 4 and 5) was false or genuine. It is
necessary to weigh Kaye's assertion of company policy in
this regard in connection with its contrasting reaction to the
Teamsters Local 806 recognitional demand following that
Union's collection of cards from Respondent's employees
under circumstances to be described. Kaye further testified
that on or about July 10, 12, and 18 he was informed by
company counsel that counsel had (on the Company's
behalf) orally declined recognition of District 65; and that
around the same time company counsel informed him that
District 65 Counsel Eisner was again requesting recognition
of District 65, in response to which Kaye indicated that
there was no change in the company position and that the
Company would not recognize District 65.37
Kaye admitted on cross-examination that he was aware,
from both Jersey City Plant General Manager Feinberg
and Plant Manager Petrera, from May 23 to July 10, that
District 65 was engaged in organizational activity among
the employees there, including solicitation outside of the
plant, card-signing by employees, and offplant meetings of
employees at a nearby hotel. Also on cross-examination in
seeming contrast to his earlier testimony,38 Kaye admitted
that Petrera informed him that Mojica and an associate had
visited Petrera at the plant and, after introducing them-
selves, requested they be allowed to speak to a corporate
officer to discuss representation, and that Petrera had
supplied them with Kaye' s name . Kaye somewhat crypti-
cally testified that if, when company counsel informed him
in July of the renewed request for recognition from District
65 Counsel Eisner, District 65 represented a majority of the
employees, "then this would have constituted a crystalliza-
tion of employee sentiment which did not exist in late May,
1973" - but at the same time Kaye conceded that he was
not interested in seeing the District 65 cards to determine
whether in fact that Union represented a majority of the
employees.39
Kaye testified that he was aware - from Petrera,
Feinberg, and leaflets - that District 65 was conducting
general organizational meetings for employees in June and
July, and even in early August (Resp. Exh. 45 and C.P.
Exhs. 8A and 8B - an August 2, 1973, leaflet and letter
,stances detailed below. Thus, for example, I cannot credit his sweeping
denial, during cross -examination , of awareness of District 65 card solicita-
tion before receiving its recognitionsl request at the end of May; nor that
Jersey City Plant Manager Petrera told him that he (Petrera - who, for
undisclosed reasons, was not produced to testify) was likewise unaware of it;
nor that Petrera failed to inform him about Mojica's visit. Such demals
overtax my credulity and cannot but reflect adversely on their author's
overall credibility.
37 Kaye first testified he told company counsel that the Company would
not recognize "District 65 or any other union," but thereafter modified this
to limit it to "District 65."
38 Cf. fn. 36, supra.
39 It will be recalled that Distract 65 had expressly offered Respondent to
demonstrate its majority status through cards, including before the Federal
Mediation and Conciliation Service (G.C. Exhs. 4 and 5) - an offer which
continued to meet with stony silence from Respondent (or refusal from its
counsel), in stark contrast to Respondent's later speedy recognition of
Teamsters Local 806 without any cardcheck of that nature, as will be seen.
from District 65, produced by Respondent from a file of
District 65 literature maintained by Respondent); that
District 65 was sponsoring a contributory health-medical
plan in August, and had conducted a group employees'
meeting thereon; and that General Manager Feinberg had
alerted him to employee interest in District 65 in August.
Kaye further testified that he was also aware that from June
through September a group of employees was meeting with
Feinberg, Petrera, and Morales concerning "conditions at
the plant," including the absence of health-medical benefits
and "merit" wage increases ; but Kaye denies awareness
that the group - most if not all of whom were members of
the District 65 employees organizing committee - spoke
for District 654°
During subsequent cross-examination, Kaye acknowl-
edged that he was aware up to the very time of Respon-
dent's recognition of Teamsters Local 806 (November 30,
1973) of the interest and activities of a group of employees
in and for District 65,41 with ongoing card-solicitation at
least until August. Finally, Kaye asserted that as of
November 15 he was unaware of the interest of any
employees in any union other than District 65.42 Kaye also
insisted that at no time did he discuss the matter of the
undesirability or possible undesirability of District 65 as
bargaining representative of the Jersey City plant employ-
ees - a statement which I regard as palpably incredible on
its face.
James William O'Connor, Respondent's vice president
for engineering and labor relations, conceded on cross-
examination that he was aware in June or July, from his
colleague Kaye (also a vice president, with direct responsi-
bility over the Jersey City plant, among other plants), that
District 65 - as well as other unions - were engaged in an
organizational drive at the Jersey City plant; and that he
also knew in August, September, October, and "through
November" from "pipelines in the plant" and Plant
Manager Petrera that District 65 was engaged in an
organizational drive, including card solicitation, outside of
the plant, and also employees' organizational meetings.
O'Connor reiterated this on further cross-examination and,
amplifying on it, additionally testified that through at least
mid-November he knew through Plant Manager Petrera
that various unions - including Retail Clerks Local 888
and Distributive Workers District 65 - were, simulta-
neously with Teamsters Local 806, conducting organiza-
40 Under the circumstances , I would have extreme difficulty in crediting
this denial or equivocation, whichever it is. Kaye's carefully chosen
testimony that he personally never observed any District 65 organizational
activities subsequent to August 2 at best cannot be taken other than literally;
even so it must be taken with extreme reserve , and certainly not as equivalent
to a statement that Kaye was unaware or uninformed of such activity. Upon
the record as a whole, I reject Kaye's denial - if such it is or is intended to be
- especially because of the credited testimony of Jersey City Plant General
Manager Feinberg that "I tell you, he [Kaye I saw it" in at least September
and October if not also in November and December , as will be shown below.
41 1 reject Kaye's later superadded equivocation or assertion that he did
not know they were working "specifically" on behalf of District 65.
42 But cf. II,A,1, supra concerning the organizational activities of Retail
Clerks Local 888, including its amassing of almost 70 additional member-
ship/bargaining authorizational designation cards in November, and the
admissions by other of Respondent's officials (Vice President O'Connor,
General Manager Feinberg, and by ascription without denial by Plant
Manager Petrera) of knowledge as well as upward reporting thereof.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional drives and attempting to gain recognition as bargain-
ing representative for the employees , and that some
employees did not desire any union at all ; and that he
generally passed such information upward to his superior,
Executive Vice President Lovitz . The foregoing is in
contrast to O'Connor's statement in his July 22, 1974,
affidavit to the district court that "I had not been aware of
any rival union activity or claim [i .e., other than by
Teamsters Local 806] for quite some time , at least since
August" (G.C. Exh. 143).
We now proceed to the testimony of Respondent's
managerial officials Feinberg and Morales concerning their
knowledge of District 65's organizational activities and
their upward reporting thereof.
Respondent Jersey City Plant General Manager Morris
Feinberg first entered its employ and was assigned as
general manager there on July 16, 1973 , remaining in its
employ in that capacity until June 28 , 1974.43 As general
manager of the Jersey City plant, Feinberg functioned
directly under and reported directly to Respondent Vice
President Kaye who was based at Respondent 's Harrison
headquarters . Efrain Morales, personnel manager of the
Jersey City plant, functioned under Feinberg.
Since Feinberg was not at the Jersey City plant until July
16, 1973, he had no direct personal knowledge of District
65's activities there prior to that date44 However, as he
testified , when or soon after he started Kaye told him that
various unions including District 65 were attempting to
organize the plant . Feinberg thereafter learned from
subordinate supervisors and rank-and-file employees in late
July and early August that , although opinion was divided,
employee interest existed in District 65 (as well as in other
unions). He subsequently met with different groups or
"committees" of employees, with "no one committee
[speaking] for all ." In July and August , he was advised that
District 65 representatives or spokesmen were visiting the
"perimeter" of the plant ; and after Labor Day and
throughout September he received reports concerning
District 65's organizing activities outside of the plant,
including discussions with employees as they were leaving
the plant . Although Feinberg seldom left the plant during
lunchtime , on such occasions as he did he himself observed
a person he knew to be a District 65 organizer (Tito Ortiz)
in a car parked outside the plant, with others there with
him, from time to time through the end of 1973.
43 Feinberg was no longer in Respondent's employ when he testified in
this proceeding. In appraising his credibility, I have taken into account that
fact and his consequent apparent lack of direct interest because of his
disassociation (other than some pecuniary continuity) with Respondent, as
well as his testimonial demeanor , which impressed me generally favorably
with limitations as shown, arising in part from conflicts arising out of
affidavits he signed for the district court.
14 His predecessor (to the extent that he can be said to have had one, since
he was the first to fill the position of general manager), Petrera (plant
manager, who assumed a role secondary to Feinberg with the latter's advent)
was not called by Respondent to testify
4' This incident is unmentioned , and most of these circumstances are also
unmentioned or greatly muted, in Feinberg's July 22, 1974, affidavit to the
district court (G.C. Exh. 145).
46 This, again, is in marked contrast to the carefully worded generaliza-
tions, indicative of the contrary, in Feinberg's July 22, 1974, affidavit.
17 The foregoing far more explicitly factual testimony by Feinberg may
be contrasted with the following seemingly carefully drafted generalized
wording in his July 22, 1974, affidavit: "I could detect no pronounced surge
Feinberg further testified, with precision and decisive
firmness, that he was aware of employee interest in and
organizing activities by and on behalf of District 65 from
July to December 1973 - including handbilling outside of
the plant, as late as October, November, and December,
and also by Retail Clerks Local 888 - its official Lucas had
introduced himself to Feinberg outside of the plant45 -
from August through October. Feinberg further swore that
he reported all of this activity (September, October,
November, and December) to his superior Kaye, adding
that "I tell you, he [Kaye] saw it" himself. Feinberg also
testified that the District 65's organizing activities were
greater in September and October than before that .46
Finally, Feinberg swore that he was aware of employee
interest in representation by District 65 as late as Novem-
ber 15 and perhaps later, and that he saw District 65
buttons worn in the plant in "heavy concentration" in
November and December 1973.47 I credit this testimony of
Morris Feinberg, Respondent's own witness.
Respondent's Jersey City plant personnel manager,
Efrain Morales, likewise conceded knowledge of Distribu-
tive Workers District 65 (as well as Retail Clerks Local 888)
organizing activities at the plant prior to December 3, 1973.
Since Morales only came to the plant as personnel manager
near the end of August (August 26 or 27, according to his
testimony), his observation of those activities must presum-
ably have been in the period from then on - i.e., during
approximately September through November (and later) 48
He conceded that he saw and read organizing literature and
announcements of meetings for District 65 between August
1 and December 31, 1973.49
Upon the record presented, it is clear and I find that
Distributive Workers District 65 was, to the knowledge of
Respondent, actively engaged in substantial union organi-
zational activity among Respondent's bargaining unit
employees from mid-May through at least November 1973.
3. Teamsters Local 806 organizational campaign
and Respondent's recognition of and execution of
contracts therewith
We proceed now to a review of the events resulting in the
recognition of Teamsters Local 806 by Respondent as the
exclusive collective-bargaining representative of its Jersey
City unit employees, and the contracts entered into
between Respondent and that Union.
of substantial interest in any particular union ." Language of this type must
yield to factual testimony under observed cross-examination at a hearing.
48 I find great difficulty in crediting large segments of the testimony of
Morales, who impressed me as a loyal servitor anxious to outdo himself on
behalf of his employer - to the extent , for example, of swearing that he
"doles ] not think" he saw any District 65 buttons in the plant prior to
December 3, 1973, that he was unaware that Concepcion Pastrana was
interested in District 65 but was under the impression that she was in favor of
Teamsters Local 806 on November 30, and that nobody indicated to him at
any time prior to December 3 that District 65 was attempting to organize the
plant - statements so palpably incredible that they border on the absurd.
49 Concerning these , Morales testified in his characteristically lethargical-
ly evasive fashion that (although personnel manager) he kept no file on these
and could "not recall" whether he turned these over to anybody although he
may have told Feinberg about some of them . He then tossed in the further
qualification that he was unable to recall which union or unions were
involved since a number of unions were competing for the employees'
loyalty.
HARTZ MOUNTAIN CORP. 505
a. November 16-30 organizational activities
Following the District 65 employees organizing commit-
tee meeting at the Pastrana home on November 16, 1973,
which has been described, Vazquez, Ocana, Sanabria (and
perhaps another or other adherents) broke off or separated
themselves from the employees committee and began
actively soliciting on behalf of Teamsters Local 806, having
obtained membership/bargaining authorizational designa-
tion cards from that Union. This activity commenced on
Monday, November 19. As of November 30 - a period of
about 11 days, with an intervening weekend and a holiday,
Teamsters Local 806 secured from Respondent Employer a
signed recognition agreement (G.C. Exh. 2). The nature of
the activities - including employer support, aid, and
assistance - which achieved this result in such short order,
in contrast to Respondent's continued "stonewalling" with
regard to Distributive Workers District 65 notwithstanding
that Union's known organizational activities and substan-
tial employee interest therein and its proffer to demonstrate
its majority strength among the unit employees (and also
Respondent's ignoring of its strong employee following in
Retail Clerks Local 888), will now be shown.
Various bargaining unit employees, called by General
Counsel as witnesses, and generally demonstrating a high
order of testimonial credibility under strong and able cross-
examination, testified - almost all in Spanish through an
interpreter - concerning the circumstances under which
they or fellow employees were solicited, importuned,
invited, or induced to sign membership/bargaining authori-
zational designation cards for Teamsters Local 806 during
the brief final week or so of November 1973 preceding
Respondent's prompt recognition of that Union as their
exclusive bargaining representative.
Fernando Aguirre, a machine operator in Respondent's
employ since early May 1972, who was terminated by
Respondent without assignment of reason during the
pendency of this hearing,50 testified that following the
decertification of Retail Clerks Local 888 he became active
on behalf of Distributive Workers District 65 as a member
of its employees organizing committee, together with
Concepcion Pastrana, Nelson Cansing, Modesto Zapata,
Juan Vazquez, Joaquin Ocana, Eddie Sanabria, and others
- a committee which, Aguirre confirms, was still intact at
the time of its described November 16 meeting at the
Pastrana home , when or soon after which a minority
consisting of Vazquez, Ocana, Sanabria, and Ms. Diaz split
away from it. Commencing the week after the November 16
District 65 employees organizing committee meeting,
Aguirre observed Local 806 cards being distributed on the
first floor inside the plant during worktime, to employees
while at work, principally by Juan Vazquez, Joaquin
Ocana, and Eddie Sanabria. Aguirre observed Vazquez
engaged in this activity openly and without hindrance, from
50 Aguirre's termination is discussed infra, II,B,3.
51 Although Feinberg denies this episode , on comparative demeanor
observations in this aspect and the record as a whole I credit Aguirre, whose
testimony, as shown below, is firmly corroborated by Nelson Cansing,
another impressively credible witness.
52 Although Vazquez to a degree disputed Algann 's account of his card-
signing for Local 806 , I credit Algarm 's version. Vazquez' aide Peneherera
swore he is positive it was he (Peneherera ) who gave the Local 806 card to
November 17 to the end of November on an estimated 10 to
15 occasions, on his and other employees' worktime; during
this period from November 17 on, Vazquez appeared to be
devoting his full time to this activity, openly and without
employer objection or interruption, at the same time
without hindrance from any of Respondent's supervisors
openly downgrading District 65 to the employees whom he
solicited for affiliation with Teamsters Local 806. At times
Aguirre observed Vazquez and Ocana together in this
activity. As for Ocana, he also was observed by Aguirre on
numerous occasions during the same period , engaged in the
same activity as Vazquez, also openly and without supervi-
sory hindrance during worktime, and also seemingly at
times engaged exclusively in this activity. Aguirre likewise
observed Sanabria engaged in the same activity on a
number of occasions (estimated at four to eight), during
worktime, spending as long as 10-15 minutes with a
working employee in enlisting him or her into signing a
Local 806 card. Around November 24 or 25, Aguirre (in the
company of fellow employee Nelson Cansing - who, as
shown below, corroborates Aguirre) was told by General
Manager Feinberg in the plant that he (Aguirre) was a
"good worker" and that Feinberg "wouldn't like having to
fire me [Aguirre ] if I didn't sign the card .... If any of the
employees who were working for 806 came to offer me a
card, to have it signed, because that union was going in." 51
Felix Algarin, an order picker in Respondent's employ
since June 1, 1973, testified that while he was at work on
November 21, 1973, he was approached by Juan Vazquez,
who handed him a blank Teamsters Local 806 card and
told him that "by signing those cards he [Vazquez] would
go and speak to that union" ; but, according to Algarin, to
his surprise "it didn't happen that way" - instead, "all of a
sudden the union was inside." Algarin further swore that
another reason why he signed this card was that a day or
two before Vazquez handed it to him, Alex Ocana, in the
presence of fellow employee Francisco Altamirano, had
warned him that those who did not sign cards would be
fired when Local 806 came in and that Local 806 already
had a majority. Algarin had previously signed a card for
District 65 in or about July, which he never revoked or
withdrew.52
Rafael Bueno, employed by Respondent as an order
picker for a short period from late 1973 to early 1974 - and
whose alleged discriminatory discharge figures as part of
this proceeding and is discussed below - testified credibly
that he signed a Teamsters Local 806 card on November 21,
1973, at the behest of Vazquez, who presented the card to
Bueno - who can barely read English - and asserted to
Bueno that the Company had indicated it would recognize
Local 806 but would never recognize Local 888 or District
65. According to Bueno, although he wanted District 65 to
represent him, because of Vazquez 's assertion he signed the
Algann in the presence of Vazquez, and that he (Peneherera) or Vazquez
filled in the date on it , that the only thing said to Algarin was to read and
explain the card to him after cautioning him to "pay much attention ," and to
be careful in filling it out. After seeing Peneherera and Vazquez as they
testified, and comparing Algann's demeanor, I have grave difficulty in
picturing a scene such as described by Peneherera , whose general credibility
impressed me as wanting.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
card on the theory that Local 806 was the only union
realistically available in view of the Employer 's attitude.53
Milagros Cancel , another unit employee and a most
impressive witness, testified utterly persuasively that when
she applied for employment at the Jersey City plant in
November 1973 , after a brief wait in the waiting room of
the Personnel Office she was called into the office of
Personnel Manager Morales, who interviewed her in the
presence of two secretaries . After questioning Ms. Cancel
about her education and background and informing her as
to the rate of pay, Morales handed her an application form
together with a Teamsters Local 806 member-
ship/bargaining authorizational designation card and told
her to fill them out in the personnel office waiting room
immediately outside of his office . She did so. While she was
in that waiting room , Juan Vazquez came in and also told
her to fill out the card ; at the same time Vazquez handed
out Local 806 cards to the 15 or more other persons there
and told them to "fill them out" - all within the sight of
Morales, who was standing in the nearby doorway between
the waiting room and his office handing out employment
application forms . In the waiting room, after she had signed
and dated the Local 806 card (November 27, 1973), she
asked Morales what it was for ; when Morales started to
answer , Vazquez broke in and stated it was for the union
that was "representing" the employees and "give [you your]
benefits ." She thereupon handed the Local 806 card
together with her employment application to Morales, who
hired her and she started to work that day.54
Nelson Cansing, a hi-lo machine operator in Respon-
dent's employ for 4 years, confirming other employees'
credited testimony to the same effect , likewise testified
credibly that on various occasions toward the end of
November he observed Vazquez, Ocana , and Sanabria (as
well as others) soliciting unit employees , throughout the
downstairs portion of the plant, to sign Teamsters Local
33 Vazquez flatly denies Bueno 's version or that he ever even asked Bueno
to join or sign a card for Local 806. 1 have already indicated - and shall later
at greater length describe additional reasons for - my grave reservations
concerning Vazquez's credibility herein . I credit Bueno's version.
54 Testifying on this subject as Respondent's witness, Morales simply
denied giving Ms. Cancel a Local 806 card or asking her to sign it ; on cross-
examination the following day, however , he swore he was unable to "recall"
her job interview . Vazquez totally disputed the episode as recounted by Ms.
Cancel ; according to Vazquez, he told Ms . Cancel and her husband Wilfredo
Lorenzana in the "hallway" at the "side," outside of Morales ' office, not in
the presence of Morales , that Mercedes Rivera (another employee - she, as
well as Ms . Cancel, were later terminated by Respondent , as is discussed in
I I,B,3, infra) had told him to give them Local 806 cards and that they wanted
to have "the union in" since "we did not have a union ," and that this
conversation took place after they had been hired . For reasons already in
part indicated , and amplified hereafter , I was impressed with the poor rather
than the good quality of Vazquez as a witness. Under the circumstances, my
rejection of his version and my preference for and acceptance of the version
of Ms. Cancel represent an easy choice . As I have already indicated, Ms.
Cancel was a highly impressive witness whose demeanor and assured
delivery commanded belief. Unlike most of the other unit witnesses she
testified in English ; is an educated as well as intelligent , highly articulate
person whose testimony rang with truth - in marked contrast , also, to the
testimony of Morales , with his alleged memory deficiencies and mincing
equivocations, which were perhaps in the most charitable view the product of
desire not to harm or displease his employer. Respondent saw fit, for
undisclosed reasons, not to produce either of the secretaries who Ms. Cancel
swore were present during her interview with Morales.
Incidentally, Ms. Cancel signed a card for District 65 late in December
1973 - although not directly material in the aspect of this case under
immediate discussion, nevertheless further indication of that Union's
continuing vitality among unit employees even in December.
806 cards, spending as much as 10 minutes with each
employee, during regular working time. There is again no
indication of objection by or interference from any supervi-
sory personnel. Further, Cansing corroborates the credited
testimony of Fernando Aguirre (supra) that on or about
November 25 he and Aguirre were told by General
Manager Feinberg 55 (outside of the plant cafeteria) that if
they were presented with Local 806 cards they should "sign
it" or else "he would be very sorry to have to fire [you]."
Although Aguirre said nothing to this, Cansing responded
to Feinberg, "Me no like Union 806." Two or three days
later - still in November - Cansing was called to
Feinberg's office, where, in the presence of Alex Ocana
(acting as interpreter) Feinberg informed Cansing that he
(Feinberg) was aware that Cansing had been offered a
supervisory position (as he indeed had, by Personnel
Manager Morales), and that Feinberg was awaiting word
on this from "Harrison" who knew that Cansing was "with
District 65, and they wanted to be sure I [Caning] got
away from the movement and after a few days, the first of
December, Union 806 was going to be recognized, and he
[Feinberg] would advise me to have the benefits.... (It
will be recalled that Caning was a member of the District
65 employees organizing committee .) Cansing indicated
willingness to accept the supervisory position but wanted to
know what benefits he would derive. Feinberg replied that
he did not know but wanted to be sure that Caning was
"out of [the District] 65 group"; and that Caning would be
placed in charge of the machinists, with a choice of building
location.56 Notwithstanding his acceptance of the invita-
tion to become a supervisor when he received it from
Morales earlier in November (or October), as of the date of
the instant hearing he had not received it.57 Caning also
brought out that at least three of Respondent's supervisors
- Ildefonso Urdaneta (a foreman), Efrain de Jesus (a
foreman's aide), and Carmen Cuaz (a forelady's aide) -
ss As already indicated , although Feinberg denies that episode, on
comparative demeanor observations I prefer and credit the mutually
corroborated account of Aguirre and Canning.
is While admitting that he spoke to Cansmg in his office, with Alex
Ocana - a chief Teamsters Local 806 protagonist - as interpreter, in
November concerning Cansing's pending supervisory assignment , and that
he (Feinberg) was aware of Causing 's District 65 sympathies , Feinberg
would have it according to his testimony that he merely relayed on to
Caning that no decision on his supervisory job might be forthcoming for a
few more weeks and that the subject of District 65 remained unmentioned,
but that Feinberg did remark that he would expect a supervisor to be without
any union affiliation. However, in his July 22, 1974, affidavit Feinberg had
sworn , concerning this episode, "I did have a conversation with Cansing in
my office late in November at winch time I discussed the possibility of his
being promoted to a supervisory position at the plant.... I knew Caning
sympathized with District 65, so I told him that he could not remain affiliated
with that or any union if he became a supervisor . I did not tell him that he
had to abandon District 65 as a condition of being given the supervisory job."
[Emphasis supplied.] (As appears from Cansing 's testimony - undisputed in
this regard and, indeed , conceded by Respondent as to Ildefonso Urdaneta
- no fewer than three of Respondent 's supervisory employees not only
belonged to Teamsters Local 806 but were also members of its organizing
comnuttee.) Cansing 's account of the November episode in Feinberg's office
is undisputed by Alex Ocana, who according to Feinberg as well as Cansing
was there and acted as interpreter for Feinberg, and who testified at length
on other facets of the case.
57 Several years ago, Cansing had filled the role of an "acting" supervisor
or foreman's aide for approximately a year, but was relieved of this at his
own request when no pay raise was forthcoming.
HARTZ MOUNTAIN CORP. 507
are members of Teamsters Local 806, and that the initial
Local 806 organizing committee in November 1973
included these three supervisory employees of Respondent.
Miguel Denizad, employed by Respondent since the end
of August 1973, testified that 3 or 4 months after he had
signed a union card for Distributive Workers District 65
(which, according to his recollection, was around a month
after his employment started), he signed a card for
Teamsters Local 806 which he did not date or otherwise fill
out since he cannot read or understand English. According
to his testimony, he signed the card after receiving
notification in his pay envelope indicating that he would be
discharged if he did not do sops and because Vazquez told
him, "Sign the card." Although the date November 21,
1973, appears on the card, Denizad credibly insisted that he
did not fill that (or any other date or information) in on the
card, and his testimony - despite some confusion on his
part on the subject of the date of Christmas in relation to
another holiday or celebration date in Puerto Rico - in
totality fairly indicates that he signed the Local 806 card
after the November 30 recognition date of that Union and
that, therefore, his card was predated by someone else.59
Luz Fabiola Diaz, a unit employee employed as a packer
on the second floor of the Jersey City plant, testifying in
similar vein to numerous other unit employees, testified
credibly that on three or four occasions in November 1973
after Thanksgiving she observed Vazquez - a first-floor
employee - during worktime soliciting employees on the
second floor to sign Local 806 cards. (According to Ms.
Diaz, at least three supervisors were assigned to the second
floor - William Presutti, Carmine de Rosa, and "Mr.
Ernie.") Also in November, Ms. Diaz further observed
Ocana and Sanabria during their and second-floor work-
time, uninterruptedly soliciting unit employees to sign
Local 806 cards almost every day. At or around the same
time, she saw Vazquez in conversation with Local 806
representatives in the plant, and those representatives
engaged in conversation with General Manager Feinberg
also.
Christina Flores, who like most of the unit employees
neither speaks, reads, nor writes English, testified that she
started in Respondent's employ in August 1972, continuing
until mid-January 1974. Shown her alleged member-
ship/bargaining representational designation card in
Teamsters Local 806 bearing the date November 21, 1973,
she stoutly denied that she ever signed or dated or
otherwise wrote anything appearing on that card, or that
as It is observed that the collective agreement entered into between
Respondent and Teamsters , dated December 1, 1973, contains a "union
security" provision conditioning continued employment of unit employees
upon membership in Teamsters Local 806 (G C. Exh. 3A).
59 Testifying on this matter , Vazquez first swore that Denizad signed the
card in his presence after Ismael Reyes filled it out . When, however, it was
pointed out to and conceded by Vazquez that the date on the card is in a
differently colored ink from the rest of the entries on the card, Vazquez - in
his characteristic testimonial style - backed away from his earlier testimony,
indicated he may not have seen the date filled in, and conceded he did not
see Reyes change pens ; and still later he further conceded that he did not
know who wrote the date on the card or whether it was on the card when he
turned it over to Teamsters Local 806. When Vazquez nevertheless insisted
he "knows" he turned this specific card over to that Union prior to
December 3, in the face of his testimony that he also gave out cards to
employees and turned them over to the Union after December 3, Vazquez
was unable to offer any explanation for his alleged ability to distinguish this
she ever authorized anybody to fill out such a card for her.
Further testimony elicited from her was that although her
husband told her he had signed a card for her in Local 806,
notwithstanding that she had no desire' to affiliate with
Local 806 and had already joined District 65, the card in
question with her name on it is neither in her handwriting
nor in her husband 's handwriting.60
Wilfredo Lorenzana (Lorenzano), a unit employee of
Respondent until around April 1974, testified that he
applied for a job with Respondent on November 27, 1973.
After waiting in the personnel office waiting room for
awhile, at or around 10 a.m. he was called into the office of
Personnel Manager Morales for interview. Present in
Morales' office , in addition to Morales , were two secretaries
and Juan Vazquez. Lorenzana had previously observed
Vazquez going in and out of Morales' office as other job
applicants were entering there from the waiting room
before Lorenzana's interview. In Morales' office, with
Morales looking on, Vazquez handed Lorenzana a Team-
sters Local 806 card and stated that it "was the union which
was legally representing the workers there" and that "it was
for the union that will represent you." Morales remarked
"that it was true," and also told him that his ,signature on
the card was "necessary to be signed to belong to the union
and to be able to work there." Lorenzana filled in the card
(G.C. Exh. 27), dated it on that day (November 27, 1973),
and signed it. Morales thereupon gave Lorenzana an
employment application form which Lorenzana filled in,
asked him a few routine questions, offered him a job at
$1.80 per hour, and informed him that "later on... [you]
would have more benefits according to the union that they
had there ... the same as the one in the card [you ]fill[ed]
in." Morales then called the supervisor to whom Lorenzana
was assigned. Present throughout this episode were Mo-
rales, two office secretaries, and Vazquez. When Lorenzana
left Morales' office to reenter the personnel office waiting
room, there were an estimated 17 or 18 persons waiting
there: Vazquez, who had stepped out of Morales' office with
Lorenzana, began distributing Local 806 cards to the
persons in the waiting room. One of them - identified by
Lorenzana as Valdes, who knew no English at all - asked
Lorenzana to help him fill out the Local 806 card, and
Lorenzana did so without reading the card to him.
Lorenzana heard Vazquez tell the employees to whom
Vazquez was distributing cards there that the cards were for
the Union which represented the employees working there
and which would also represent them. When Lorenzana left
card from the others; grappling at straws at this point , he finally offered the
lame explanation that he remembered one card - not Denizad's - was
turned over to Local 806 before December 3 because its signer was "very
fat." Reyes was unexplamedly not called to testify. I credit Denizad's
testimony that this card was not signed on November 21 or prior to
Respondent's recognition of Teamsters Local 806.
60 A second Local 806 card was presented here, dated January 9, 1974,
this one admittedly signed by her after Christmas 1973. Since this card is
subsequent to Respondent's recognition of Local 806 here in question, it is
immaterial to this proceeding. With regard to the first alleged Christina
Flores card - i.e., the one bearing date November 21, 1973 - Vazquez
denied any recollection of ever having seen it before . I am unimpressed by
and wholly dubious of the testimony of Ocana that he remembers receiving it
"precisely . or more or less" - whatever that may mean - on
November 21, 1973, from Cresenziano Salcedo (who was not called to
testify), but who was unable to identify the signature thereon, leaving Ms.
Flores' testimony in effect unchallenged.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the personnel office waiting room, Vazquez was still there
speaking to employees , soliciting them to sign Local 806
cards . Subsequently, in December, Lorenzana signed a
union card for Distributive Workers District 65, and still
later, in January 1974, he asked Morales to return his Local
806 card, telling him he had not authorized a continuing
dues deduction for Local 806, but Morales informed him
that this was not possible and that he could not continue to
work for Respondent without belonging to Local 806.
Lorenzana told Morales he would place the matter before
the National Labor Relations Board , which he did the next
day.61
Hector Lozada, another unit employee, testified with
persuasive credibility to a comparable experience in Re-
spondent's personnel office on November 24,1973 - also,
as in the other instances which have been described, prior
to Respondent's recognition of Teamsters Local 806 -
while in process of interview for employment at the Jersey
City plant . After Lozada had filled out an application form
in the personnel office waiting room , he was approached in
that room by Juan Vazquez, who asked him if he had "filled
out the card for the union." When Lozada answered that he
had not, Vazquez handed him a Local 806 card and told
him to fill it out. At the same time , Vazquez similarly
informed and handed Local 806 cards to four other job
applicants there . Although Lozada filled in the blanks on
the Local 806 card he had received from Vazquez, he did
not sign the card at that time . Later that morning, in the
office of Personnel Manager Morales , Morales asked
Lozada if he had filled out the card for the Union . Lozada
informed Morales that he had and showed him the card.
Morales remarked that it was "a strong union . . . the
union of the truck drivers" and that "that was the union
that would represent [you]." Lozada actually signed the
card on November 27, the day he started to work at the
plant, on which date he was approached at his workplace
during worktime by Vazquez , who asked him for his card,
which Lozada then gave him. Lozada subsequently, in
December, signed a card for Distributive Workers District
65. Lozada's employment with Respondent was terminated
on March 26, 1974.62
Jose Maisonet, another unit employee , entered Respon-
dent's employ as a hi-lo forklift operator on November 13,
1973, remaining in that capacity until he was terminated on
61 Vazquez testified that neither Morales nor any of his clerks was present
while Vazquez solicited Lorenzana's Local 806 card, allegedly outside of
Morales' office with the door to Morales' office closed ; Vazquez then
appeared to indicate he (Vazquez) was not even in the personnel office
waiting room but in the hallway outside, whence he grudgingly conceded he
could not have seen whether Morales' office door to his waiting room was
open or closed. Furthermore, it is difficult to perceive how Vazquez could
have been distributing cards to and speaking with persons in Morales'
personnel office waiting room from the hallway outside . After listening to
Vazquez's labored version of this episode and observing him closely as he
pursued his path through it, I was left with the strong impression that it was
being retailored , and I accordingly reject it and credit Lorenzana's version.
Furthermore, unexplainedly the two office clerks of Morales were not
produced to dispute Lorenzana's testimony in any way. As for Morales,
although he asserted that he did not tell Lorenzana he would "have" to sign a
Local 806 card , he also testified he was unable to recall interviewing
Lorenzana at all . While , to be sure, there are some variations in details
between Lorenzana 's testimony and his prehearing statements , nevertheless,
upon the record presented , including evaluation of comparative testimonial
demeanor while observing each of these witnesses under cross-examination, I
prefer and credit the testimony of Lorenzana.
April 26, 1974, also during the pendency of this proceeding.
There has been presented here a Teamsters Local 806 card
bearing Maisonet's signature , dated November 27, 1973
(G.C. Exh. 60). Maisonet's credited testimony establishes
the following concerning this card . Around December 10
Maisonet was approached by Juan Vazquez, who told him
that he "needed somebody for the 806 committee ." Maiso-
net replied that he did not wish to be involved . Vazquez
then asked him if he had signed a Local 806 card and
Maisonet said no. About four times in December, during
working time, Vazquez tendered a Local 806 card to
Maisonet for signature , warning him that if he did not sign
it he would be "put out." In January 1974, Maisonet
received permission from Personnel Manager Morales to
take leave for the purpose of visiting his sick father in
Puerto Rico . Thereafter Maisonet was again approached by
Vazquez, who suggested that he sign a Local 806 card to
enable him to obtain the "benefits from the union " in case
anything happened to him during his trip to Puerto Rico.
Maisonet swears, and I credit his testimony, that the date
"11/27/73" which appears on this card (G.C. Exh . 60) was
not placed on it by him and that he signed this card in
January 1974 a few days before he left for Puerto Rico on
January 28 , he fast having learned about his father 's illness
there from a telegram received by his brother around
January 15 , 1974.63
Jose Peguero, another unit employee , employed as a
merchandise organizer , likewise testified that in November
1973 he observed Juan Vazquez distributing union cards in
the plant during working time , interrupting his own work to
go to different plant areas in order to do so.as Peguero
testified that he signed a Teamsters Local 806 card as well
as a Distributive Workers District 65 card and probably
also a Retail Clerks Local 888 card, with the understanding
that if he signed cards for all unions there would be an
increased likelihood of an election ; he himself clearly
favored District 65, of which he later became a committee
member.
Teamsters Local 806 presented testimony of a number of
witnesses concerning its advent into the unit employees'
representational picture at Respondent's Jersey City plant.
At the outset it must be observed that the opening
statement of counsel for Local 806 that when that Union
entered the picture in November 1973 it was unaware that
62 Concerning the foregoing , Vazquez testified that he was unable to
remember Lozada or his card . Ocana, however, testified that it was he who
gave this Local 806 card to Lozada , who signed it in his presence "more or
less before" December 3; but Ocana was unable to explain why two different
dates (i.e., November 24 and 27 , as credibly explained by Lozada ) appear on
the card. As for Morales , he appeared to be careful to limit his testimony to
stating that he did not ask Lozada to sign a Local 806 card - which is not
inconsistent with Lozada's testimony - and he then asserted on cross-
examination that he was unable to recall his job interview with Lozada. All
circumstances considered, I credit Lozada's version of the episodes.
69 Concerning the foregoing, Vazquez testified that the Maisonet Local
806 card was not signed in his presence and that he does not know who
solicited it, but that he received it "before December 3." Asked how he could
be certain of the date (with so many cards involved), Vazquez replied with a
11flash of indignation , "Because I am certain... .
64 Peguero figures in an allegedly discriminatory discharge in violation of
the Act, dealt with infra
es Peguero's testimony to this effect is consistent with , and so amply
corroborative of, like testimony of numerous other credited witnesses, that I
credit it in this aspect.
HARTZ MOUNTAIN CORP. 509
any other union was involved or represented employees
there is at variance with the facts established here , including
testimony of its own witnesses (Vazquez, Calagna, etc.).
Much of the testimony of Teamsters Local 806 witness
Juan Vazquez has already been reviewed, in conjunction
with the countervailing testimony of numerous unit em-
ployees whom I have no hesitancy in crediting singularly as
well as certainly in the aggregate, over Vazquez, whom I
closely observed to be an unpersuasive witness, exhibiting a
seemingly highly efficient memory for details helpful to his
interests while at the same time grievously deficient as to
details which might not serve the advantage of those
interests, within the framework of an intelligent , alert, and
agile mind . He also demonstrated a testy , quick-tempered
intolerance at even the usual moderate probing of typical
cross-examination , not hesitating at times to lash out at his
interrogators with arrogant sarcasm ,66 while consistently
being evasive, and blunting question after question with
irresponsive and lengthily discursive "answers ." His testi-
mony is also replete with inconsistencies and attempted
retractions , modifications, and unpersuasive after-
thoughts.87 Particularly in the face of the heavy counter-
vailing testimony delivered by essentially simple but
straightforward witnesses , I am unable to credit Vazquez's
sweeping denials of engaging in card solicitation on behalf
of Teamsters Local 806 under any of the circumstances
described by those witnesses.
Vazquez' testimony and affidavits in evidence (G.C.
Exhs. 129 and 130) are, however, consistent with testimony
of the unit employees here that it was indeed Vazquez who,
in the period of hardly more than the last week of
November 197368 was the employee kingpin of the success-
ful operation to install Teamsters Local 806 as the employ-
ees' "exclusive" bargaining representative under a compul-
sory membership and dues checkoff requirement,69 not-
withstanding the overwhelmingly strong following of Dis-
tributive Workers District 65 (to say nothing of the very
strong following of Retail Clerks Local 888). Vazquez
testified that in conducting his organizational activities on
behalf of Teamsters , commencing on November 21
(Wednesday), he passed on to the employees the informa-
tion he had received from the representatives of that Union
66 E.g ., after being picked up on a date (a month) and fearing impalement
thereon , he denied - still under oath - what he had testified to and
indignantly exclaimed , "I do not have an obligation to remember a date."
67 In view of the length of his testimony , a comprehensive analytical
enumeration of these would encompass a good sized pamphlet . Confronted
with the impeaching prehearing affidavit which he supplied to the Board
investigator (G.C. Exh. 129), Vazquez in his characteristic testimonial style
attempted to minimize it by asserting he does not read English and that he
did not know whether it was correctly translated to him before he signed it.
After some more cross -examination, however, he conceded that he had first
discussed it with Teamsters Local 806 counsel and satisfied himself it was the
truth . But, again characteristically , this was not the end of the matter
testimonially . Shortly thereafter, Vazquez insisted that he had pointed out to
Teamsters counsel that there were errors or inaccuracies in that affidavit.
When it was then shown to him that he had initialed corrections or changes
on various pages, he belligerently constructed a totally incredible attempted
explanation of why his initials appear (or do not appear), and denied that he
can read any English at all. Vazquez added , "I do not remember , it [i.e.,
changes - initialed by him ] could have been made any time after , also, and
any document that has been retouched has no validity."
88 In his July 19, 1974, affidavit to the district court (likewise in English),
Vazquez swore that it was "during the last week or so in November [that ] I
started getting cards signed for Local 806 at the plant " (G.C. Exh. 130).
that "their union was the most powerful in the world, and
that so much so that they could paralyze ships," and that in
effect it could therefore presumably gain recognition even
without a strike .70 It was Vazquez, according to his
testimony, who was the central collecting point for all Local
806 cards regardless of by whom or how allegedly pro-
cured,71 and he who transmitted them to Local 806; and he
conceded he did so without taking any steps to verify
signatures, even though he returned some which lacked any
signature at all . His testimony concerning the alleged dates
when he turned over various cards to Local 806, and how
many in December as distinguished from November, is
either incomprehensible , confused, or unpersuasive and
incredible, at least to the extent that any fording as to the
true date or dates when they were signed would be
unwarranted. Indeed, at one point 72 - again contrary to
his previous testimony - he conceded that he may have
"skipped" checking "some" cards - in Vazquez' words,
"there were quite a few" - as to whether dates were filled
in before he turned them over to Local 806.
Concerning the credited testimony, as has been recount-
ed, of various unit employee witnesses regarding how they
were solicited to sign Teamsters Local 806 cards in
Personnel Manager Morales ' office or his adjoining person-
nel office waiting room , notwithstanding Vazquez' broad
denials here, it is of interest to note Vazquez' statements on
this subject in his July 19, 1974, affidavit (G.C. Exh. 130,
emphasis supplied):
"I never told or had anyone sign a card for Local 806
inside or just outside the office of Mr. Morales, the
Personnel Manager. I never had anyone sign a card
when I thought Morales was close by and could hear
what we were saying . I'm sure he saw me sometimes in the
waiting room talking with applicants.
Although Vazquez denies telling unit employees he was
soliciting to sign Local 806 cards, that the Company would
- unlike Distributive Workers District 65 - recognize
Local 806 without an election, Vazquez' lieutenant, Joaquin
Ocana - who testified he assisted Vazquez in that
endeavor from the very first day, November 21, and
succeeded in obtaining 60 or 70 signed cards - conceded
89 If valid , this, of course - since technically lawful in New Jersey -
would have had the effect, under the proviso to Sec. 8(a)(3) of the Act, of
blanketing all other unit employees, without exception , into dues-paying
membership in Teamsters Local 806 , under penalty of discharge from their
jobs.
70 Presumably also, in the context of the existing situation at the Jersey
City plant, without a Board-conducted election to actually resolve the
question and doubts of the representational conflicts and real desires of the
employees by secret-ballot election under the Act - under any circumstanc-
es the preferred modality for determining employees ' true sentiments. Cf.,
e.g., N.L.1LB. v. Gissel Packing Co., Inc., 395 U.S. 575, 579, 596, 602-604
(1969).
71 In view of his testimonial style , which has already been alluded to,
there is difficulty at times in ascribing a definite statement to Vazquez which
is not umbilically linked to subsequent equivocation, modification , contra-
diction, withdrawal, or focal blurring by his later testimony . Thus, again,
although Vazquez first swore with seeming assurance that it was he who
turned all Local 806 cards over to that Union , regardless of by whom
solicited, he later swore with equal seeming assurance that not all of those
cards were turned over to Local 806 by or through him.
72 During cross-examination concerning the Peguero card (Resp. Exh. 4),
the Maria Santiago card (Resp. Exh. 29 ), and the Lindica Mosquera card
(Resp. Exh. 38).
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he (Ocana) did tell employees that "the company
would recognize 806 without an election." In view of
corroborated credited testimony to the contrary, I do not
credit the testimony of Ocana, any more than I do that of
Vazquez, that at no time did he solicit signatures for Local
806 during working time.73 Ocana testified that he solicited
Local 806 cards also in December - i.e., after the date of
Respondent's recognition of Local 806 - as well as in
November; without any clear or credible recognition of
when various cards were solicited , after first denying that he
ever filled in any information left blank on any Local 806
card, Ocana later conceded on further cross-examination
that he did indeed fill in information on some of the cards.
Emerson Peneherera, one of Respondent 's few (i.e.,
about 8, out of a total work force of over 400) mechanical
maintenancemen, also called as a witness by Local 806, also
exhibited clear partiality toward that Union and hostility
toward District 65 74 as well as Local 888. He testified that,
when Vazquez asked him late in November if the mechani-
cal maintenancemen were willing to participate in a union,
he replied in the affirmative, whereupon Vazquez and later
Ocana supplied him with some Local 806 cards which he
(Peneherera) distributed at the end of November among
plant employees including but not limited to mechanical
maintenancemen , at various locations including the plant
itself as he walked through it in the regular course of his
work as mechanical maintenanceman throughout the entire
plant. He also, at the end of November, became and has
remained a member of the Local 806 organizing commit-
tee.75
It was testified by various witnesses , including Vazquez,
Ocana, and Sanabria, that at no time prior to recognition of
Local 806 was any Local 806 organizational meeting of the
unit employees held or called.
Anthony Calagna, president of Teamsters Local 806, also
testified as its witness.76 According to Calagna, within
about 3 or 4 days after Local 806 cards were supplied to
Vazquez, Calagna was informed by Gonzalez that a
majority of employees had "signed." Thereupon, without in
any way checking to see whether this was true, or as to the
79 This tesimony of Ocana - like Vazquez, an unsatisfactory (as well as
truculent) witness - was seemingly eroded by his own later testimony on
cross-examination , that he did not do so on working time "that I remember
at this moment" [emphasis supplied] ; and by his further testimony that he
solicited such cards "at any time the supervisor didn 't pay attention." It is
not apparent why - considering his known and open advocacy of Local 806
- if Ocana restricted his solicitational activities to his lunch and workbreak
times, he would be concerned about whether any supervisor was "paying
attention ." Ocena was employed during November 1973 as an inventory
checker with a roving assignment covering the entire first floor of the plant.
He later conceded he also solicited Local 806 cards on the second floor as
well in November and December.
74 He indicated, for example, that he incredibly heard "not one voice" in
favor of District 65. On cross-examination he anchored his recollection of
first knowledge of Local 806 to a Tuesday during the third week of
November 1973, 4 days after a meeting in the home of Concepcion Pastrana,
whom he acknowledged he knew to be a member of the District 65
employees organizing committee.
75 Eddie Toro Sanabna, a fourth member of the employee group assisting
in the operation resulting in Respondent 's recognition of Teamsters Local
806, insisted that his activities were limited to distributing and not collecting
such cards.
76 His aide, John Gonzalez, who figured prominently in activities herein
and who served as Calagna's Spanish interpreter in dealing with Vazquez
and other central actors in these events , was without explanation not called
as a witness.
genuineness of the names, signatures , or otherwise, Calagna
telephoned Respondent 's Jersey City plant general manag-
er, Feinberg, and stated to him that "We have your people
signed and we would like a meeting .... for recognition."
The same or next day Calagna received word to meet
Respondent's vice president, Kaye, at the plant. At that
meeting - which was on November 2677 - present in
addition to Calagna and Gonzalez were Kaye and Fein-
berg, and members of an employees' "Local 806 commit-
tee" (i.e., Vazquez and his aides). Further according to
Calagna - but not other witnesses, except Vazquez - he
displayed a bundle of cards, asked for recognition, and
said, "Count them," whereupon Feinberg (Calagna correct-
ed this on cross-examination to Kaye) picked them up and
without counting them said it was his opinion that the
Union did not have a majority and declined to recognize
it ?8 Calagna thereupon remarked, "If [you] want[ed] more
proof .... I will get you some more cards." 79 On cross-
examination, Calagna first swore explicitly that he was not
told by Kaye that the Company would recognize Local 806
when it had a majority; however, when shown his July 18,
1974, affidavit to the district court80 to the contrary,
Calagna conceded that he was indeed told that in substance
by Kaye.
In order to preserve what appears to be a better
continuity in reconstructing these past events through the
maze of discontinuous narrative of a large number of
witnesses, we shall at this point again pick up the testimony
of other witnesses concerning the events prior to Respon-
dent's recognition of Teamsters Local 806 on November 30
- i.e., in part dealing with the important issue of the
circumstances under which Local 806 cards were solicited
and obtained - after which we shall describe the recogni-
tion scene of November 30 including Calagna's version
thereof.
Respondent's version of the circumstances under which
signatures (or alleged signatures) on Local 806 cards were
obtained and dated, or its knowledge thereof,81 is as
follows.
77 On or about November 27, according to Calagna, but on November 26
according to other witnesses.
78 On cross-examination, Calagna corrected his testimony and asserted
that Kaye did not even remove the rubber band which surrounded the cards.
According to Calagna's uncorroborated and somewhat vague testimony, he
had "about 198" cards when he left his union office in Elmhurst , Long Island
(New York), and received "about 25" more upon arrival at the Jersey City
plant. The unidentified and unverified (as well as apparently uncounted)
nature of the cards allegedly received by the Union has already been
mentioned - as have the circumstances under which Local 806 cards were
solicited at the plant by the "Local 806 committee."
79 Calagna subsequently corrected this by asserting he was not sure he
said this.
80 In the Sec . 10(j) temporary injunction proceeding before Chief Judge
Whipple, referred to above.
81 At this point, it may be appropriate anticipatorily to observe that an
employer's lack of knowledge - even a total , good-faith lack of knowledge
- of the circumstances under which employees' signatures or alleged
signatures and dates on allegedly valid union cards forming the foundation
for the employer's recognition of a union were obtained, does not constitute
a valid basis for its recognition of a union presenting cards which are not
genuine as to signature and date, or which were obtained under improper
circumstances, or which are otherwise not free from taint. It is clear that an
employer extending recognition in any such situation does so at his absolute
peril. See International Ladies' Garment Workers' Union, AFL-CIO [Bern-
hard-Altmann Texas Corp J v. N.LR.B., 366 U.S. 731, 737-738 (1961).
HARTZ MOUNTAIN CORP. 511
To begin with, no supervisors or personnel on a level
lower than Personnel Manager Morales were produced by
Respondent to testify that they had neither permitted nor
observed any of the Local 806 solicitational activity by
Vazquez and his aides during plant working time, repeated-
ly described by numerous unit employees as so openly,
visibly, and notoriously being carried on in late November.
While I neither assume, find, infer, or conclude that those
activities were in fact observed by any specific supervisor -
excluding, for the time being, General Counsel's subpenaed
Supervisor Negron (infra) - it would appear perhaps
strange if in a plant of this size not a single one of the
foremen and foreladies and their assistants would observe
such open , notorious, and large-scale activity, or be in a
position readily to testify that it did not take place, thereby
challenging contrary testimony of numerous employees
thus not left in contest other than by the interested and
discredited card solicitors themselves. In the absence of
such testimony, we are relegated to evaluating the testimo-
ny of Respondent's testifying managerial personnel -
Personnel Manager Morales on up - who were perhaps in
not as good a vantage point personally to observe what was
actually going on. We shall consider Morales first, and
thence up the scale.
According to Personnel Manager Morales, a native of
Puerto Rico who characterizes himself as bilingual in
Spanish and English in the conduct of his job, and thus able
to understand what Vazquez and others were talking about
in Spanish in his personnel office as well as elsewhere -
although there was a company rule against solicitation
during worktime, he concededly made no attempt to
enforce this rule at any time prior to December 3, 1973. His
reason for this, according to his testimony, was that no
employee requested his permission to so solicit and because
he had no personal knowledge of any infractions. I do not
credit his testimony as to the latter, at any rate - i.e., that
he had no knowledge of infractions - in view of at least the
aforedescribed credited testimony of various employees
concerning Vazquez' Local 806 solicitational activities in
Morales' own office as well as in his personnel office
waiting room, and also Morales' own personal role and
participation therein. I also would have great difficulty in
believing that, as personnel manager of the Jersey City
plant, Morales - who acknowledged that he had daily
discussions with General Manager Feinberg about plant
conditions - was wholly ignorant of what was openly and
82 Morales admitted that in November 1973 he "heard" that Vazquez,
Ocana , Sanabria , and others were soliciting for Local 806, and that he saw
them doing this dung lunch and work break time as well as before working
hours, but that nobody "made any complaint" to or told him they were also
doing this during working time . I do not believe Morales was unaware of
their activities during working time ; indeed, it was quite unnecessary that he
be told about it, since he personally knew at least what was going on in his
own office and personnel waiting room . And, since Morales concededly
discussed plant conditions every day with General Manager Feinberg, it is
quite inconceivable that the large volume of Local 806 organizational
activities going on in the plant in late November would not have figured in
those discussions - particularly in view of Feinberg's conceded knowledge
thereof as shown below . Finally, on cross-examination Morales acknowl-
edged that in the latter part of November Feinberg asked him specifically
about the "numbers" of employees who had signed Local 806 cards, and that
he told Feinberg that he (Morales) had "seen" Local 806 cards being
distributed "in the plant."
It may be of incidental interest at this point that on cross-examination
notoriously going on there by Vazquez and his aides in the
last week of November in the way of proselyting for
Teamsters Local 806.82 With regard to Vazquez' Local 806
solicitational activities in Morales' private office or person-
nel waiting room, Morales admitted that he did indeed
observe Vazquez at various times handing out Local 806
cards and talking to job applicants in Morales' personnel
waiting room (adjoining and interconnecting with Morales'
private office), but not during Vazquez's working time.83
Whatever possibly strange definition of Vazquez's "work-
ing time" may or may not be here involved in Respondent's
corporate mind - e.g., that Vazquez was on "leave" or
"break" during these times - was undeveloped and neither
satisfactorily nor credibly explained; in view of already
described credited testimony of job applicants showing that
Vazquez's solicitational activity took place while Personnel
Manager Morales and the members of his staff were on
duty and actually engaged in interviewing job applicants
and giving them forms to fill out, it would be unjustifiable
to assume that they, too, were not doing this during
working time - and for this reason, among others, I am not
prepared to believe or find that Vazquez alone was not "on
working time." Furthermore, after some hedging, backing,
and filling, Morales embarrassedly appeared to conceded
- seemingly contrary to Vazquez's testimony - that he
had indeed observed Vazquez handing out Local 806 cards
while Morales was standing in the doorway to his private
office; that on those occasions when he observed Vazquez
so doing in Morales' personnel waiting room , he (Morales)
had no knowledge as to how long before he saw him
Vazquez had been there or thereafter remained there; and
that he had no idea of whether Vazquez was in Morales'
personnel waiting room adjoining Morales' private office
when the interconnecting door to Morales' private office
was closed. Morales also swore that he does "not recall"
whether he heard what Vazquez said to any of the
employment candidates; that he never "invite[d]" Vazquez
into his private office to hand out Local 806 cards and that
he never noticed Vazquez there. On cross-examination,
however, Morales acknowledged that while he was inter-
viewing job applicants, including during November,
Vazquez had walked into his (Morales') office (apparently
un-"invited"), but that Morales had merely told him he was
busy and would see him later. Morales conceded on cross-
examination that he at no time attempted in any way to
stop Vazquez from his Local 806 solicitational activities in
Morales also acknowledged that in or around October 1973 he (together with
Feinberg) discussed with Vazquez the idea of an "independent union" or
"cooperative .... employees" (Morales' phrase) group for the plant - a
concept which according to Morales was surfaced by Vazquez to them by his
workplace on the plant production floor . According to Morales, who
translated for Vazquez , Feinberg's reaction was that he "didn 't want to be
involved in any type of organization. "
83 In contrast to his testimony here , Morales had sworn to the district
court in July 1974 merely that, although "I [Morales] knew that Juan
Vazquez and others were soliciting [for Teamsters Local 8061 from time to
time [in November 19731 . . . I do not recall ever seeing them doing so on
work tune." (C.P. Exh. 9, emphasis supplied .) And Morales' same affidavit is
hedged with a further carefully worded qualifying clause concerning his own
(i.e., Morales') actions (id, emphasis supplied): "I have never told any
employee or job applicant to sign up with the Teamsters, during job
interviews or at any other time , so that they would be discharge4 laid off or
denied employment if they failed to do sa . "
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the plant personnel office ; Morales testified that it never
"occur[red p' to him that if such union cards were being
allowed to be distributed in the Company 's personnel office
candidates for employment might get a wrong impression.
Morales acknowledged that no union cards were ever
handed out in the personnel office on behalf of any union
other than Teamsters Local 806 ; and that a person seeking
employment would have no way of knowing that Vazquez,
while distributing Local 806 cards there, was not employed
in that very office.
On cross-examination , Morales retreated into his "I don't
remember" pattern when asked so broad a question as
whether he ever had any discussion with any employee
concerning Teamsters Local 806 ; although Morales subse-
quently acknowledged informing employees that "normal-
ly, the contract had to have a security clause that called for
the employees to join the union," he again pulled back into
denial of ability to "recall" the occasion or context of, or
any person involved in, any such remarks by him. In
contrast we observe Morales' assertion in his July 1974
affidavit that "I did indicate on a few occasions that I
thought the Teamsters were a good union , and that once a
union achieved recognition, all employees would probably
have to join that union or be fired" (C.P. Exh . 9). After first
denying that he ever discussed Distributive Workers
District 65 , Retail Clerks Local 888 , or any other union,
with any employee , Morales' attention was drawn to his
statement in his affidavit (id) that "Occasionally I would
discuss unions with an employee at his initiative" and he
was asked which unions ; his response, characteristically,
was that he does "not recall" and, further, that he could not
"remember" how that information got into his affidavit.
In his July 1974 affidavit (submitted by Respondent in
opposition to the Regional Director's application for a
preliminary injunction), Morales swore that he, together
with Vice President Kaye and General Manager Feinberg,
attended a meeting on November 26, 1973 , with Teamsters
Local 806 Representatives Calagna and Gonzalez and
"thirteen production employees constituting the Teamsters'
organizing committee" (C.P. Exh . 9).84 Morales' affidavit
goes on to state (emphasis supplied):
Either Vazquez or Sanabria on behalf of the employ-
ees stated that the committee represented the vast
majority of employees in the plant 85 Kaye asked them
e4 Teamsters Local 806 President Calagna 's version of this meeting has
already been set forth above.
as It will be recalled that the Local 806 "committee" was - unlike the
District 65 employees organizing committee - wholly self-designated,
unelected by the unit employees , and had never even conducted a meeting of
the unit employees.
u General Manager Feinberg , who was also present during this meeting,
likewise testified that Calagna displayed no cards at this time.
97 It will be recalled that as of this time actually majorities of the
employees had signed cards for Distributive Workers District 65 , as well as
for Retail Clerks Local 888 , as has been shown
u The document in question is interesting . It is dated November 26, 1973,
and captioned "CERTIFICATION ." To begin with , there are two different
versions or editions of it. One (G .C. Exh. 140), already referred to, contains a
typed list of 17 names, with 13 alleged signatures ; the other (G.C. Exh. 139
and Resp . Exh. 46) contains the same typed list of 17 names , with the same 13
alleged signatures but with numerous marginal notations indicating that
various of the signatories were "absent" and either "replaced" or "answered
for"; and two additional names and alleged signatures (Marcial and Sifbnger
- the latter a terminated employee who , unlike District 65 adherents, was
if they would be willing to sign a statement to the effect
that they were speaking for the employees in making
this recognition request on behalf of the Teamsters.
They responded that they would . Kaye interrupted the
meeting momentarily to prepare a written statement to
that effect , which was then signed by the thirteen
committee members present. Calagna, Gonzalez and the
committee representatives then stated that the Team-
sters had been designated by a majority of the employ-
ees, and requested recognition . Kaye questioned the
basis of this assertion. The committee responded that it
had signed up a majority of employees and turned
authorization cards over to the Union . Kaye said that
the Company could make no commitment at that time,
but would consider their request if in fact the Union did
possess majority support . He also reminded them that
the- Company had no legal obligation to recognize any
union during the year following decertification. The
meeting ended with Calagna stating that they would
present authorization cards to the Company at a
subsequent time.
It will have been noted that, for example, this affidavit is
inconsistent with Calagna's testimony that he presented
Local 806 cards at that meeting .86 It will also have been
noted that in his affidavit, Morales represented under oath
that the Local 806 "committee" statement prepared by
Kaye, concerning the supposed (and seemingly self-as-
sumed) authority of that "committee" as the representative
of "the vast majority of employees," 87 was in Morales'
presence "signeby the thirteen "committee" members
present . At the hearing of the instant case , however, on
cross-examination Morales testified that he was unable to
recall how many "committee members" were present; and,
when he was confronted with the actual document they
signed (G.C. Exh . 140), which only lists 13 names with some
lines not signed, Morales conceded that he did not see 13
sign it as he had sworn in his affidavit to the district
court.88
Finally, as already indicated in connection with the
review of the testimony of unit employees regarding their
late November 1973 experiences in the company personnel
office - Morales' private office as well as his waiting room
- involving their being solicited there into Local 806
membership, it is reiterated that their combined corrobora-
recalled to work by Respondent, as will be shown infra) are added in
handwriting at the bottom with some other handwritten remarks not
appearing on the other copy of the November 26 "CERTIFICATION." The
signatures on each copy include Ildefonso Urdaneta (No. 2 on G.C. Exhs.
140 and 139), who is admitted in Respondent 's answer to have been a plant
supervisor . It is stipulated here (G.C. Exh . 114) that prior to November 30
Respondent's vice president , Kaye , "had become aware that Ildefonso
Urdaneta was a member of the Organizational Committee for Teamsters
Local 806."
Further concerning this document , Vice President Kaye , who was also
present at the November 26 meeting and who prepared the document,
testified that there were only eight employees present and that only those
eight signed it. If - according to General Manager Feinberg and as shown
by the number of names on the list - there were 17 on the Local 806
"committee," 8 would be a minority of even such a ` comnuttee."
Feinberg testified that he became aware at the November 26 meeting that
Distributive Workers District 65 and Retail Clerks Local 888 supporters
were not present at this meeting. More will be said concerning this document
in considering the testimony of Kaye ; see fn . 98, infra.
HARTZ MOUNTAIN CORP. 513
tory versions of those episodes have here been credited in
preference to Morales' broad scale denials, within the
framework of the testimonial quality of the unit employee
witnesses , the contrasting caliber of Morales' testimony,89
and the record as a whole.
Respondent's Jersey City plant general manager, Fein-
berg, also testified concerning the level of his knowledge
concerning solicitational activities for Teamsters Local 806
at the plant in late November 1973. He simply denied that
he ever personally witnessed any employee being signed up
for Local 806 membership in the plant during working
time90 - adding (as did Morales in his testimony) that he
never received any "protests"91 about organizing activity
on behalf of Local 806 during working time.82 However, on
cross-examination Feinberg conceded he was aware that
Local 806 card signatures were being solicited in the plant
with tacit lack of interference from lower level supervisors.
Feinberg denied "telling" any employee, "prior to Decem-
ber 3, 1973," to join Local 806 or that the Company did not
want District 65 or Local 888 in the plant; 93 it is not
necessary to reiterate here specific testimony to the con-
trary concerning this which has already been discussed.
Feinberg acknowledged, however, that he did inform
employees that they would obtain job security, better pay,
and health benefits under a union; that "if a particular
union was voted in by a majority of the people, that all
employees were obligated to be a member of it" (emphasis
supplied); and (on cross-examination) that "if [Local] 806
was successful in their drive, [you] would have what [you]
were asking for [i.e., medical benefits, etc.] all the previous
months." 94
In his affidavit submitted to Chief United States District
Judge Whipple in opposition to the Board's Regional
89 Comment has already been made , man earlier portion of this Decision,
upon Morales ' quality as a witness ; more of its flavor has been provided
above, including comparison of his testimony here with his affidavit to the
U.S. district court . Morales' testimony on cross-examination is liberally
punctuated with unfortunate alleged memory lapses concerning significant
matters presumably within his knowledge as personnel manager of the Jersey
City plant, as well as a discomforting general evasiveness in resistance to
proper probing into matters where answers could have been damaging to the
interests of his Employer.
90 During cross-examination by counsel for District 65, however, Fem-
berg acknowledged that he was aware of "very heavy" card signing for Local
806 in the plant in November ; that the only thing he did to interrupt this was
to indicate to Morales and the plant supervisors that this should not
continue , and that on his strolls through the plant he endeavored to see that
these instructions were carried out. He also acknowledged telling Morales
"many times" that no union cards were to be signed in Morales' own office
or in the personnel waiting room . At no time did Feinberg indicate any
penalty or discipline would attach to any failure to carry out these alleged
instructions , nor even that a notation might be entered into an offender's or
continued offender 's personnel file. Feinberg conceded informing Kaye in
November that "active signing" of Local 806 cards was going on "in the
plant"; although Feinberg claims Kaye instructed him to have it stopped on
company time, there is no evidence that any such instruction was carried out.
Indeed , Feinberg concedes he was informed from time to time in November
by Plant Manager Petrera (his immediate subordinate) that Local 806 card
solicitation was being carried on "on company time," and , further, that
Company Supervisors Rivera, Santiago , Negron, and Oest similarly indicat-
ed to him in the latter part of November that this activity was widespread
throughout the plant ; but Feinberg's only reaction was to tell them to "have
it stopped ." This testimony by Feinberg at the hearing seemingly contradicts
his assertions in his preheanng affidavit (G.C. Exh. 144) that he was unaware
that card signing for Local 806 was being carried on.
Si Similarly in Feinberg 's July 22, 1974, affidavit (G.C Exh. 145,
"complaints"). "Protests" or "complaints" are hardly the test of the legality
Director's application for a temporary injunction, Respon-
dent Vice President Kaye - who, according to his
testimony, also had responsibility for industrial relations at
the Jersey City plant - had indicated - although the
language of the affidavit is somewhat equivocal - that his
first knowledge that Teamsters Local 806 was attempting to
organize the Jersey City plant was on November 26, when
General Manager Feinberg told him so based upon a
request Feinberg had received from Teamsters President
Calagna (G.C. Exh. 138).95 However, at the instant hearing
Kaye corrected this so as to testify that he had learned this
from Feinberg prior to November 26 on the occasion of
Teamsters Local 806 President Calagna's request to Fein-
berg to arrange a meeting in connection with Calagna's
request for Teamsters Local 806 's recognition as bargaining
agent "for the employees of the Jersey City plant." 96
According to Kaye, only 8 (he had first sworn 13, not only
upon his direct examination but also in his prehearing
affidavit [" 12 or 13" ] as well as in his affidavit to the district
court, but corrected himself on cross-examination when his
recollection was assisted by displaying to him the actual
document) employees, comprising the Local 806 "commit-
tee," were present at the November 26 meeting - including
Respondent's supervisor Urdaneta, in addition to Local
806 officials Calagna and Gonzalez.97 Kaye's description of
this November 26 meeting differs from that of Calagna and
other witnesses in significant respects. According to Kaye,
Calagna and the eight-person "committee" requested
recognition of Local 806 "as bargaining agent for the
employees at the Jersey City plant." [See fns. 96, 85, 87, and
88.] (According to Kaye, of the eight employees there
present constituting the alleged "committee" representative
of all of the employees in the plant, only two were women
of such activities . Since he knew about these activities , it was incumbent
upon him to take effective measures to stop them.
92 Asked on cross-examination, however, whether a certain named
employee (Thelma Rudolph , who was described to him and whom he
conceded knowing) had not informed him or complained to him that
Teamsters Local 806 solicitation was being carried on openly outside of the
personnel office , whereas Retail Clerks Local 888 had not been permitted to
do so, Feinberg claimed not to be able to `remember" this.
93 In his July 22, 1974, affidavit (G.C. Exh. 145, emphasis supplied),
Feinberg acknowledges that "some employees occasionally asked me
whether I could help them in deciding between the possible choices of unions,
i.e., the Retail Clerks, District 65, the Teamsters, or a house union ," but that
he forebore doing so.
94 The making of the latter statement is likewise unmentioned in
Feinberg's July 22, 1974, affidavit. (G.C. Exh. 145).
95 As pointed out above , Feinberg swore at the instant hearing that he has
alerted Kaye to the fact that "active signing" of Local 806 cards was going on
"in the plant"; and there is other indication - even apart from Kaye's
admission implied in his correction (supra) of his affidavit to Chief Judge
Whipple - that Kaye was aware of it before November 26. It is true that the
affidavit uses the expression "press that union's [i.e., Local 806 's 1 claim for
recognition"; however, the affidavit is silent regarding any previous knowl-
edge by Kaye of Local 806 activity.
96 This language is quoted since there was not then nor subsequently any
intimation by Local 806 that the nature of the bargaining unit was anything
less than "the employees of the Jersey City plant" (assumedly with the
conventional exclusions of supervisory, office clerical, and guard personnel).
As will be shown , the contention that the bargaining unit was different was
first introduced on Respondent 's behalf considerably later, after its recogni-
tion of Local 806.
97 It is observed that in his prehearing affidavit to the Board investigator
(G.C. Exh . 137), Kaye omitted to mention that Calagna and Gonzalez were
present at this meeting, but swore that "Subsequently, I was contacted by
Anthony Calagna" (id; emphasis supplied).
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and six were men, with four women staying away. Also
according to Kaye, at this time 60 percent of the production
workers (and, therefore , approximate voting population of
the plant) were women.) Kaye prepared a statement then
and there for the eight employees to sign 88 After at least
some of the employees there signed it, Kaye then remarked
that their signatures alone "would not and could not be
substantial evidence to support a claim for recognition
either on the part of the committee representatives or on the
part of the union ." Calagna thereupon - still according to
Kaye - stated that he "could and would" submit such
evidence , consisting of cards, but he submitted none at this
meeting . According to his testimony on direct examination,
Kaye "invited" Local 806 to do so ; according to his
testimony on cross-examination , he did not "invite" them
to do so . Calagna indicated he would submit "cards .. .
represent[ing] the majority of the employees at the Jersey
City plant" by the end of that week.
Finally on the subject of the November 26 meeting which
occurred in the midst of the described Teamsters Local 806
organizational activities during the last week of November,
there is the testimony of Juan Vazquez . He enumerated 10
- and he testified there were more - employees present
constituting "the committee" - thus, his testimony in this
respect (as well as others) contradicts that of Kaye and
Morales . He also testified , widely at variance from Kaye,
Feinberg, and Morales , that Local 806 presented cards at
this meeting, that the Company counted the cards without
otherwise examining them, and that since "some cards were
still missing to reach the half plus one quantity [i.e.,
u See fn . 88, supra Contrary to other testimony, Kaye's version is that
perhaps not all of the eight employees there signed it then and there, but that
it was taken away an4 later returned to Feinberg with a few signatures added
of employees who had not been at the November 26 meeting at all, with Kaye
ignorant of when or how the latter had become "members" of the
'committee" or "representatives" of the unit employees . On cross-examina-
tion , Kaye testified that the names of these additional employees appearing
on the later list were supplied by Juan Vazquez, and "notes" were later added
indicating that the nonsigning employees were "replace[d p' - again without
Kaye's knowing when, how, or why; but Kaye conceded he was aware that at
least Concepcion Pastrana , one of the nonsigners of the original list, was a
District 65 supporter . It is further observed that notwithstanding the
purported concern verbalized by Kaye at the November 26 meeting as to
whether this small group of employees really represented a majority of the
plant employees and would so certify in a writing he (Kaye) would then and
there prepare, the document signed and returned to him (through Feinberg)
later (G.C. Exh. 139) does not state that the signing employees represent a
majority of the employees - and Kaye so acknowledges . Kaye also testified
that Vazquez told him that this "committee" had "polled" the employees -
as to which there is not a shred ofevidence - and had ascertained that the
vast majority wished to be represented by Local 806; and that he (Kaye)
asked no questions concerning the nature of this alleged "poll," but that
Vazquez made no statement claiming to have a majority of union cards.
Further cross-examination of Kaye concerning the alleged "signed state-
ment" by Local 806 "commiteee" members which figured (concededly
erroneously as to the " 13" he had sworn to in his district court affidavit as
well as in his preheating affidavit here - corrected by Kaye at the hearing
here to "eight") also in the district court injunction proceeding , educed
testimony from Kaye that, when he received a copy of that statement (G.C.
Exh 139) from the "committee" with all signatures thereon, he supplied a
copy thereofto the Board investigator as an attachment (G.C. Exh. 140) to his
preheating affidavit (G.C. Exh 137 ). However, inspection of these two
documents , represented to the Board investigator to be copies, indicates they
are not the same ; one (G.C. Exh. 139) contains two additional signatures and
also some extra notations . Confronted with these two differing documents at
the hearing, Kaye was unable to account for the differences between the two.
Under these circumstances , he again shifted ground and further changed his
earlier testimony that all signatures were on the document (G.C. Exh. 139)
majority]," Kaye asserted that when Local 806 obtained a
majority of cards the Company "would meet again [and ] be
willing to discuss with the majority." Vazquez and his aides
thereupon resumed their Local 806 card solicitational
activities.
As has been noted above, concededly the Teamsters
Local 806 cards in question (upon the basis of which
Respondent accorded recognition to that Union as the duly
designated exclusive representative for all of its unit
employees) were collected by Vazquez and his aides
between November 21 and 30 or December 3 (depending
upon which date is considered to be effective for recogni-
tional purposes 99). The nature of the solicitational activities
carried on to procure those cards, and Respondent's role
and participation therein, have already been discussed and
no repetition is here necessary. However, in view of the
denials by Respondent's and Local 806's witnesses of the
testimony of the unit employees testifying as General
Counsel witnesses, General Counsel produced a rebuttal
witness whose testimony was devastating. He was Domingo
Negron, conceded by Respondent in its answer to have
been one of its Jersey City plant supervisors during the
period in question.100 He knows Vasquez. After having
promoted Distributive Workers District 65 from May to
around November 1973, at lunch in November Vazquez
remarked that he was "going to Harrison 101 to see about
another union . . . 806." Vazquez did not return to the
plant that day. A few days later, Vazquez told Negron that
he "had another union . . . Local 806." 102 Thereafter,
Negron observed Vazquez distributing Local 806 cards
when he received it back from the "committee"; indeed, they were not even
on it when he executed his prehearing statement on January 28,1974 (G.C.
Exh. 137), which was also filed with the district court as well as in the U S.
Court of Appeals for the Third Circuit as part of Respondent's record on
appeal. It was conceded at the instant hearing that no copy of this version of
the document - i.e., G.C. Exh. 139 - was furnished by Respondent to the
district court or the court of appeals; the position taken by Respondent on
this at the instant hearing was that it was under no "obligation" to do so.
(Kaye added that he had no knowledge of the discrepancy until a day or two
before his testimony at this hearing.)
90 As will be shown, although the signed agreement recognizing Local 806
is dated November 30, Respondent claims it was not actually signed by it
until December 3.
100 Negron was employed as supervisor of Respondent's Jersey City plant
variety department from November 1972 to October 1974, when he was
terminated by Respondent for permitting an employee - who was not
himself terminated - to remove a small carton of scrap. Negron's testimony
is undisputed that he was told by Plant Manager Petrera that his termination
was unjustified and to return after a 3-day suspension. When he returned he
was not reinstated but informed that he would be given a good recommenda-
tion to any prospective employer. Considering his excellent background, the
clarity, precision, and firm ring of truth with which he testified, his unshaken
testimony, the fact that he has indeed utilized Respondent - at its offer - as
a reference for employment purposes, and the fact that he did not seek to
testify here but was sought out and subpenaed by General Counsel, and
finally that he testified here under a Federal grant of immunity under
circumstances to be shown, I was most favorably impressed with Negron's
testimony after closely observing his demeanor on the witness stand.
101 I .e., Respondent's administrative headquarters, where its managerial
hierarchy (including Kaye and O'Connor) is located.
102 The foregoing testimony by Negron is undisputed by Vazquez.
Vazquez had, however, insisted (during cross-examination by District 65
counsel) that he first spoke to Respondent regarding Local 806 on November
26 or 27, 10 or more days after he had approached and introduced that
Union into the picture. For reasons already explained involving testimonial
evaluations and demeanor comparisons, to the extent of any inconsistency I
credit Negron.
HARTZ MOUNTAIN CORP. 515
throughout the plant, including in Personnel Manager
Morales' personnel office (with the door to Morales' private
office closed), during working hours. Negron observed this
three or four times a week. He also saw Morales come out
of his private office while Vazquez was distributing these
cards to new or prospective employees, and Negron further
saw that Morales observed this but said nothing. Negron
asked Vazquez what he was doing. Vazquez answered that
he was "distributing cards for 806 because he needed the
cards for recognition of the union ... to back up the
company." 103
Negron also knew Calagna and Gonzalez to be Team-
sters Local 806 officials. He saw them in different plant
areas in the Jersey City plant on several occasions during
November, talking to groups of 8-10 plant employees.
Negron reported this to General Manager Feinberg.
Feinberg's response was, "Leave them alone." 104
Notwithstanding the foregoing, in his prehearing affida-
vit of January 17, 1974 (Resp . Exh. 69),105 Negron had
sworn, "I was unaware that any union authorization cards
were being passed out in any part of the plant including the
Personnel Manager's office or in the anteroom outside this
office." Negron now swears that this was untrue; and that
when he was sought out by Board agents preparing this case
for hearing he pointed this out to them. His explanation for
this at the hearing was that he gave that false information in
the prehearing affidavit 106 because "at the time I was a
company man." Asked whether he had ever been affiliated
with District 65 or Local 888 or Local 806, Negron's firm
response was, "I was a company man at all times."
I observed Negron with extreme care while he was
testifying. He demonstrated himself to be an outstandingly
impressive witness whose testimony remained unshaken. I
believe his explanation as to why he lied in his prehearing
statement in favor of his employer, and I credit his
testimony in full.
City plant on November 30 (Friday). According to Calag-
na's testimony - although this is denied by Kaye - the
meeting was arranged by Calagna with Kaye . At this
meeting, according to Calagna (The variant versions of
Kaye and others are set forth below), he displayed two
rubberbanded stacks of cards;107 Kaye and Feinberg each
took a bundle and looked through them substantially one
by one.108 When, still according to Calagna, Kaye or
Feinberg removed five cards of "maintenance " employees
and Feinberg also pointed out two additional cards of
clerical employees,109 Calagna indicated he did not want to
represent such employees "at that time" and to "disregard"
those cards since "I am not interested in maintenance
people . This is only for production people." (As appears
below, Calagna claims he later changed his mind .) Calagna
thereupon produced a document , characterized by him at
the hearing as a "stipulation for recognition " but which
states on its face is a "Recognition Agreement" by
Respondent of Teamsters Local 806 dated November 30,
1973 (G.C. Exh. 2). Although this recognition agreement is
signed by Calagna on behalf of Teamsters Local 806 as well
as by James O'Connor as vice president and on behalf of
Respondent Employer, Calagna as well as his Union's and
Respondent's witnesses assert that O'Connor's signature
was not affixed to it until December 3. The November 30
recognition agreement explicitly identifies the recognized
and "mutually agree[d] . . . unit appropriate for the
purposes of collective bargaining" to be as follows:
INCLUDED : All the employees of the Employer.
EXCLUDED : Guards, Supervisors and all private secre-
taries, as defined in the Labor Management Relations
Act of 1947, as amended.
Whether signed on November 30 or December 3, it is this
unit which Respondent and Teamsters Local 806 agreed
was and which is in their agreement several times explicitly
referred to as the appropriate and recognized bargainingb. November 30 recognition meeting
Teamsters President Calagna and his aide/Spanish
interpreter Gonzalez, together with Vazquez and his freshly
hatched Local 806 "committee," met again with Respon-
dent's officials Kaye, Feinberg, and Morales at the Jersey
103 All of the foregoing testimony is likewise undisputed by Vazquez.
i04 This likewise stands uncontradicted by Feinberg.
105 This prehearing affidavit (G.C. Exh . 184A) was offered and received
in evidence at Respondent's behest (Reap . Exh. 69). A subsequent prehearing
affidavit (G.C. Exh . 184B) was offered by General Counsel , with decision
reserved on Respondent 's objection thereto . That objection is hereby
sustained.
106 Under the circumstances, the Assistant Attorney General of the
United States granted Negron immunity from prosecution for this falsifica-
tion in order to pernut Negron to testify here without hazard of prosecution
(G.C. Exh. 185).
107 According to Calagna on cross-examination there were "around 270"
(changed from his earlier "over 300 ... about 320" on direct examination;
then , on later cross -examination, changed back to 300-320), since in his
estimation there were "about 270" when he left his office (Elmhurst, New
York) and he received "about 50" more upon arrival at the Jersey City plant.
Calagna concedes these are an "approximation" and that he has no exact
knowledge. As shown below, however, Vazquez' estimate is far more modest
- only "about 240." In the absence of any precise count or testimony by any
witness, including Calagna and Vazquez , I decline to make a finding based
upon speculation as to how many "bards" there actually were, a key issue
herein being actual numbers and percentages , or arithmetical facts, the
unit.
According to Calagna, Kaye acknowledged at the No-
vember 30 recognitional meeting that - as, indeed the
November 30 recognitional agreement expressly states -
Teamsters Local 806 represented a "majority of the
nature of which ,is precise and not "approximate." Furthermore, I find it
incredible that nobody, including Calagna and Vazquez , had counted or
listed these cards , which are central to their cause , standing, and contentions,
as well as to this case and their positions herein . Nor will I engage in
speculation as to the nature or characteristics of the cards thus allegedly
presented, other than as established on the record by substantial credible
evidence at the instant hearing.
108 This is totally at variance with the testimony of Kaye and Feinberg -
who might be expected to testify similarly if true - and is not credited.
109 In this regard, as well as in others, Calagna's testimony continues to be
at variance with that of Kaye, Feinberg, and others there and is not credited.
Feinberg, for example, was insistent in his testimony that no cards were
removed from the stack on the table and, further , that there was no
discussion as to how many cards were those of maintenance or clerical
employees (although he also claims that Calagna and Kaye indicated
employees in these categories were to be excluded). Without explanation,
Calagna's aide Gonzalez was not called to testify. I find it difficult to believe
that if Kaye was as "very annoy[ed ]" (Femberg's description) over inclusion
of maintenance and clerical employees and as insistent that they be
excluded, and Calagna as compliant in that regard, as they are both pictured
to have been , that the signed "Recognition Agreement" (G.C. Exh. 2) would
not have said so instead of explicitly providing the opposite.
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees"; and no question was raised by Kaye or
Feinberg as to any signatures or dates on any of the cards.
Calagna added in his testimony here that he was then aware
of no invalidity or infirmity in any of the cards since his
Union had not solicited them. Calagna further testified
that, at this November 30 (Friday) meeting, or at the
ensuing December 3 (Monday) meeting or possibly at both
of those meetings, one of the Company's representatives
stated that Distributive Workers District 65 had filed
charges with the National Labor Relations Board against
the Company in the described situation, to which Calagna
remarked, "What has that got to do with me. I am not 65."
And Calagna also swore here that the possibility of a secret-
ballot election was brought up by the Company (which
pointed out or had pointed out that since it was in a "safe
period" it was not obligated to recognize Local 806 without
an election), but Calagna "wouldn't listen" since he "had
the majority in my mind. I didn't want to wait for an
election of a month or two."110
As already stated, Calagna expressly disclaims knowl-
edge or awareness of any invalidity or infirmity in any of
the cards solicited on behalf of Local 806, upon the basis
that neither he nor any personnel of his Union did any of
the actual card soliciting. Calagna acknowledged on cross-
examination that he did not check any of the alleged
signatures or dates (or identities or employment status) on
or relating to any of the cards presented to the Employer
resulting in its recognition of his Union; and that his belief
that his Union represented "a majority" was based merely
upon an alleged mechanical count of "cards.""' Calagna
also conceded on cross-examination that, prior to Respon-
dent's recognition of Teamsters Local 806, Distributive
Workers District 65 had contacted Local 806 Secretary-
Treasurer Snyder concerning what Local 806 was "doing
over in Hartz Mountain"; and that Calagna was told by
Snyder, his superior, to "keep on doing what [you are]
doing." Calagna asked no questions.
Juan Vazquez supplies a differing version of what took
place at this November 30 meeting - different from that of
Kaye and other Employer's witnesses as well as from that of
Calagna. After the described November 26 meeting,
whichever version of that meeting is accepted, Vazquez had
resumed his Local 806 card solicitational activities. Accord-
ing to Vazquez on direct and cross-examination, at the
November 30 meeting Kaye ("or . . . O'Connor") took the
cards presented to him by the Union and said he "would
study those cards to see if the signatures corresponded to
110 Although the foregoing , relative to the holding of an election, is
disputed by Kaye, I credit Calagna' s testimony in this aspect . Calagna would
hardly manufacture such language and ascribe it to himself if he did not
actually utter it, since in a sense it is against interest.
111 According to his testimony, Calagna similarly swore in his July 1974
affidavit that his Union possessed a "clear majority," basing that only upon
what he had been told and his mechanical count of "cards" without
verification of any kind, and also in ignorance of the actual number of
employees in the unit . It is not possible for me to understand how a
"majority" or percentage can be calculated without knowledge not only of
the numerator but also of the denominator of the fraction; i e., the number of
persons in the unit.
112 Since this version, substantially reiterated by Vazquez on cross-
examination, is utterly at odds with that of Kaye and the rest of those who
testified , I am constrained to regard it as highly imaginative, and I reject it
113 This likewise is at total variance with the testimony of Respondent's
own witnesses , including Kaye (and his stipulated testimony , G.C. Exh. 114),
the workers" and "after that they would answer the union";
and that this is all that Kaye said and all that took place at
the meeting.112 On cross-examination, however, Vazquez
altered his direct examination testimony by indicating he
now thought the cards were counted by Respondent at the
meeting.113 Vazquez conceded that he himself had reviewed
only some of the cards; and, as already shown, his "count"
- like that of Calagna, also only an "estimate" 114 - is far
more modest, 25 percent more so ("about" 240, as against
"about" 320) than that of Calagna, thus seemingly estab-
lishing one or the other, if not both, of them to be
substantially inaccurate and therefore inexpert and unreli-
able as union-card-quantity estimaters or guessers . Vazquez
acknowledged that cards of persons no longer employed at
the plant, as well as duplicate cards, were not removed from
those submitted to Respondent as a basis for recognition of
Local 806; nor were the cards even reviewed for such.
(Again, speculation as to the number of such would be
fruitless.) And, in explicit contradiction of Calagna,
Vazquez swore that at no time at this meeting - nor at the
meetings of November 26 or December 3 at which he was
present - did Calagna ever indicate that some of the cards
presented should be disregarded nor that Local 806 did not
wish to represent some of the employees; on the contrary,
according to Vazquez, that Union at all times stated.that it
wanted to represent all of the employees.115
Respondent Vice President Kaye also testified concern-
ing this November 30 meeting,116 and a supplementary
stipulation (G.C. Exh. 114) was supplied in lieu of his
further testimony. According to Kaye's testimony, he asked
at this meeting why Mercedes Rivera, Juanita Mass, Luz
Fabiola Diaz, and Concepcion Pastrana had not signed
Kaye's "Certification" (G.C. Exh. 139), and Juan Vazquez
(as well as his aides Ocana and Sanabria) explained that
they "chose not to be members of this committee." Kaye
neither asked nor attempted to ascertain why. Kaye further
testified that Calagna placed a stack - his stipulated
testimony likewise states "a packet" - of cards on the
table. According to his stipulation, Local 806 therewith
"requested recognition as majority representative of the
employees." But according to Kaye's live testimony,
Calagna said that "These cards were obtained from a
majority of the employees employed at Jersey City to
support the union's request for recognition," that they were
approximately 300 in number,117 and requested recogni-
tion. Kaye responded, according to his testimony, that he
would be in touch with Calagna the following week. Kaye
and must be regarded as grossly untrue , since it seems inconceivable that if
Kaye or any other of Respondent's representatives counted the cards they
would not have so testified here (unless the count indicated less than a
majority); Respondent's witnesses ' testimony that no card count was made
(as shown below) is thus in a sense against interest and is credited.
114 See fn . 107, supra, regarding my views concerning "estimates" as
substitutes for facts in arithmetical calculations , which are , as herein,
required to be precise and not speculative . (Moreover, an unexamined
"stack" or "stacks" of cards may, of course , contain blanks - to say nothing
of all other imaginable varieties of invalid contents - and I shall not indulge
in speculations as to their number, if any, in an unexamined collection of
cards placed on a table.)
115 In this respect Vazquez' testimony is consistent with the express
language of the November 30 recognition agreement (G.C. Exh. 2).
116 According to Kaye, contrary to Calagna, he attended this meeting in
response to a call from Feinberg on the previous day (November 29).
117 Kaye's testimony is thus at variance with or in amplification or
HARTZ MOUNTAIN CORP. 517
further testified - also in contradistinction to other
witnesses with interests similar to his own - that he asked
the employees there present whether the cards had been
signed freely and voluntarily by the employees, and that
they replied in the affirmative "very ardently." 118 Kaye
took them at their alleged word. According to his own
testimony on direct examination, Kaye then "glanced at"
and "thumbed through" the stack of cards, without
counting them or inspecting individual cards for any
purpose, including authenticity of signatures. Still accord-
ing to Kaye's testimony, when he questioned whether there
were 300 "cards" (whatever their nature - some, many, or
all might have been blank, for aught known to Kaye),
Gonzalez counted off 50 and placed them beside the
remainder, on the basis of which Kaye maintains it "was
quite obvious in my opinion there was 300 cards in the
stack." 119 When Feinberg pointed out that some mainte-
nance employees had signed cards,120 according to Kaye he
(Kaye) remarked that he had never "known" those employ-
ees to be in the "bargaining unit for the Jersey City plant,"
whereupon Calagna indicated he (Calagna) would with-
draw their cards since he was only requesting recognition
for production employees.121 Kaye testified - consistently
with Calagna and Respondent's other vice president,
O'Connor - that O'Connor's signature on the November
30 "Recognition Agreement" was not affixed thereto on
November 30 since O'Connor was not there on November
30.122 Finally, according to Kaye's testimony, he took the
November 30 "Recognition Agreement" (G.C. Exh. 2 -
signed by Calagna) with him and, after discussions over the
weekend between him and his superior, David Lovitz
(executive vice president of Respondent), and between the
latter and O'Connor and Andersen (vice president and
general counsel), it was determined to proceed with
recognition of Teamsters Local 806. According to Kaye,
considerations underlying this determination were the
"mounting unrest" at the plant and "that the Teamsters
were obviously well known very strong national organiza-
tion that might have impact upon our other operations if we
didn't agree to recognize them," with District 65 not
mentioned "at all"; and with no consideration, contempla-
tion, or discussion of the possibility of any election - not
modification of not only his own stipulation (G.C. Exh . 114), but at variance
with the testimony of Calagna (supra) and Vazquez (supra) - neither of
whom testified that any number of cards was mentioned . Since I believe that
if a specific number had been mentioned by Calagna he would have testified
to it and that his (as well as Vazquez') failure to do so was in a sense against
interest, I do not credit Kaye's testimony that a number of cards was
mentioned.
113 Since I believe that if this had occurred at least Vazquez would not
have omitted mentioning it - even if the employees' reaction was less than
ardent - I do not credit this evident overblown embellishment by Kaye.
119 This testimony is, again , at variance with that of other witnesses there,
including Calagna and Vazquez, who, it would seem, would have testified to
so dramatic a demonstration if it had actually occurred . As for Gonzalez,
since he was without explanation not produced to testify , there would be no
justification in supposing that had he been produced his testimony would
have supported Kaye's unique account.
120 How Feinberg would have known tlus , in his professed state of
ignorance as to at least specifics of Local 806 card signing, was left
unexplained.
121 It is not satisfactorily explained why Calagna would so readily
acquiesce to withdraw allegedly signed cards in his possession. The
November 30 recognition agreement which he presented and which he (as
well as Respondent) signed states explicitly throughout that it includes all
even an election involving Local 806 alone. Kaye concedes
that the Company realized that if it did not recognize Local
806 at this time - around December 1, 1973 - in that
event within a few months (i.e., March or April 1974) some
union would file a petition for an election, compelling an
election upon the expiration of the 1-year period following
the decertification of Retail Clerks Local 888 (i.e., May 31,
1974).123
Kaye testified that in entering the meeting of November
30 he knew that Local 806 was required to establish that it
in fact represented a majority of the unit employees, which
it had not yet done; and that his purpose and function in
attending that meeting was to determine whether in fact
Local 806 did or did not represent such a majority. Kaye
nevertheless acknowledges that he had no payroll list with
him; that he only "briefly thumbed through" the cards but
did not count them; that he at best "glanced at some of the
cards" but "did not look at most of the cards in the batch";
that he "did not check the names against our payroll or
verify the signatures with those that we have on file from
the employees." The foregoing quotations are from a
written stipulation by Respondent as to Kaye's further
testimony here in lieu of presenting it orally in person (G.C.
Exh. 114). But there is, again, as in so many instances and
aspects of Kaye's testimony, a degree of apparent incongru-
ity if not outright inconsistency between his own statements
in the record here. For example, although his stipulated
(G.C. Exh. 114) "testimony" is that he "noticed that they
[i.e., "some" of the Local 806 cards presented to him by
Calagna on November 30] were signed and dated," his
actual testimony is that he could see no dates on any but the
top card and paid no attention to any dates; while he swore
in his July 22, 1974, affidavit that he "checked" a "random
sample" (G.C. Exh. 138) of those cards, he testified at the
hearing here that he did not take a random sample; and
while he swore to the district court that he "looked" at
"many" of the cards and he testified here that he "thumbed
through most" (later, "looked at"; still later, "didn't look
at" but merely "thumbed through") of the cards in the
batch, his stipulated testimony states that "I did not look at
most of the cards in the batch." 124 He then threw in that he
did not "handle" the cards "at all" because Calagna
employees (with only the conventional exclusions), with no exception for
maintenance employees. See also fn . 6, supra, regarding the historical
inclusion of maintenance employees in the bargaining unit; and further see
Vazquez' testimony, supra, contradicting Kaye , that at no time was any such
exception or exclusion mentioned.
122 Although Local 806 witness Peneherera testified to the contrary, that
O'Connor was present at the meeting of November 30, seemingly he was
plainly mistaken.
123 A petition for such an election may be filed no more than 60 days in
advance of the 1-year anniversary date of the decertification so as to permit
the holding of a representation election promptly in relation to that
anniversary date. Randolph Metal Works, Inc., 147 NLRB 973 (1964). For
reasons already indicated, I do not credit Kaye 's denial , in this connection,
of awareness that Distributive Workers District 65 remained in the
recognitional picture as at least a substantial candidate, if indeed not the
designated choice, of a majority of the unit employees.
124 Emphasis supplied . Kaye's lame attempted "explanation" at the
hearing for this distinction or quibble is, seemingly , that he neither looked at
nor did not look at the cards - inconsistent in yet another direction with still
other testimony - but that he merely "thumbed through" most of the cards,
whatever that means . Continued hedge-trimming of this nature left me with
areas of grave misgiving and doubt as to the existence of a sincere purpose on
(Continued)
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"cautioned" him that "picking up those cards would be
tantamount to recognizing Teamsters as a bargaining
agent." 125
Kaye further conceded in his testimony at this hearing
that in his evaluation of the stack of cards placed before
him by Calagna on November 30, he not only did not count
them but also gave no consideration to whether they
reflected persons currently in his Company's employ, nor to
whether they contained duplicate cards; and that he made
no cross-check of any cards against his Company's person-
nel records, nor of any signature against any employee's
signature on fWwith the Company. Indeed,Kaye acknowl-
edges that no objection or , problem I of any nature was
raised concerning any of the purported cards of any of the
production employees allegedly placed before him. Re-
spondent has categorically stipulated here (G.C. Exh. 114)
that:
At no time prior to the recognition of Teamsters
Local 806 were the authorization cards counted or the
signatures verified in any way.
Kaye conceded on cross-examination that his Company's
recognition of Teamsters Local 806 was in the last analysis
upon the basis of mere representations of Calagna and
Vazquez and his "committee," at the meeting of November
30 - without the Company's checking or processing the
cards themselves , which Kaye acknowledges may have
included cards of persons not then in the Company's
employ; and that the nature of Kaye's inspection of those
cards was such that Kaye is unable to say that he
recognized even one card as being that of any employee of
the Company on that day.126
Asked why the Company had agreed to treat with
Teamsters Local 806 when it had declined to meet with
Distributive Workers District 65, Kaye at first swore that
District 65 never offered to demonstrate its cards, but, when
confronted with District 65's correspondence to the con-
trary (G.C. Exh. 4), he acknowledged that District 65 had
indeed offered to so demonstrate. Kaye thereupon gave as
explanation for the "difference" and for his Company's
recognition of Local 806 that with relation to District 65's
recognitional request the Company took a "wait-and-see
attitude . . . let the feathers settle," until some months later
the Company thought that there "no longer appeared to be
all of the diverse factions at work in many directions of
union organization" 127 while at the same time, neverthe-
less, there were "mounting problems" and "pressures" from
the employees regarding wages and health/welfare, in
consequence of which "when we were contacted by
Teamster Local 806 we agreed to have an exploratory
information meeting. . . . I might add that the - I know
- what I know of the Teamster organization is that it is a
national organization and a very powerful one, and I wasn't
sure what they might or might not do to us if we didn't meet
the part of this highly intelligent witness to be forthright and candid in
accordance with standards expected of a testifying witness.
125 This is not only inconsistent with the testimony of all other witnesses
who testified, but is so preposterous and absurd on its face as to serve to
solidify the misgivings and doubts expressed in the last footnote (fn. 124,
supra)
126 By way of further possible interest in relation to the bona fides of the
for a session" - a concern the Company evidently did not
have with respect to District 65, whether or not that Union
was its employees ' choice. In Kaye's barometric idiom, the
reasons his Company was willing to deal with Teamsters
Local 806 but not with Distributive Workers District 65
were:
Because when 65 approached the company with a
request for recognition there was considerable turmoil
in the plant with many, many factions going in different
directions while there were no other external forces
there was a great deal of internal forces and they were
moving in different directions. In November when we
agreed to explore the situation with the Teamsters we
no longer had or at least I was not aware of all of the
internal forces which existed back in May or June .. .
that coupled with the increasing pressures with the
wages and health and welfare situation.
Kaye acknowledged, however, that if at any time prior to
his Company's recognition of Local 806 - which Respon-
dent maintains occurred on December 3, when Vice
President O'Connor signed the recognition agreement
(infra) - Respondent had a "current" request for recogni-
tion from Distributive Workers District 65, even on
December 3, Respondent would not have recognized Local
806. As to this, entirely apart from the questionable validity
of this suggestion that the written and concededly renewed
oral requests by District 65 for recognition, described
above, were no longer "current" in Respondent's ipse dixit,
it is the further incontestable fact that District 65 did indeed
by its registered letter of November 28 place Respondent
on the clearest of notice in this respect, in the following
terms (C.P. Exh. 1):
November 28, 1973
Hartz Mountain
305 Broadway
Jersey City, New Jersey
Gentlemen:
By letter dated May 23, 1973, we advised you that an
overwhelming majority of your employees designated
our Union as their exclusive bargaining agent.
Because of the decertification of Local 888 earlier
that month you have failed to sit down and negotiate
with us, relying on a legal technicality that we couldn't
file a petition or strike for recognition for a year from
date of that election.
I want to remind you that we are still the bargaining
agent for the employees of your plant and any attempt
by you to deal with another Union will result in our
taking immediate action to protect the workers and the
Union.
Please guide yourself accordingly.
Company's recognition process of the purported "majority union" here,
Kaye also acknowledged that if he had been dissatisfied with the Teamsters'
"health plan" or any other feature of its representational program, Respon-
dent would or might not have extended recognition to it "even upon the
establishment of a card majority."
127 That this is palpably incorrect, see the discussion and findings supra,
II,A,1 and II,A,2.
HARTZ MOUNTAIN CORP. 519
Very truly yours,
/s/ Frank Brown
Frank Brown
Organization Director
FB/sf
REGISTERED RETURN
RECEIPT REQUESTED
Official records, including postal service receipts (C.P.
Exhs. 2, 3, and 4), as well as testimony and concessions,
establish that this letter was dispatched by District 65 to
Respondent by registered mail, return receipt requested, on
November 28 or 29 and received and receipted for by
Respondent, through its usual and authorized postal pickup
messenger or clerk, Raymond Adams, on December 3,128
prior to its execution of the recognition agreement with
Teamsters Local 806. At the same time , November 28 or 29,
that District 65 dispatched the foregoing letter to Respon-
dent it forwarded a parallel letter, also by registered mail, to
Teamsters Local 806, as follows (C.P. Exh. 5):
November 28, 1973
Mr. George Snyder, Sec't Treas.
Local 806, I.B.T.
91- 31 Queens Blvd.
Elmhurst, L.I., N.Y. 11373
I have tried to reach you on the phone a number of
times , and did not get a reply. I am surprised and
shocked that you did not find it important enough to
respond to my calls.
I called you to give you the facts on District 65's
involvement at Hartz Mountain, located at 305 Broad-
way, Jersey City, New Jersey.
In May of 1973, the workers of Hartz Mountain
decertified from Local 888 of the R.C.I.A. They then
came to us and joined our Union. They did this on the
advice of Civil Rights organizations and political
figures. We accepted them as members and approached
the Company for a contract on May 23, 1973, as per
enclosed copy of letter. The Company said they did not
have to recognize us at this time. The workers proceed-
ed to take out and pay for Union books in District 65.
We are now approaching the time when we will be
able to take whatever action is necessary to get a decent
contract.
Since the workers demonstrated that they do not
want Local 888, they, the Company, has told them they
will bring them in a new Union. The workers have
already testified to that fact.
We were informed that Local 806 representatives met
with the Company to discuss contract conditions. In
view of the fact that the overwhelming majority of the
workers are members of District 65, such a meeting
constitutes an unfair labor practice, and your interven-
128 However, Kaye ("to the best of my knowledge," he says) as well as
O'Connor, Feinberg, and Morales , deny seeing this letter on or before
December 3. (Seemingly somewhat aslant from his affidavit [G C. Exh. 145 ],
Feinberg testified here that registered mail such as this is automatically
forwarded, by him or his office, directly to Kaye, unopened) Without
explanation , Raymond Adams, Respondent's usual postal pickup messenger
or clerk who signed the receipt for this letter, was not produced to testify. I
find that the letter was received and receipted for by Respondent in the usual
course on December 3, 1973.
tion at this time can only be regarded by us as an out
and out raid.
I assume you did not know all of the facts prior to
your receipt of this letter. We are therefore urging you
to withdraw all your activities from Hartz Mountain.
Fraternally yours,
/s/ Zeke Cohen
Zeke Cohen
Assistant Organization Director
ZC/sf
REGISTERED RETURN
RECEIPT REQUESTED
The return receipt (C.P. Exh. 6) for this letter indicates that
it was received on November 30, also before the recognition
agreement was signed by O'Connor on December 3.
Under these circumstances and the facts as heretofore
found, Kaye's explanations for Respondent's meeting with
and speedy recognition of Teamsters Local 806 in contrad-
istinction to its refusal to even meet with Distributive
Workers District 65 are open to serious question.
Arthur J. Andersen (Anderson), vice president as well as
general counsel of Respondent, also testified here, as an
adverse witness called by General Counsel, largely with
regard to the subject of the date of Respondent's recogni
tion of Teamsters Local 806. Andersen insisted - quite
unconvincingly, in my estimation - that, although he was
knee-deep in the Board's investigation of the situation here,
prior to as well as after issuance of the complaint herein -
he had no "conscious awareness" that the investigation was
in any way concerned with the date of his Company's
recognition of Local 806. Andersen attended his colleague
Kaye during the Board investigator's interview of Kaye and
Kaye's execution of his (Kaye's) prehearing affidavit herein
on January 20, 1974 (G.C. Exh. 137). After being shown
that affidavit, Andersen conceded that Kaye did not
"explicitly" 128 mention any recognition date other than
November 30; and Andersen was unable to suggest why
Kaye would not have indicated to the Board investigator
any such other date (i.e., other than the November 30 date
appearing on the signed recognition agreement [G.C. Exh.
2 ]) if in fact the recognition had occurred on or as of
another date. Incredibly, in my estimation, Andersen insists
that during the Board's prehearing investigation in which
he participated, he did not know the date when his
Company recognized Local 806. Acknowledging that he
also participated in a conference with the Board's Newark
Regional Director and Regional Attorney on February 11,
1974, after heavily hedging Andersen first insisted that he
could not "specifically recall" that November 30 was
mentioned as the recognition date; admitted that no
December date was mentioned; and finally conceded that
129 While Andersen - exhibiting a parsimoniously grudging and equivo-
cating testimonial style encountered in Kaye and Morales as well - added
the qualifying word "explicitly," Kaye's preheanng affidavit not only
indicates no "explicit" mention of any recognition date other than Novem-
ber 30, but also no implicit or any other kind of mention or suggestion
thereof. Andersen, testifying as an adverse witness, also consistently took
refuge in substantial areas of alleged recollective loss or lapse which seemed
out of keeping with his observed intellectual acuity.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November 30 was the only specific date of recognition
mentioned. Similarly in regard to a further conference
attended by him with Board General Counsel Nash and
Associate General Counsel Brissman in Washington on
February 28, 1974 (to attempt to persuade the latter against
proceeding with an application in the district court for a
preliminary injunction under Sec. 10(j) of the Act), Ander-
sen acknowledges that he was aware that the recognition
date was a key issue ; but again insists he cannot "recall"
whether any recognition date other than November 30
figured in the 2-hour discussion . Acknowledging further
that Respondent and the Board investigation were working
with or from a November 30 payroll, Andersen concedes
that at no time did Respondent indicate to the Board that it
was in error in doing so since - as later claimed by
Respondent for the first time during the course of the
instant hearing (infra) - the correct date or dates of
recognition was or were in December. Andersen likewise
testified that he does not believe there was any mention at
his February discussion at the Regional Office, concerning
a different recognition date for a portion or split off of the
bargaining unit explicitly defined in the November 30
recognition agreement , as now claimed herein (Unit 2,
infra). And, further according to Andersen, soon after the
issuance of the complaint here (February 11, 1974), in order
to attempt to resolve the basic questions regarding Local
806 strength on the recognition date, he (Andersen) person-
ally delivered to counsel for General Counsel (Mr. Kobell)
Respondent's payroll records as of the date November 30,
1973 (G.C. Exh. 187: "Summary of Employment as of
November 30, 1973"), without in any way referring to any
other alleged recognition date. Andersen thereupon testi-
fied that prior to Respondent's formal answer in this
proceeding Respondent gave no indication to the Board
that it relied upon December 3, rather than November 30,
as the date of its recognition of Local 806; however, when
then confronted with the admission, in Respondent's
answer, of paragraph 12 of the complaint alleging Novem-
ber 30 as the date of recognition, Andersen's rationale,
consistent with an explanatory objection by Respondent's
counsel, was that the admitted date of November 30 in the
complaint allegation was preceded by the words "on or
about," even though the answer contains specific other
averrals as to that very allegation of the complaint. (In this
connection, it is further observed that the same allegation
(par. 12) is contained in the amended complaint of March
21 and is similarly admitted in Respondent 's amended
answer filed herein on March 29, 1974 (G.C. Exh. 1).) After
additional probing and recollection-revival, Andersen.
130 It was served on Respondent by registered mail on November 30 and
receipted for on December 4 Even assuming Respondent had no knowledge
whatsoever of this charge prior to December 4, it is observed that
Respondent's collective agreements with Local 806 were entered into long
after that date , es will be shown . Indeed , according to Respondent Vice
President O'Connor, after receipt of that charge and discussion with his
superior Lovitz , it was decided nevertheless to proceed with a negotiating
meeting with Teamsters on December 7. On the question of Respondent's
knowledge on and prior to December 3 - indeed , even on and prior to
November 30 - of the filing of the charges herein on November 29, the
credited testimony of Teamsters Local 806 President Calagna (supra) will be
recalled that Respondent itself expressly pointed this out (eliciting from
Calagna the rejoinder, "What has that to do with me. I am not 65").
131 Snyder did not dispute this nor otherwise testify here. To O'Connor's
conceded knowledge , a recognitional strike by Teamsters under the circum-
finally conceded that Respondent put forward the conten-
tion that December 3 (and not November 30) was the date
of recognition of Local 806, for the first time on April 19,
1974 - i.e., after the filing of its answer and amended
answer herein, and during the pendency of this hearing.
Under all of the circumstances presented, it is quite
evident that - until it changed its position during the
course of the hearing of this case, on April 19, 1974, as
conceded by its vice president and general counsel, Re-
spondent regarded November 30 as the date of its recogni-
tion of Local 806, as its recognition agreement with that
Union (G.C. Exh. 2) expressly states.
c. December 3 meeting
As has been indicated, the charge underlying and
attached to the complaint in this proceeding was filed by
Distributive Workers District 65 on November 29, 1973.130
As has also been shown, on November 28 or 29 District 65
dispatched letters - also by registered mail, receipted for
by Teamsters on November 30 and by Respondent on
December 3 - to Teamsters Local 806 as well as to
Respondent, indicating District 65's representational status
and seeking that Respondent and Local 806 abstain from
recognition or contractual arrangements.
On December 3 (Monday), at the-close of the day (4 or
4:30 p.m., as indicated by Morales in his affidavit here in
evidence) - according to Respondent Vice President
O'Connor (Respondent's vice president for labor relations,
and in its employ for 45 years), after receiving a strike
threat that morning from Teamsters Local 806 principal
Snyder (Calagna's superior) who said he "had the plant tied
up' and demanded an immediate meeting to "avoid a
strike" 131 - Respondent met again with Local 806
Representatives Calagna and Gonzalez, as well as with
Vazquez' "committee ." According to O'Connor's testimony
as Respondent's witness on direct examination, the Compa-
ny had decided to recognize Teamsters Local 806 primarily
to "avoid a strike or a work stoppage"; Company Executive
Vice President Lovitz, who had discussed the recognition of
Local 806 with O'Connor over the preceding weekend
(December 1), gave the November 30 recognition agree-
ment to O'Connor 132 with instructions to do 'what I
[O'Connor] thought was best"133 Also present at the
December 3 late afternoon meeting with O'Connor, on
behalf of the Company, were Feinberg, Petrera, and
Morales, with Kaye joining in later. According to
O'Connor's testimony on direct examination, Calagna
stated the employees' "committee" represented "the major-
ity of the employees," set down a 4-inch "batch of cards,"
stances would have been a violation of the Act. It will be recalled that
Distributive Workers District 65 had earlier passed on to the unit employees
the advice of its counsel that a recognitional strike could not lawfully take
place within the postdecertificational year; and District 65 had comported
itself accordingly in accordance with the statute , without threat to the
contrary.
132 This is contradicted in the July 22, 1974, affidavit by O'Connor's
managerial colleague Kaye , who there swore that it was he (Kaye) who gave
the document to O'Connor. (G.C. Exh. 138).
133 O'Connor's testimony attempted to convey the impression that in the
ensuing meeting in the late afternoon of December 3 O'Connor still
remained a free agent to determine whether or not to recognize Local 806.
However , his July 22, 1974, affidavit indicates otherwise (G.C. Exh.143, as
also does the July 22, 1974, affidavit of Kaye (G.C. Exh.138).
HARTZ MOUNTAIN CORP. 521
and asked that O'Connor sign a recognition agreement;
O'Connor responded that he would take it up with his
superiors, and that if this is what the employees wanted this
is what the Company wanted.134 Still according to
O'Connor's testimony on direct examination, when Calag-
na asked why O'Connor did not sign it then and there,
O'Connor - also without in any way counting, checking
upon, reviewing, handling, or even touching the cards -
did so, adding his signature to the document which Calagna
had signed on November 30 and which O'Connor had
received from Lovitz (G.C. Exh. 2). O'Connor swore that at
no time was the composition of the bargaining unit
discussed, or "maintenance employees" or "production
employees" mentioned at this meeting.135 O'Connor con-
cedes that he, also, considered no alternative to recognition
of Local 806 in order to solve the alleged personnel unrest
problems in the plant. O'Connor asserts here that he signed
the recognition agreement upon the basis of the uncounted
and unverified cards because "I did not want to embarrass"
(emphasis supplied) Local 806, since it would have "embar-
rassed" Local 806 if he found fewer cards than that Union
claimed, or unsigned cards, duplicate cards, or false
signatures. O'Connor also agreed to start contract negotia-
tions with Local 806 in a few days, later scheduled for that
Friday (December 7).
Kaye conceded that at no time did Respondent make any
attempt to determine the sentiment of the unit employees
concerning their desire or lack of desire for representation
by Teamsters Local 806; that at no time did he discuss the
question of the desirability or undesirability of representa-
tion of the employees by Distributive Workers District 65;
and that at no time was an election considered to determine
those issues. The reasons ascribed by Kaye for Respon-
dent's recognition of Local 806 - somewhat unlike those of
his colleague O'Connor, who heavily emphasized Respon-
dent's desire to avoid a strike (i.e., an unlawful [see fn. 131 ]
strike) on the threat of Teamsters - have already been set
forth.
Concerning the December 3 meeting, Teamsters Local
806 President Calagna - who testified that there or at the
November 30 meeting, or at both, Respondent called
attention to the charges (i.e., in the instant proceeding)
which District 65 had filed against Respondent with the
134 This appears in marked contrast to Respondent 's reaction to the
District 65 requests and proffered card demonstrations.
135 O'Connor introduced a further possible note of confusion or uncer-
tainty by his testimony that , when he added his signature to this recognition
agreement on December 3, the words following "tzicLUDED" and the words
following "EXCLUDED ' now appearing on that document (G.C. Exh. 2) for
the unit description did not appear on it ; and he also professed inability to
recall whether there was any date on it. According to O'Connor, he si*ned
this agreement with the awareness that it contained "absolutely no definiti on
of the bargaining unit" recognized, and he made no suggestion to Calagna
that it be defined. Since O'Connor is alone of all witnesses in testifying to the
foregoing, which is in any event somewhat incredible on its face, since I
believe that the failure of other witnesses of Respondent and Local 806 to
testify thereto is in a sense contrary to interest, I do not credit this testimony
of O'Connor , who in other aspects , as elsewhere shown, demonstrated
himself to be far less than a satisfactory witness.
136
No such document has been produced here, and Calagna 's testimony
that he and Gonzalez signed such a document is unsupported by any other
testimony.
137 Although Respondent may not then as yet have received the charge,
this testimony accords with that of Local 806 President Calagna , supra, that
Respondent indicated it knew, prior to its recognition of Local 806, that the
charge herein had been filed with the Board.
Board (November 29) - developed an uncertainty, be-
tween his direct and cross-examination, as to whether he
produced any cards at all on that occasion. According to
Calagna, O'Connor insisted on a statement from the
"employees' committee" that they represented the employ-
ees; and "all the members of the committee" [cf. fns. 88 and
85, supra. ] as well as Calagna and Gonzalez 136 signed and
gave such a statement to O'Connor.
In his version of the December 3 meeting, Juan Vazquez
swears that no cards were presented to the Company at that
meeting, but that only the recognition agreement was
signed. In his prehearing affidavit, however, Vazquez had
sworn that at a meeting requested of Feinberg in Decem-
ber, "we presented the cards. Mr. O'Connor said he needed
some time because he had received a charge from the Labor
Board." 137 (G.C. Exh. 129, emphasis supplied.) 138 On
cross-examination , Vazquez reiterated that before
O'Connor signed the recognition agreement he indicated
awareness of the charge filed with the Board. And Vazquez
is insistent that at the December 3, as well as at the previous
meetings, his "committee" represented "all of the employ-
ees" at the plant, including even some of the office clericals,
and excepting only supervisors. And according to the
testimony of Local 806 witness Emerson Peneherera, a
mechanical maintenanceman and Vazquez' aide in his
Local 806 card solicitational activities, Local 806 President
Calagna's assistant Gonzalez introduced Peneherera as
there "representing the maintenance part" so as to establish
that they had "a real interest in participating into the
union."
Under all of the circumstances, I find that O'Connor's
signature on the November 30 recognition agreement on
December 3 was a mere pro forma delivery of that
agreement, which , as it recites and the parties explicitly
therein agreed, was effective November 30,1973.
d. December 7 plant cafeteria melee
On the afternoon of December 7, in the wake of
Respondent's recognition of Teamsters Local 806, there
occurred among Respondent 's unit employees a tempestu-
ous scene in the plant cafeteria.139 Responding to a call
over the plant loudspeaker, Respondent's employees -
138 Substantially the same statement is made in Vazquez' July 19, 1974,
affidavit, except that there the "December" is changed to "November," with,
however, still the following statement ascribed to O'Connor at that meeting:
"Mr. O'Connor said we [sic] needed some time because he had received a
charge from the Labor Board" (G. C. Exh.130). Information as to the filing of
the charge at the Board 's Regional Office on November 29, not being secret,
could of course readily have been conveyed to Respondent informally, such
as on the telephone from the Regional Office , by counsel, by the party filing
the charge, or by anybody else who knew about it.
139 The description which follows is based on the composite credited
testimony of all witnesses who testified concerning it.
Respondent had met a few hours earlier , on a scheduled negotiating
session, with Teamsters Local 806, which Respondent asserts it proceeded
with notwithstanding its conceded receipt (December 4) by that time of a
formal copy from the Board's Regional Office of the Distributive Workers
District 65 charge filed herein on November 29. While Respondent asserts it
terminated the December 7 meeting for that reason - although why it
should have allowed it to convene under these circumstances , only to
terminate it, is not apparent - it now speculates that the riotous scene later
that afternoon (about to be described) was probably the result of its
termination of that meeting and therefore indicative of a groundswell among
(Continued)
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
400, more than half women , according to Respondent
General Manager Feinberg - assembled in the plant
cafeteria in midafternoon during paid worktime . Present
also were representatives of Respondent's management-
supervisory hierarchy and team, and also Teamsters Local
806 President Calagna and his Spanish -speaking aide
Gonzalez. Standing on a table , Gonzalez started to make a
speech describing the advantages of affiliation with Team-
sters Local 806 ; but when Gonzalez added that his Union
had been informed by the Board or the Labor Department
that "bargaining should stop" 140 and that they were there
to find out whether the workers "were willing to back
them," he was uproariously shouted down - in the words
of Fernando Aguirre , a credible witness , "All of the workers
started shouting that we were not going to back them,"
"Get [Local] 806 out of the plant ," and "We wanted an
election ." 141 At this , Gonzalez or Calagna - who had
joined Gonzalez at the table - indicated that employees
who did not want to listen or who are "not interested"
should leave . Amidst a riotous scene , with "everybody ..
talking and yelling at the same time " and demanding "an
election" or "legal elections to see which union was going to
represent the workers," a woman was punched in the
belly 142 and another , according to Feinberg, in nose, and
the bulk of the employees streamed out of the cafeteria,
leaving perhaps only 30-35 remaining there . After the great
bulk of the employees were out of the door , one of the
employees remaining inside (described by Aguirre as an
"American lady who works on the second floor" 143)
attempted to close the door , but when another employee
struggled to hold the door open the "American lady"
grabbed him by the hair . In the ensuing disturbance,
General Manager Feinberg attempted to come to the
assistance of the "American lady" in closing the door. At
this point, the mass of employees who had left and were
gathered in the corridor outside of the cafeteria surged
back, shouting - in Spanish and English - "[Local] 806
out!" Local 806 Official Gonzalez was now attempting to
bar them from reentering the cafeteria , without success.
Jose Peguero , an elected member of the District 65
employees organizing committee , among the employees
who had surged back into the cafeteria , leaped onto a table
and emphasized to the employees that since Teamsters
Local 806 did not represent a majority of the employees it
the employees in favor of Teamsters. But under the circumstances shown,
equally warranted would be the contrary speculation that the riotous scene
was the product of employee indignation over that recognition and its
attempted implementation. I decline to indulge in speculation in either
direction.
140 According to General Counsel witnesses Bueno and Pe , Gonza-
lez made it a point to remark that Local 806 would already have obtained
hospitalization, vacation, and other benefits for the employees if the
governmental authorities - i.e., the Board - had not interfered by notifying
his Union to stop bargaining . This testimony by Peguero , an elected member
of the District 65 employees organizing committee , at the time, is corrobo-
rated by Bueno and stands uncontradicted.
141 Inasmuch as Gonzalez was not produced to testify , the foregoing
testimonial account by Aguirre , a credible witness, stands uncontradicted by
him.
142 Mary Arlington (the American lady), according to Feinberg.
113 Identified by other witnesses as Mary Arlington , a Teamsters Local
806 protagonist . She did not testify here.
1 Bueno testified that, white he and Peguero were on the table thus
exhorting fellow employees, General Manager Feinberg instructed them to
punch in your card ... get out," but that they continued to speak since
they felt they had the same right to do so as the Teamsters advocates.
was not the representative of the bargaining unit. To a
chorus of "Out 806" cries, Peguero emphasized the need for
an election. Peguero's fellow employee, Rafael Bueno (also
an elected member of the District 65 employees organizing
committee at this time), who had joined Peguero on the
table, also pointed out that Local 806 could not bargain for
the unit without representing at least a majority of the
employees, and that an election was desirable , adding that
"if an agreement [is] signed without having elections ... it
[is] not a good procedure.... The company should allow
the people from District 65 to go in to the company in the
same way the people from Local 806 did , because at no
moment the 806 was representing us, because many
workers who had given other signatures to 806 , including
myself, did it expecting elections." 144 I reject the testimony
of Local 806 witness Eddie Sanabria (regarding whose
demeanor and credibility I have already had occasion to
comment in another connection), who, while characterizing
the December 7 episode (at which he testified he was
present) as a "scandal," insists that he heard only "shouting
noise but no words." (Seemingly according to Sanabria,
alone, Caning and Aguirre were also on the table with
Peguero and Bueno, shouting "noise but no words ." In view
of the overwhelming evidence to the contrary , perhaps
Sanabria was, in a Freudian sense, deaf to words he did not
wish to hear.) According to Respondent General Manager
Feinberg, who heard employees yelling "Out 806," employ-
ee Mercedes Rivera had also taken to the table with
Peguero and Bueno.
General Manager Feinberg , with the assistance of Per-
sonnel Manager Morales, attempted to calm the mass of
shouting employees who, according to his description of the
stormy scene, were "angrily" yelling back and forth at each
other "Down with 806," "Down with the Company," and
"Go f--- [your]self and get the hell out of [t]here."
Plant Manager Petrera , engaged in the same endeavor,
requested Aguirre (a rank-and-file employee) to spread the
word that there was to be no fighting on the premises.
Personnel Manager Morales, who also was there, an-
nounced that all employees should leave the plant , without
the necessity for punching out their timecards . This was
close to quitting time, and most of the employees thereupon
left; all were paid for a full day's work .145 The witnesses'
description of this tumultuous episode indicates that it was
145 Before leaving, Peguero attempted to return to his work area for his
belongings, but was intercepted by General Manager Feinberg with several
other executives and supervisors. Feinberg or Morales directed Peguero and
Bueno (who was with him) to "leave or I call the police ." This provoked
Bueno to spit on the floor at or near Kaye 's feet ; when he was directed to
clean it up, he refused . This was on Friday afternoon. When Peguero and
Bueno returned to the plant on the following Monday morning (December
10), not knowing whether or not they had been discharged by Feinberg on
the previous Friday afternoon, they observed policemen outside of the office
and elsewhere in the plant, and were instructed to wait in Personnel Manager
Morales' office. There, in the presence of Foreman Domingo Negron
(serving as interpreter), Foreman Felipe Rivera , Morales, and Local 806
President Calagna - with police outside - Feinberg stated that he regretted
the episode of December 7, where among other things a pregnant woman
had been mauled , and added that, "I'm [Feinberg ] going to take you back,
but I want you to work and not get mixed in that union mess ... I'm going
to give you back to your foremen ... so you would be under their
surveillance." To this, Bueno and Peguero pointed out that Teamsters Local
806 did not represent them or the unit employees , that their affiliation was
with a union they preferred (i.e., District 65), and that this constituted the
HARTZ MOUNTAIN CORP. 523
by the merest touch and go that a full-scale not was
averted.
It is conceded by Respondent's own witnesses 148 that,
during this December 7 cafeteria assembly, Respondent
Vice President Kaye, General Manager Feinberg, Plant
Manager Petrera , Personnel Manager Morales, and its
Foremen Supervisors Negron , Santiago , Stokes, and Ur-
daneta were present . According to Feinberg, he had
instructed supervisors to remain there "to control the
crowd." Feinberg concedes that to his observation there
was opposition demonstrated to Local 806 at this assem-
blage and that he heard employees there yelling , "Out 806!"
Respondent Vice President for Industrial Relations
O'Connor, who was not present at the December 7
happening, nevertheless indicated he was aware that there
was not only expression of employee opposition to Local
806 there , but "chaos"; presumably he was well informed
by his colleagues and subordinates.
While Respondent ascribes the December 7 cafeteria
melee to employee dissatisfaction over the Employer's slow
pace in implementing its recognition of the Teamsters a few
days earlier , under the described circumstances and in view
of the entire background a perhaps no less plausible
explanation for the melee is employee chagrin and resis-
tance over having the Teamsters imposed upon them to the
exclusion of another union of their choice , or without an
election . Thus, Respondent 's Feinberg swears in his Janu-
ary 31, 1974 , prehearing affidavit: "I believe the meeting [of
December 7 ] . . . was called by the people themselves. The
806 people didn't call it, because they were called down to
break it up, and people started coming to the cafeteria
before 806 people arrived" (G.C. Exh . 144). (But by the
time Feinberg signed his July 22 , 1974, affidavit , Feinberg
seed of the "conflict." Peguero was then returned to work but reassigned or
transferred from his former job (on "Line 26"), without salary change, to
repacking damaged merchandise under Foreman Domingo Negron. Later
that morning, Peguero was discharged under circumstances described below
(1I, B, 1, infra). As for Bueno, who in essence corroborates the foregoing
account of Peguero , he had been terminated a few days before the described
December 7 cafeteria scene but had been returned to work within a few days
(on December 6 or 7); however, after his return to work on December 10 -
also, like Peguero , to a different job, in Bueno's case repacking merchandise
under Foremen Felipe Rivera and Ildefonso Urdaneta - he was discharged
on December 27 or later under circumstances also described below (II, B, 2,
infra).
146 See, e.g., Femberg's July 22, 1974, affidavit (G.C. Exh. 145), con-
firmed by Morales in his like affidavit (C.P. Exh . 9). In view of these sworn
statements against interest (as well as other credited testimony relating to the
December 7 scene) and his own testimony to the contrary at the instant
hearing, I do not credit the contradicting sworn statement of Respondent
Vice President Kaye in his January 28 , 1974, prehearing affidavit that "No
management people were in the meeting (G.C. Exh. 137). This is but another
example of what might be regarded as a penchant for misleading with words
or a high degree of carelessness with candor and accuracy.
i4? The "January 3 ," 1974, date as the date the "Two separate contracts
were executed" is quoted from Kaye 's July 22 , 1974, affidavit (G.C. Exh.
138). However - yet again , in a seemingly endless parade of contradictions
under oath - Kaye had sworn in his January 28 , 1974, prehearing affidavit
here that "As of today , the Co . has not signed a contract with Local 806. The
Co. is dealing with 806 , negotiating for a contract . Since the first meeting on
Monday, Dec. 17, there have been 2 meetings ; we are now in active
negotiations" (G.C. Exh. 137). These sworn statements can hardly be
considered an inadvertence ; indeed , they are repeated later in the same
affidavit, where Kaye again swears that "No contract has been signed.... .
In my view, such factual contradictions, particularly in statements under
oath to governmental authorities , like others elsewhere pointed out herein -
are substantial and serious, should be seriously regarded , and merit poor
marks for their affiant's credibility if, indeed , not more serious consequences.
was saying, "It was my impression that the meeting had
been called by the Teamsters employees committee." G.C.
Exh. 145.)
e. Developments subsequent to December 7
Subsequent to the described events, Respondent met with
Teamsters Local 806 representatives and members of
Vazquez' "committee" perhaps a few times in December
(December 17 and 21 ; possibly also on December 31); and
..on or about January 3 ," 1974,147 executed two separate
"collective agreements" - splitting the agreed-upon bar-
gaining unit recognized in the November 30 Recognition
Agreement into two separate bargaining units - one for
"Production Workers" (G.C. Exh. 3A), and the other for
"clerical and maintenance" employees (G.C. Exh. 3B).148
These "collective agreements ," each signed by Kaye with
Calagna and each identical (including blank spaces - e.g.,
no workday hours specified) except for an appended wage
schedule , were also allegedly executed on the same day -
January 3, 1974, but effective by their terms on December
1, 1973 , each reiterated Respondent 's recognition of Team-
sters Local 806 as exclusive collective -bargaining represen-
tative of its employees as of December 1, 1973, and each
required all of the unit employees to become members and
maintain membership in Local 806 as a condition of
continued employment (G.C. Exhs. 3A and 3B), and each
agreement required that all initiation fees, dues, and
assessments of Local 806 be deducted by Respondent from
its employees ' wages - such "checkoffs" to be "irrevocable
for a period of more than one (1 ) year, or beyond the
termination of this agreement , whichever occurs sooner
[sic]" (id) 149 Each agreement further stipulates , on behalf
of the employees, that "there shall be no strike , slowdown,
148 Kaye testified on direct examination that no document was offered or
signed for separate recognition of clerical and maintenance employees -
which he, as well as Calagna (but not O'Connor), asserts occurred at the
December 17 negotiating meeting - and that no Local 806 cards were
displayed or offered to establish the credentials or authority of Local 806 in
that regard. (On cross-examination, however, Kaye made yet another about-
face by stating that he was "shown" such cards , but he acknowledged that
they were neither counted nor checked.)
O'Connor conceded here that not only did he not count or even look at
any alleged Local 806 cards for clerical and maintenance employees, but he
was unaware of exactly how many employees the Company had in those
categories ; but even according to O'Connor's testimony and figures, he
extended "recognition" to Local 806 as a seemingly or potentially
nonmalority representative of those employees since (according to
O'Connor's testimony) the clerical and maintenance unit consisted of
"approximately 35 people" and Local 806 allegedly claimed to have only
"about 15" cards. O'Connor also conceded on the record at the hearing that
- contrary to his July 22 , 1974, affidavit (G.C. Exh . 143), part of paragraph
29 of Kaye's affidavit to that court (G.C. Exh. 138) is not true, and that
O'Connor in effect misled the district court in that Sec. 10(j) injunction
proceeding by failing to state the true facts thereon . Contrary also to his
earlier testimony at this hearing itself, O'Connor swore on cross-examination
that he extended recognition to Local 806 for a "clerical and maintenance
unit" not on December 17 but on December 21.
In view of admissions of O'Connor and Kaye contrary to interest, I do not
credit Calagna's testimony that the Local 806 alleged cards for clerical and
maintenance employees were "counted" by Respondent at either of the
foregoing meetings.
149 After first testifying that Respondent at no time enforced this
Teamsters compulsory membership ("union security") requirement or
attempted to enlist employees into such membership , Kaye - again after
further questioning - conceded that his Company did place notifications
into its employees' pay envelopes in January 1974 that they were required to
(Continued)
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stoppage, cessation of, or interference of work" for the
duration of the contract (art. XIX in each). Each agreement
also is for a period of 3 years (to November 30,1976), with a
year-to-year automatic renewal provision thereafter (art.
XXVIII in each).
After the execution of these agreements in January 1974,
Juan Vazquez became chief shop steward for Local 806.
Also in January, he, together with his aides Ocana,
Sanabria, and Peneherera , received wage increases in
excess of those called for by the Local 806 collective
agreement 1511 These wage increases for these four are
extraordinary not only in that they were over and above
those required by the new collective agreement they had so
diligently assisted in bringing about , but extraordinary in
another respect - they were not even known to General
Manager Feinberg , according to his own testimony.
In my view, the overwhelming mass of substantial
credible evidence clearly indicates , and accordingly upon
the foregoing subsidiary findings and the record as a whole
it is found, that Teamsters Local 806 member-
ship/representation authorizational designation cards con-
stituting the alloged basis for Respondent 's recognition of
that Union, as the exclusive collective -bargaining represen-
tative of its employees in a unit or units appropriate for
collective bargaining, were regularly and continuingly
procured, with Respondent's knowledge and approbation,
on Respondent 's Jersey City plant work premises -
including its personnel office there - on paid working
time, with the aid, encouragement , assistance, and support
of Respondent and its officials, supervisors , and agents, and
in some cases directly by or with direct participation of an
official and agent of Respondent ; and that the described
membership/recognitional drive or campaign of Teamsters
Local 806 was thereby tainted with substantial impropriety
and illegality , including aid, assistance, and support from
Respondent Employer.
f. Extent of Teamsters Local 806 support among
unit employees
Although, in view of the foregoing findings regarding the
tainted campaign and cards constituting the alleged basis
upon which Respondent recognized and entered into
agreements with Teamsters Local 806 as the exclusive
collective-bargaining representative of its employees, no
determination is essential as to whether or not that Union
held valid cards from an arithmetical majority of Respon-
dent's employees , nevertheless, in view of allegations in the
complaint that it did not and substantial litigation of that
issue at the hearing , we proceed to an abbreviated recapitu-
lation of the arithmetic of the situation.
Join Local 806. It is conceded that Respondent also made Local 806 dues
deductions from its employees' pay until halted by a preliminary injunction
issued by Chief United States District Judge Whipple in August 1974.
Although the United States Court of Appeals for the Third Circuit denied
Respondent's application to stay enforcement of that injunction pending
appeal , it subsequently ordered the injunction to be vacated without
reaching the merits of the case.
150 In Vazquez' case , according to his testimony , in excess of 50 cents per
hour on top of the 35 cent -per-hour increase required by the collective
agreement . Ocana ascribed his increase to an alleged "new work category"
which had not existed before and is undefined in the new collective
agreement , and which he allegedly could not "exactly ... remember"; he
volunteered, however, that "You see when the workers cooperated with them
To begin with, benchmarks or moorings involving such
necessary factors as the number of employees in the unit or
units on contested dates have been supplied by counsel
through stipulations and statements of position (ALJ Exhs.
2a 2h, 3a-3c, 4, and 5) in consequence of an order ALJ
Exh. 1) issued by me after careful prehearing and early
hearing exploration with counsel . That order (ALJ Exh. 1),
entered on consent , required , among other things, (1) the
furnishing of Respondent 's payrolls and payroll data for
November 30 - December 17, 1973, with provision for
access to books and records of original entry; (2) the listing
of all employees in the bargaining unit or units on the
foregoing dates; or, in lieu thereof, statements of conflicting
positions or contentions in regard thereto ; (3) the furnish-
ing of copies of all Local 806 cards relating to all unit
employees, with provision for access to all original cards;
(4) the furnishing by General Counsel of alphabetized lists
showing each and every unit employee for whom there is a
Local 806 card or cards , together with a dear and concise
statement as to General Counsel's position with respect
thereto - i.e, whether the card may be received into
evidence without challenge , or the alleged infirmity or
infirmities invalidating such card or cards; (5) thereafter,
the return by Respondent and Local 806 of a copy of such
lists of General Counsel (item 4, supra), with the positions
or contentions of Respondent and/or Local 806 with
respect thereto ; and (6) permitting the contest or impeach-
ment of any Local 806 card. According to those stipulations
and statements of position, as subsequently modified,
supplemented, or otherwise satisfactorily established upon
the record.
As of November 30, 1973, there were 441 employees in
Unit I (production employees) and 34 employees in Unit II
(clerical and maintenance), totaling 441. It is emphasized
that Respondent in fact recognized a single unit of "all"
employees on November 30. The breakdown into Unit I
and Unit II is indulged in merely because of Respondent's
splitup of the originally recognized unit into those two parts
subsequently in December (December 17 or 21 allegedly)
under the circumstances shown, and thereby to avoid a
duplicative and circumlocutious analysis of the arithmetic
of the situation.
As of December 17, 1973, the number of employees in
Units I and II remained the same . December 17 was
specified in the order (ALJ Exh. 1) and used as a
benchmark by all counsel because at all times it had and
continued to be Respondent's consistent contention - in
affidavits of its Vice President Kaye to the United States
District Court and otherwise , as also the consistent position
of its counsel - that that was the date of its alleged
they cooperated with the workers too." Sanabria boldly denied receiving any
extra increase , beyond that called for by the new collective agreement (35
cents per hour), insisting he received only "just what was given to the other
workers that were there," until he was confronted with his personnel file
showing that on January 23, 1974, he received an additional, extraordinary
25-cent hourly increase (not called for by the new collective agreement) upon
authorization of Gilbert Kaye retroactively to December 1, 1973; faced with
this, Sanabria pretended a sudden recollection of it, with a thoroughly
incredible "explanation" of why it had allegedly slipped his nand . Peneher-
era conceded also receiving the extraordinary increase in January 1974.
Vazquez had been in Respondent 's employ since April 19, 1972, Ocana since
October 19, 1970, Sanabna since April 29,1969 , and Peneherera since April
10, 1973 (G.C. Exh.113).
HARTZ MOUNTAIN CORP. 525
recognition of Teamsters Local 806 as the bargaining
representative for Unit II (clerical and maintenance em-
ployees). It was not until Respondent's vice president for
industrial relations, O'Connor, testified, late in the hearing,
during Respondent's defense, that O'Connor insisted that
that date was wrong and that the alleged recognition of
Unit II really occurred on December 21. Since no discrep-
ancy in arithmetic has been suggested by counsel as arising
from this alleged 4-day difference, and in view of Respon-
dent's formal adoption of position involving December 17
as its benchmark date, as well as the possible prejudice and
unconscionable expense and delay which might ensue from
any such seemingly unjustifiable "change" at the 11th hour
of a protracted litigation ranging close to a year, and,
finally, Respondent's failure to establish or claim prejudice
or materiality, December 17 is continued here to be
regarded as the benchmark date for arithmetical purposes
in dealing with Respondent 's contention as to its alleged
"separate" recognition of Unit II.
These figures are material only assuming arguendo that
(1) Respondent's "splitup of the overall unit recognized by
it on November 30 (G.C. Exh. 2) was proper, and that (2)
Respondent recognized Unit II (clerical and maintenance
employees) on December 17.
With relation to the 441 employees (and 221 majority) in
the overall unit recognized on November 30, General
Counsel stipulated into evidence 192 cards (187 in Unit I
and 5 in Unit II) 151 as of that date; plus an additional 5 in
Unit II as of December 17. This, of course, is short of a
majority in either the overall unit recognized on November
30, or in Unit I or Unit II which Respondent now claims it
recognized on December 3 (Unit I) and on December 17
(Unit II).
Although General Counsel (and the Charging Party,
Distributive Workers District 65) stipulated into evidence
only a total of 192 Teamsters Local 806 cards as of
November 30, and 5 more Unit II cards as of December 17,
he conceded and represented upon the record that he had
more Local 806 cards in his possession, received from that
Union in response to his formal written call (G .C. Exh. 127)
for the production of the Local 806 cards at the investiga-
tive stage of this proceeding , prior to issuance of the
complaint herein. General Counsel certified in writing (ALJ
Exh. 2a) as well as orally upon the record that he has
supplied into this record all of the Local 806 cards which
came into his possession , totaling 393,152 all of which he
accounts for (ALJ Exhs. 2b-2h, and the duplications there
shown) as follows, and concerning which my determina-
tions and findings have been added in columns 4 and 5 of
Figure 1: [omitted from publication ].
The results of the counts set forth in Figures 2 and 3
[omitted from publication] are tabulated in Figure 1, supra.
From these it will be seen, as shown on Figure 4, that the
number of valid Teamsters Local 806 cards upon which
Respondent allegedly predicated its recognition of that
Union - whether it occurred on November 30 for an
overall unit or for Unit I, or on December 3 for an overall
unit or for Unit I, or on December 17 for Unit II - fall
substantially short of the number necessary to constitute a
majority in any case:
Figure 4:
Local 806
Card Strength
1973 C o u n t
Date Unit (Cards/Unit Emps.) %
l1-30 Both 198/441 44.9
11-30 I 193/407 47.4
11-30 II 5/34 14.7
12-3 - Both 195 a/ /442 44.1
s/I.e., November 30 overall card count (198)
less 3 (Juan L.. Rivera, Fernando Newname
[Newmane], and Benjamin Carraballo), as
shown on AL7 's Exhs. 3c and 2b.
151 By stipulation , Robert Buxton and Jose Camino were added to the
original list of 185 Local 806 cards stipulated into evidence (ALJ Exh. 2b).
Since Camino had been included on a separate list of Unit II employees
containing six names (ALJ Exh. 2d), his transfer to the Unit I list reduced the
Unit II list from 6 to 5.
152 Local 806 President Calagna asserts , however, that he turned "more"
cards over to General Counsel. Thus, Calagna testified that he made two
trips to the Newark Regional Office of the Board in January 1974, each time
with his aide Gonzalez ; that on the first occasion he delivered 380 cards to an
unidentified individual , and on the second an additional 96 cards, for a total
of 476 cards (or more than the number of employees in the total unit or
units). Calagna concedes that as of the time when these cards were delivered
by him to the Regional Office he had still not checked the dates or signatures
on them . While Calagna swears he thus in January 1974 turned over "all" of
the Local 806 cards of Respondent's unit employees , he obtained no receipt
for them, at the same time asserting that his Union maintained no record of
the cards it received or turned over, other than a list for "some" of the cards
- Calagna says "around the two hundred mark" - turned over to the
Board ; but even that alleged list has, unaccountably , not been produced
here. While Calagna testified that in a July 1974 affidavit to the district court
(G C. Exh. 136) he stated that 31 cards turned over by hum to the Regional
Office are "unaccounted for and missing," and that he claims to have turned
over 476 while according to him the Regional Office claimed it received only
445 cards, he concedes that he has made no attempt to ascertain whose
alleged cards are "missing ." Nor does he appear to have sufficient awareness
of the nature of those alleged cards to know they do not contain, for example,
duplicate cards for the same employees already included in the other cards.
In evaluating this testimony of Calagna, it is necessary at once to consider
it within the framework of what have already been shown to be his
recollectional and other major testimonial shortcomings in other respects.
There is also a degree of incredulity on my part that his Union maintains no
meaningful records , and that his Union itself, let alone his Union with the
assistance of Respondent and of Vazquez and his interested group , could not
reconstruct a substantial portion if not all of so large a mass of allegedly
"missing" cards . Within this frame of reference , even though Calagna's
testimony is not contradicted head-on, I am unprepared to credit it as he here
delivered it relating to the allegedly "missing" cards. Neither Local 806 nor
Respondent asserted as a fact that there were additional Local 806 cards in
the statement of position (ALJ Exh . 5) filed by them in response to my order
regulating proof herein (ALJ Exh. 1) entered on consent. Furthermore,
although Calagna testified that he had made Xerox copies of "most" of the
cards before turning them over to the Regional Office , unaccountably he
failed to produce any such copies here. Moreover, Gonzalez - who could
readily have corroborated Calagna 's assertions in this regard if accurate, was
- also without explanation - not produced to testify . Finally, as to the
alleged 31 cards now said to be "missing," there is in any event no proof as to
whose they, or any of them , allegedly were, or as to when they were allegedly
executed , nor as to whether the alleged signers were even employees of
Respondent ; nor was even any secondary evidence submitted with regard
thereto. Under the circumstances , fortified by testimonial observations, it is
not credited that they existed nor can it be assumed or speculated that they
constituted validly executed cards to be counted toward any alleged
Teamsters Local 806 majority claimed here.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1973 Count
Date Unit ( Cards/Unit
-
Drips.) 8
12-3 I 190 1 /408 46.6
12-3 II 5 - 10/34 14.7-29.4
12-17 II 10/34 29.4
fl.e., November 30 Unit I card count (193),
less 3 enumerated in foregoing fn. a.
In view of the foregoing, it is accordingly found that
Respondent's recognition of Teamsters Local 806 herein
was not based upon and was without knowledge on
Respondent's part as to whether that Union in fact
represented a majority of employees in a unit of Respon-
dent's employees appropriate for collective bargaining; that
it has been satisfactorily shown , under all of the circum-
stances and the record as a whole , that Teamsters Local 806
did not represent a majority of Respondent 's employees in
a unit appropriate for collective bargaining on any alleged
date of such recognition ; that General Counsel has under
the circumstances shown met his burden of proof of
establishing that Respondent 's recognition of Teamsters
Local 806 was not based upon a demonstration by that
Union that it represented an uncoerced majority of the
employees in any appropriate bargaining unit of Respon-
dent's employees; and that Teamsters Local 806 at the time
of any such recognition did not in fact represent such
majority.
4. Resolution and rationale
a. Employer assistance and support to recognized
Union (Teamsters Local 806)
As has been shown , a considerable volume of credited
testimony - the cumulative effect of which cannot be
ignored or minimized - has been adduced establishing the
assistive and supportive circumstances under which Re-
spondent's recognition of Teamsters Local 806 occurred
here.
Following decertification of Retail Clerks Local 888 in
May 1973 , that Union lost little time in mounting a
renewed, substantial organizational drive , under the eyes of
Respondent's managerial and supervisory officials , result-
ing in its filing with the Board 's Newark Regional Office
over 300 bargaining representational authorization cards -
the bulk dated in July and August, and almost 70 in
November (1973) - after that Union had been rebuffed by
Respondent in its August offer to demonstrate its majority
strength through an authenticative check of those cards.
Running a somewhat parallel course with the Retail
Clerks Local 888 re-organizational effort was the massive
and extensive , full-scale organizational campaign conduct-
ed by Distributive Workers District 65 - also under the
eyes of Respondent's managerial as well as supervisory
153 See also NLRB. v. Hunter Outdoor Product., Inc., 440 F.2d 876, 879
(C.A. 1, 1971); NLRB. v. Jan Power, Inc., 421 F.2d 1058, 1063 (C.A. 9,
1970). "A[n ] employer may properly be held responsible for'interfering' in
the affairs of a union because of participation by his supervisors even though
such participation was not expressly authorized or ratified ." Local 636 of the
United Association of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, AFL-CIO [Detroit
Association of Plumbing Contractors] v. NLRB., 287 F.2d 354, 360
personnel - resulting in its like deposit with the Board's
Newark Regional Office of between 300 and 350 bargaining
representational authorizational cards (almost 300 obtained
in May and June, some 30 in August, and additional cards
in September), also following total rebuffs by Respondent
to even meet or talk with that Union , which had also
offered to submit its cards to an impartial validating cross-
check as to their genuineness as well as quantity. Any
possible doubt as to Respondent 's knowledge even at its
managerial level, as to these continuing organizational
activities, through the fall and even through November -
while it would be unwarranted - was laid at rest by the
admission here by Respondent Vice President for Industrial
Relations O'Connor - testifying as Respondent's own
witness - that he was well aware of these activities through
his "pipelines in the plant," and by the candid testimony of
General Manager Feinberg (also its own witness) that he
had reported that activity to Respondent Vice President
Kaye, in overall charge of-that plant and that "I [Feinberg]
tell you, he [Kaye ] saw it."
When, however, Teamsters Local 806 was introduced
into the picture - and there is evidence that this was done
at least with Respondent 's active collaboration - in Stark
contrast to the rebuffs handed to Retail Clerks Local 888
and Distributive Workers District 65, each of which had
explicitly offered to establish its bargaining authorizational
credentials through an impartial verifying card check,
Teamsters Local 806 was speedily recognized without even
any semblance of a card check, on the heels of a lightning
"campaign" featuring not only widespread card solicitation
by employees on Respondent's premises during company-
paid working time , with the knowing tolerance of Respon-
dent as credibly confirmed by one of its own supervisors at
the time (Negron), but also featuring card-solicitation in
Respondent 's own personnel office not only by an employ-
ee permitted to carry on those activities there but also card
solicitation personally by and with the direct participation
of Respondent's personnel manager. It is, of course, basic
industrial relations law that an employer who assists in the
solicitation of such cards violates the Act and vitiates any
recognition of a union involving such an employer -conta-
minated solicitation process . Russell Motors, Inc., 198
NLRB 351 (1972), enfd. as modified 481 F.2d 996 (C.A. 2,
1973), cert. denied 404 U.S. 1017 (1972).153
The highly suspicious and improper circumstances of
Respondent's precipitate recognition of Teamsters Local
806 have likewise been shown - including the nature of its
self-designated employees' "committee" under Juan
Vazquez, including among its membership even supervisory
personnel ; 154 and Respondent 's failure to so much as count
or examine , much less verify the authenticity of, the "cards"
tendered to it by Local 806, or whether they were duplicate,
dual, or even blank cards .155 The Supreme Court has taken
occasion to point out that "If an employer takes reasonable
(C.A.D.C., 1961). See also N.LRB. v. Park Edge Sheridan Meats, Inc., 323
F.2d 956 (C.A. 2,1963).
154 Unlawful employer "interference" has been predicated upon supervi-
sory membership (as herein), without more, upon such an "employees
committee." Local 636, Plumbers v. NLRB., supra,, Nassau and Suffolk
Contractors 'Association, Inc., 118 NLRB 174 ( 1957).
155 That "dual cards" - i.e., cards of employees who have executed
similar cards for another union or unions - are not to be counted toward a
HARTZ MOUNTAIN CORP.
steps to verify union claims . . . he can readily ascertain
their validity and obviate a Board election . We fail to see
any onerous burden involved in requiring responsible
negotiators to be careful , by cross-checking, for example,
well-analyzed employer records with union listings or
authorization cards ." International Ladies' Garment Work-
ers' Union, AFL-CIO [Bernhard-Altmann Texas Corp.] v.
N.LR.B., 366 U.S. 731, 739-740 (1961 ). This uncalled for
precipitateness of recognition and proceeding with contract
negotiations and execution was accomplished in the face of
registered mail protestations from District 65 to both Local
806 and Respondent, and also registered mail notification
to Respondent from the Board 's Regional Office that a
charge had been filed and that the situation was under
official investigation . Respondent 's precipitate recognition
of Teamsters Local 806 was also effectuated in the midst of
concurrent organizational activities (as well as representa-
tional status assertions) being carried on, to Respondent's
knowledge, by Distributive Workers District 65 as well as
Retail Clerks Local 888 . Respondent's starkly contrasting
treatment of Teamsters Local 806 - in contrast to its
continuing "stonewall" rebuffs to the other two unions -
may also be regarded as in and of itself assistive and
supportive of Teamsters Local 806 and as an open signal
from Respondent to its employees to affiliate with Local
806 as the union favored by Respondent and the only union
it would accept, regardless of any contrary desires of its
employees. The bona fides of Respondent's assertion that
its recognition of Teamsters Local 806 was based upon the
majority status of that Union is further thrown into sharp
doubt by the concession of its employee and Local 806
arch-Organizer Juan Vazquez that he would not have
sought employer recognition of Local 806 at the end of
November if Respondent had at that time indicated it
would recognize District 65 upon the basis of the more than
300 cards held by District 65 ; as well as by the admission of
Respondent Vice President Kaye that if he had been
dissatisfied with the Teamsters Local 806 health plan at the
time Respondent extended recognition to that Union,
Respondent would not or might not have recognized it even
if it in fact established a card majority. Moreover, in
determining the viability of a "recognition" as exclusive
bargaining representative based upon "cards," the nature
and the language 158 of those cards , as well as the character
of the employee population of the alleged signers in the
bargaining unit, are proper subjects for consideration.
Here, the apparently substantial English illiteracy, as well
as the seemingly modest educational attainments, of the
many employees who testified , while no reflection against
them, also militate against the fairness of counting them
mechanically like wooden ballots or enforcing them me-
chanically like confessions of judgment executed in blank:
As was pointed out in Brancato Iron Works, Inc., 170
claimed "majority," see, e.g., The Drackelt Company, 207 NLRB 447, 451
(1973); Hi Temp Inc., A Division of Beatrice Foods Co., 203 NLRB 753, 756-
757 (1973), enfd . 503 F .2d 583 (C.A. 7, 1974); Inter-Island Resorts, Lid,
d/b/a Kona Surf Hotel, 201 NLRB 139, 142 ( 1973), enforcement denied 507
F.2d 411 (C.A. 9, 1974); Intalco Aluminum Corporation, 169 NLRB 1034
(1968), enfd . in pertinent part 417 F .2d 36 (C.A. 9,1969); Allied Supermar-
kets, Inc ,Al hed Discount Foods Division ,,1691NLRB 927,(1968), and cases
cited fn . 3. In the face of a substantial number of dual membership cards, an
employer may not arrogate to himself the unreviewable power of resolving a
527
NLRB 75, 81 (1968): "In an ordinary case the employee's
signature placed on a standard union card presumptively
establishes his intent to authorize a union to represent him
forthwith - for the card so states clearly. When the card is
completely unintelligible to the employee, there can be no
presumption ... that he meant this or that . It would seem
that in such a case something more is required, either by the
employee of what was said to him at the time and his
understanding of the purpose for signing, or by fellow
employees or solicitors of how they translated or explained
the card to him before its acceptance in writing ." See also
Gate of Spain Restaurant Corporation, 192 NLRB 1091
(1971).
There is also the matter of the substantial pay raises -
considerably in excess of those called for by the collective
agreements entered into by Respondent with Teamsters
Local 806 after its recognition of that Union - to its
employees serving as the efficient sparkplugs for the
lightning Local 806 blitz - Vazquez, Ocana, Sanabria, and
Peneherera - which smack of rewards for services ren-
dered in helping to esconce a union of Respondent 's choice.
The record as made may fairly be considered to reflect a
clear preference and desire on Respondent's part for
Teamsters Local 806, instead of and indeed if possible to
the exclusion of District 65 or Local 888, as the "exclusive"
collective-bargaining representative of its employees - an
objective attained by Respondent in the manner described,
thereby in effect imposing its will on its employees and
selecting "their" union for them. Although unnecessary and
in an absolute sense perhaps impossible to determine its
true cause, the near riot in the plant cafeteria on December
7 - on the heels of Local 806 recognition - as a
manifestation of the degree of employee rancor over what
was being perpetrated upon them, may by no means be
dismissed out of hand as fanciful.
Respondent argues that since the Local 806 cards are
"late?" in date than those of District 65 and of Local 888,
the Local 806 cards only should be counted and the others
disregarded. There are a number of answers to this
contention. To begin with, not all of the Local 806 cards are
"later" than the others; as shown, for example,, almost 70
Local 888 cards are dated in November. Furthermore, there
are substantial - hundreds - of cards of the other two
unions dated reasonably prior to then, and those cards may
hardly be regarded as stale as a matter of law. No showing
whatever has been made - and a finding based upon
speculation or conjecture could not stand - that the
hundreds of memberships evidenced by documents in
evidence (in the case of District 65, cash receipts as well as
"cards"), many as late as November - had expired or were
no longer current. Under the circumstances, a very substan-
tial number of employee memberships/bargaining authori-
zational designations in and to District 65 having been
real question concerning representation - otherwise he would be undertak-
ing powers vested by Congress in the Board, if, indeed , not assuming to
exercise powers superior to those of the Board . Cf. Epsilon Fishing Co., Inc.
d/b/a M/V Denise Marie, 198 NLRB 918 (1972), enfd. 483 F.2d 952 (C.A. 9,
1973). Upwards of 100 of the Local 806 cards here appear to be dual cards
(Resp. br.).
156 It is observed that all of the cards of Teamsters Local 806 (as well as
those of Distributive Workers District 65) are in English, whereas a
substantial proportion of those of Retail Clerks Local 888 are in Spanish.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
established to have been paid for in futuro (by three
volumes of cash register receipts in evidence - G.C. Exh.
15), it is to be presumed that they continued to be in effect,
in the same manner as other membership subscriptions
paid in advance and unrevoked . In the absence of an
unequivocal contrary showing, it is to be presumed that at
least those paid memberships in District 65 were still in
effect at the time of Respondent's recognition of Teamsters
Local 806 .157 Furthermore, if District 65 already had a
majority of cards - which, as shown, it had formally
offered and stood ready to demonstrate - what need was
there for it to obtain more , or to keep updating those it
already had at hand, or to keep reiterating (as indeed,
however, it reasonably did, as shown above) its recognition-
al demands, having been consistently rebuffed by Respon-
dent? 158 Finally, District 65 (as established by the testimo-
ny of Vice President Julio Mojica) learned for the first time
in mid-November that Teamsters Local 806 was attempting
to organize the unit employees - he could hardly have
known of it before, since it did not happen before then; and
District 65 in short order dispatched registered letter
requests to Respondent as well as to Local 806 to desist
from recognition under the circumstances . Thus, the
activities of Mojica and District 65 spell attentive diligence
rather than default , neglect, laches, or procrastination.159
In view of all of the foregoing factors, the conclusion is
warranted that under all of the circumstances shown it is
not feasible or possible to arrive at a rational or absolute
determination which, if any, of the three competing unions
here commanded the allegiance of a majority of the unit
employees . Under these circumstances it was improper, in
my view, for Respondent to attempt to preempt that
determination in the arbitrary, high-handed, and unfair
manner which it employed . Even if Respondent had the
best-intentioned reasons for being averse to dealing with
District 65 or Local 888 from its point of view, insofar as the
exclusivity of bargaining representation is concerned the
rubric of the Act is designed in terms of employees', not
employers ', desires . "The right of employees to be repre-
sented by officials of their own choice doubtless must
outweigh any principle ofpersona non grata " N.LRB. v.
Signal Manufacturing Company, 351 F.2d 471 (C.A. 1,
1%5), cert. denied 382 U.S. 985 ( 1966).
b. Majority or minority union: the Bernhard-
Altmann principle
All of the foregoing considerations apply regardless of the
number of membership/bargaining designational authori-
zation cards held by Teamsters Local M . Thus, findings
here made concerning Respondent 's assistance and support
to Teamsters Local 806 preceding its recognition of that
Union as exclusive bargaining representative of its employ-
ees render it unnecessary to establish that Teamsters Local
806 was a "minority union" at the time it was recognized,
since Respondent's assistance and support - unlawful
under the Act - is a sufficient basis to require the voiding
of that recognition and the contracts which it spawned. An
employer may not lawfully enter into a contract with, or
subject his employees to exclusive representation by, a
union whose contract support derives from memberships or
bargaining credentials procured with the assistance and
support of the employer or his supervisors , agents, or
privies. Section 8(aX2) of the Act; Russell Motors, Inc., 198
NLRB 351 (1972), enfd. as modified, 481 F.2d 996 (C.A. 2,
1973), cert. denied 414 U.S. 1062. It is thus unnecessary to
establish the precise number of employee membership
cards procured or assisted by the employer in order
mathematically to demonstrate with scientific finality that
with the subtraction of that precisely established number of
cards a majority did not in fact exist . Imposition of such an
onerous requirement for the benefit of one who has violated
so basic a provision of the Act as Section 8(a)(2) would
unduly burden administration of the Act and effectuation
of its declared purposes. Employers desirous of avoiding
the hazards inherent in "card" recognition in a context like
that here may readily do so by arranging for a secret-ballot
election under neutral auspices such as that of the Board.160
We nevertheless enter upon a discussion of the alleged
majority/minority status of Teamsters Local 806 here, in
view of the fact that proof forming a predicate for its
possible application was extensively presented and litigated
at the hearing and has been formidably briefed posthearing,
and in order to avoid further litigation by serving as a guide
to early pacification of the turbulent labor relations among
the contending factions in Respondent 's disturbed plant,
including Respondent itself who would best be advised to
assume and maintain a role of neutrality to the extent of not
erecting roadblocks to its employees' exercise of their free
choice of collective -bargaining representative if they con-
tinue to want one.
Even in the total absence of employer assistance or
support, an employer may not - even in good faith -
recognize a union as the exclusive bargaining representative
of his employees, where that union is not in fact such,
numerically or because of other invalidity in its bargaining
credentials . International Ladies' Garment Workers' Union,
AFL-CIO [Bernhard-Altmann Texas Corp.] v. N.LRB.,
366 U.S. 731, 737-739 (1961); Intalco Aluminum Corpora-
tion, 169 NLRB 1034 (1968), enfd. in pertinent part 417
F2d 36,39 (C.A. 9,1969).
157 It is not intended by the foregoing language to exclude membership in
and bargaining designationsl authorizations to District 65, as well as those in
and to Local 888, which are evidenced merely by valid cards without cash
payment receipts.
159 District 65 is here used as an example , without intent to exclude Local
888. Cf., e.g., Hudson Berlrnd Corporation, 203 NLRB 421 , 423 (1973), enfd.I
1494 F.2d 1200, 1203 (C.A. 2, 1974), cert. denied 419 U.S. 897.
159 It will have been observed , in this connection , that Teamsters Local
806 was recognized by Respondent , without any semblance of card counting
or checking, upon far fewer cards than either of its rivals had consistently
offered Respondent to establish by card check : As of November 30, 1973, the
stipulated number of employees in production unit was 441; Teamsters
Local 806 cards, 198; Retail Clerks Local 888 cards , over 300; Distributive
Workers District 65 cards , 332-350. (It is, of course, not assumed that all of
the alleged card-signers were in Respondent 's employ on November 30.)
180 Within the postdecertification year , non-Board elections are not
precluded. Also, of course, parties desiring a Board-controlled election may
wait out the year, reduced by the time in advance of its expiration when an
election petition may be filed.
HARTZ MOUNTAIN CORP. 529
c. Questions or issues concerning representation: the
Midwest Piping principle
Complicating the matter somewhat is the partial nonac-
ceptance by various courts of appeals of the Board's
Midwest Piping doctrine Midwest Piping & Supply Co., Inc.,
63 NLRB 1060 (1945), under which the Board will not
effectuate a recognition of an exclusive collective-bargain-
ing representative based upon "cards" in the presence of
bona fide conflicting claims by two or more unions, the
Board preferring in such a situation to determine the issue
by secret-ballot election; coupled, in the instant case, with
the further complicating circumstance that the recognition
here described occurred within the postdecertification year
during which the Board may not under Section 8(a)(3) of
the Act conduct an election.
Whether or not, in particular situatiofis meeting with the
favor 181 or disfavor 182 of a particular court of appeals - in
a legislatively intended area of unified national labor law
policy and administration which the Supreme Court
periodically reminds and has recently reemphasized 163 has
been entrusted by Congress to the expertise of the Board,
the fact is that Midwest Piping 164 remains not only a viable
but a vibrant principle165 in the Board's philosophy,166
with no indication by it or intimation from the Supreme
Court that so potent and seemingly reasonable a weapon in
the Board's remedial arsenal should be blunted or
scrapped.167
There is also no doubt that the Midwest Piping principle
would be directly applicable to the situation at hand if the
recognitional issue had not arisen during the postdecertifi-
cational year.168 The Board, with Supreme Court approba-
tion, has long regarded secret ballot elections as a preferred
161 Cf., e.g., N.LR.B. v. Hi-Temp, Inc., A Division of Beat rice Foods Co et
al., 503 F.2d 583 (C.A. 7, 1974); N.LR.B. v. Hudson Berlind Corporation, 494
F.2d 1200 (C.A. 2, 1974), cert. denied 419 U.S. 897; N LR.B. v. Pepsi Cola
Bottling Co., and Brewery Workers Local No. 79, 454 F.2d 5 (C.A. 6, 1972);
Oil Transport Company v. N.LR.B., 440 F.2d 664 (C.A.5,1971); Iowa Beef
Packers, Inc. v. N.LR.B., 331 F.2d 176, 182-184 (C.A. 8,1964); N.LR.B. v.
Aaron Trosch, et at d/b/a Maryland News Company, 321 F.2d 692, 696-697
(C.A. 4, 1963), cert. denied 375 U.S. 993 (1964); N.L.R.B. v. Signal Oil & Gas
Co, 303 F.2d 785, 786-787 (C.A. 5, 1962); St. Louis Independent Packing Co.,
Div. of Swift & Co. v. N L R.B., 291 F.2d 700,704-705 (C.A. 7,1961); Local
483, International Brotherhood of Boilermakers etc. [Standard Oil Co. of
Indiana and Central States Petroleum Union, Local 1151 v N.L.R.B., 288 F.2d
166, 168 (C.A.D.C., 1961), cert. denied 368 U.S. 832.
162 Cf., e.g., Suburban Transit Corp. and H.A M.L Corporation v.
N.L.R.B., 499 F.2d 78 (C.A. 3, 1974), and cases cited at 83 and 89 (fn. 1),
adhering to N.L.R.B v. Swift & Company, 294 F.2d 285 (C.A. 3, 1961). See,
however, fn. 166, infra, and quotation from Circuit Judge Hastie's opinion in
N LR B. v. Air Master Corporation et at (C.A. 3, 1964), infra
163 E.g., Linden Lumber Division v. N.LR.B, 419 U.S. 301, 309-310
(1974); N.LR B. v. Gissel Packing Co., Inc., 395 U S. 575 (1969), passim. And
cf. N.LR.B. v Gullets Gin Company, Inc., 340 U.S. 361, 363 (1951): N LR B.
v. Hearst Publications, Inc., et al., 322 U.S. 111 (1944); Medo Photo Supply
Corporation v N.LR B., 321 U.S. 678, 681, fn. 1 (1944); Virginia Electric &
Power Co. v. N.LR.B., 319 U.S. 533, 539-543 (1943).
164 The philosophy of Midwest Piping is that a union cannot be
considered as the choice of a majority of the employees and therefore
accorded recognition as such in the face of existence of a "question
concerning representation" (QCR) ansing, for example, out of conflicting
unions' claims, massive overlapping or "dual" card signings for different
unions, etc. In such a situation, the Board expects employer neutrality, not
recognition of a contestant, so as to avoid a secret-ballot election. Implemen-
tation of that Board expectation would seem squarely within the area of that
expertise which the Supreme Court has traditionally ascribed to the Board.
165 See , e.g., Airmatics Systems Division of The Mosler Safe Company, 209
NLRB 71 (1974); Traub's Markets, Inc., 205 NLRB 787 (1973), enforcement
denied 506 F.2d 730 (C.A. 3, 1974); Hi-Temp, Inc., 203 NLRB 753 (1973),
enfd. 503 F.2d 583 (C.A. 7, 1974); Suburban Trust Corp., and H.A M.L
Corporation, 203 NLRB 465 (1973), enforcement denied in part 499 F.2d 78
(C.A. 3, 1974), cert. denied 419 U.S. 1089 (1974); Hudson Berhnd Corpora-
tion, 203 NLRB 421 (1973), enfd. 494 F.2d 1200 (C.A. 2, 1974), cert. denied
419 U.S. 897; Epsilon Fishing Co., inc., 198 NLRB 918 (1972), enfd. 483 F 2d
953 (C.A. 9, 1973); Playskool, Inc., a Division of Milton Bradley Company, 195
NLRB 560 (1972), enforcement denied 477 F.2d 66 (C.A. 7, 1973); Andersen
Pharmacy, 187 NLRB 301 (1970).
166 For reasons explicated by Circuit Judge Adams, dissenting in
Suburban Transit Corp. v. N.LRB., supra, at 89, which he indicates the Third
Circuit had thus far ,(Swift, supra) not seen fit to accept in the case of
employer recognition of an incumbent union. (It is to be noted that in the
instant case Teamsters Local 806, recognized by Respondent Employer on
"cards" which it concededly did not even examine, was neither an incumbent
union (Swift, supra) nor a formerly unrepresented unit (Suburban, supra).)
167 In a rational and orderly national labor relations policy, it would be a
travesty to charge illiterate or semiliterate factory workers as here with the
consequences of conflicting views among the Federal circuits as to whether
or not they are in accord with the administrative policies underlying the
Board's Midwest Piping principle, upon penalty of losing all representation
for a year if they wish to oust an incumbent unsatisfactory union, or as an
alternative in effect to place into their employer's hands the selection of their
representative for a period, as herein, much longer than a year. Such a result
cries out for rectification; to the extent it is brought about by judicial conflict
in acceptance of the Board's administration of the Act, the rectification
cannot be said to require legislative intervention. To permit an employer to
recognize - and thus impose upon all employees in a bargaining unit,
perhaps particularly one as large as that here - an employer-favored union
for a period of 3 years when his employees' sentiments are substantially
divided among three unions in active competition, would be an affront to
basic policies of the Act and to its democratic and orderly administration by
the Board. Such a situation is best, and perhaps only properly, resolved by
secret-ballot election within the serene anonymity of a secured polling booth.
Nevertheless, seemingly major uncertainties have arisen in this important
area of the Act's administration because of the seeming unwillingness of
some circuits to defer to the Board's administration of the Act's machinery
for determining, through elections rather than "cards," contested representa-
tion questions; such circuits continuing to maintain, if not broaden,
differences with the Board, in varying degrees of refinement and elaboration,
as to precisely how much of a showing is essential to establish a "real QCR,"
with the Board hewing to its position that the filing of a bona fide
representation petition based upon the required statutory-administrative
"showing of interest" is sufficient to establish a "QCR." Cf., e.g., Traub's
Market, Inc., supra; Suburban Transit Corp., supra; Inter-Island Resorts, Ltd,
d/b/a Kona Surf Hotel, 201 NLRB 139 (1973); Playskool Inc., supra; Peter
Paul, Inc., 185 NLRB 281(1970); Connie Jean, Inc., 162 NLRB 1609 (1967),
Swift and Company, supra But with the foregoing cf. N.L.R B. v. Traub's
Market, Inc., supra, NLRB. v. Inter-Island Resorts, Ltd, d/b/a Kona Surf
Hotel: 507 F.2d 411 (1974); Suburban Transit Corp. v. N.LRB., supra, cert.
denied 419 U.S. 1089 (1975); Playskool, Inc. v. N.LR.B., supra, NLRB v.
Peter Paul, Inc., 467 F.2d 700 (C.A. 9, 1972); E. Abrams v. Carrier
Corporation, 434 F.2d 1234 (C.A. 2, 1970), cert. denied 401 U S. 1009 (1971);
N.LR.B v. North Electric Company, 296 F.2d (C.A. 6, 1961); NLRB. v
Swift and Company, supra.
168 As has already been indicated, nonetheless the statutory election
procedure could have been available within a few months, instead of the
inordinate delay which has instead resulted from the instant litigation with
its promise of indefinite protraction; or, non-Board (e.g., New Jersey Labor
Board, American Arbitration Association, etc.) election procedures could
have been utilized at once.
It should also be noted that since the I-year statutory bar (Sec. 9(c)(3)) to
another election applies only to another election in the same bargaining unit
(or subdivision thereof: Krambo Food Stores, Case 13-RC-57 (1958)), and
does not bar another election within a year in a more inclusive unit
(Robertson Brothers Department Store, Inc, 95 NLRB 271, 273 (1951)), if
Respondent's contention is correct that the traditional unit in its Jersey City
factory did not include maintenance employees and if District 65 was
seeking recognition for a unit including maintenance employees, Respon-
dent's contention that an election for the unit sought to be represented by
District 65 was barred for the year following decertification of Local 888 and
that no QCR could exist within that year for such a unit is incorrect And if
Respondent recognized Teamsters Local 806 as bargaining representative of
(Continued)
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
modality, in contradistinction to "cards," for determining
employees' true sentiments concerning their representation
deslres .189 To say, as has been suggested here , that unless
an employer may, on the basis of "cards, 11170 recognize one
of a group of rival unions, his employees will be deprived of
the benefits of union representation, has a hollow ring and
is utterly wrong. For one thing, it presupposes that the
question concerning representation cannot more properly
(or as speedily) be determined by secret-ballot election. It
also implies that the employer is the one to "vindicate the
rights of his employees to select their bargaining represen-
tative" (a concept frowned upon by the Supreme Court, in
certain contexts, in Ray Brooks v. N.LRB., 348 U.S. %,
103 (1954), and that it is the employer who should be the
final arbiter of his employees' desires. Finally, it presuppos-
es also that the employees desire representation at all -
likewise a matter that should be decided by the employees
alone in the secure privacy of the polling booth. It would
be a rather shocking perversion of the Act to maintain that
its purposes are served through representation of employ-
ees by an employer-assisted union in the absence of proof
that such a union is acting contrary to the employees'
"best" interests ; or that an employer-installed union is
better than none at all.
Since representation of employees by a labor organiza-
tion under the Act may also take place without an election
(Sec. 9(a); N.LRB. v. Gissel Packing Co., supra), questions
(issues, uncertainties , doubts) concerning representation 171
may also arise in a context where a statutory election for
one reason or another does not or cannot take place. The
postdecertification year is not an "open season" for an
employer to select the union of his choice for employees
upon the basis of "cards" when he is on notice that there
are substantial rivalries among competing unions to repre-
sent his employees . If, in such a situation , the employer
recognizes a preferred competitor, the employer should be
prepared to establish the basis upon which he extended that
recognition and that the recognized union was in fact the
lawful choice of an uncoerced majority of his employees.
(As already pointed out, the Supreme Court in Bernhard-
Altmann, supra, 366 U.S. at 739-740, pointed out that an
employer who wishes to "obviate a Board election" can
"take[s] reasonable steps to verify union claims" and that
no "onerous burden [is ] involved in requiring responsible
negotiators to be careful, by cross-checking , for example,
a new bargaining unit, that likewise would have been unlawful regardless of
whether or not a QCR existed . Cf. General Cinema Corporation and its wholly
owned subsidiary, Gentilly Wood, Cinema, Inc., 214 NLRB 1074 (1974); see
also Graphic Arts international Union; AFL-CIO , v. NLRB, 505 F.2d 335
(C.A.D.C., 1974); Forest Crty/Dillion -Tecon Pacific, 209 NLRB 867 (1974).
169 See, e.g„ NLRB v. Gissel Packing Co., supra; Linden Lumber
Division v. NLRB., supra. Gissel sanctions the Board's administrative
issuance of a bargaining order without the necessity for a statutory election,
where an employer through his unfair labor practices has spoiled the
conditions under which a genuinely fair election may meaningfully be held;
it does not (nor does Linden Lumber, supra) sanction bargaining flowing from
an employer's recognition of an employer preferred union founded upon
cards procured with the employer's assistance and support.
As long ago as 1952, "This Board has long recognized that authorization
cards are a notoriously unreliable method of determining majority status of a
union as a basis for making a contract where competing unions are soliciting
cards, because of the duplications which then occur." Sunbeam Corporation,
99 NLRB 546, 550 (1952). After 13 additional years of experience with
well-analyzed employer records with union listings or
authorization cards." It is safe to say that the Supreme
Court envisioned no such recognition as took place in the
instant case bwhen it wrote that language .) This is not a
turnaround of the normal rule that the General Counsel has
the burden of proof. To be sure he has, and he has met it
here ; Respondent may be viewed as having failed to go
forward with a sufficient showing after General Counsel
established a prima facie case. Cf. Ellery Products Manufac-
turing Co., Inc., 149 NLRB 1388, 1392-93 (1964 ). In this
view - a salutary one, in my opinion, in relation to the
unusual facts here disclosed - to require Respondent to
make such a showing, after the case made out by General
Counsel, is a prophylactic measure , applicable to unions as
well as to employers, to prevent abusive manipulation of
the I -year statutory interregnum following a decertification
election in such a way as to disrupt basic building-block
policies underlying the Act. In concluding that an employer
may under certain circumstances recognize a union upon
the basis of "cards," the Supreme Court appears to indicate
that such a recognition must at least be plausibly based or
else it is a sham "recognition" - it is to be based upon
"reasonable steps to verify union claims" (Bernhard-
Alt-mann, supra, which also, at 738-739, decries the possibility
of placing into "careless employer and union hands the
power to completely frustrate employee realization" of the
basic premise of the Act - free choice by employees of
their bargaining representative if any. In the instant case, as
has been shown , Respondent omitted to take any "reason-
able steps to verify [the] union claims." The "recognition"
under the circumstances established here would according-
ly appear to warrant no deference, authoritativeness, or
effectiveness countervailing root policies of the Act itself.
Faced with the type of situation here involved , the Board
would determine the matter by an election, 172 what
Respondent seeks in effect to accomplish is to compel the
Board to determine the matter by cards - a huge mass of
questionably procured and executed , duplicative and
conflicting pieces of paper , and none of which Respondent
itself chose in any way to authenticate as it should have.
It will be recalled that Respondent proceeded to open
contract negotiations with Teamsters Local 806 in the face
of the charges pending against it in the instant case. In
Telautograph Corporation, 199 NLRB 892 (1972), quoting
from Shea Chemical Corporation, supra, the Board reiterated
its adherence to the principle that "an employer may not go
"cards ," former Board Chairman Frank W . McCulloch had occasion again
to point out that "There has been a spate of comment too about the reliance
upon authorization cards to establish a union's majority . Now everyone
knows, and my public assertions to that effect have been cited far and wide,
that honest and free elections are a better test of employee choice than
authorization cards, with all their known frailties ." 'The Policy, the Purpose
and the Philosophy of the NLRB as Revealed in Decision Trends," address
to Texas Manufacturing Association , October 28,1965.
170 The argument for recognition on the basis of "cards " is usually made
by a union rather than an employer . It is obviously no more efficacious when
advanced by the employer.
1T1 I am aware that this use of the hoary expression "question concerning
representation" may be broader than the more limited "technical" concept
of QCR barnacled in the Act's linguistic lore or vernacular of its practition-
ers. Cf., e.g., Buitoni Foods Corporation, 126 NLRB 767 (1960), enfd. 298 F.2d
169 (C.A. 3, 1962); Shea Chemical Corporation, 121 NLRB 1027,1029 ( 1958).
172 Cf., e.g., Inter-Island Resorts, Ltd, d/b/a Kona Surf HoteI 201 NLRB
139(1973).
HARTZ MOUNTAIN CORP. 531
so far as to bargain collectively with incumbent (or any
other) union until the question concerning representation
has been settled by the Board." While this admonition was
in the cited case in the context of recognition during the
pendency of a decertification election to which objections
had been filed , the principle would appear to be the same
here in view of the fact that Respondent proceeded to
bargain collectively with a nonincumbent union , Teamsters
Local 806 , not only in the face of ongoing conflicting
unions' campaigns and recognitional demands which it had
chosen to stave off and ignore , but also by its own
admission after and with knowledge of the filing of the
charge by Distributive Workers District 65 herein . Respon-
dent thereby here also, as in Telautograph, arrogated to
itself, instead of submitting to the Board as the impartial
public agency established for that purpose , the responsibili-
ty for determining the root , highly contested basic issue in
this case, an issue in which Respondent itself was directly
involved as a chief party in interest - i.e., which union
really represented its employees , a union it did not want or
a union it was willing to have.
Finally, in connection with the supposed Midwest Piping
nexus of problems to which attention has been invited by
counsel, it is unnecessary here to reach those issues, since
even those Federal circuits (including the Third) which
have not "accepted" the Midwest Piping principle full scale
or perhaps not even in part, have carefully limited their
"nonacceptance" to situations where - wholly unlike here
- the recognition is bona fide and the "cards" in question
are not impugned . Explicating this threshold limitation for
the Third Circuit , Circuit Judge Hastie stated in N.L.R.B. v.
Air Master Corporation, et al., 339 F.2d 553, 557 (C.A. 3,
1964) (emphasis supplied ; only supporting citations are
omitted):
In brief, our view of the proper scope of the Midwest
Piping doctrine is this . For an employer to recognize a
union that enjoys only minority support, is an unfair
labor practice under the explicit holding of the Supreme
Court in the International Ladies' Garment Workers
case. . . . To recognize one of two competing unions
while the employees' choice between them is demonstr-
ably in doubt , is an unfair labor practice under what the
courts have accepted as the normal and proper application
of the Midwest Piping doctrine. . . . And in principle the
same result follows when majority support for the
recognized union exists, but has been achieved by
coercion or some other unfair labor practice. . . . But
where a clear majority of the employees , without
subjection to coercion or other unlawful influence, have
made manifest their desire to be represented by a
particular union, there is no factual basis for a conten-
tion that the employer's action thereafter in recognizing
the union or contracting with it is an interference with
their freedom of choice. . . . This case is in this final
category.
Circuit Judge Hastie additionally pointed out (id.) in relying
upon the Third Circuit's earlier case ofN.LRB. v. Swift&
173 That the production of hundreds of such additional witnesses would
have entailed untold expense to the Government and incalculable prolonga-
tion of this already greatly protracted litigation - prolongation most likely
Co., supra, that in that case - also wholly unlike the instant
case - not only was it established that "a majority of the
employees voluntarily adhered to that [recognized ] union,"
but that there was "no showing that the rival union had
substantial support." Likewise in the recent case of Subur-
ban Transit Corp. v. N.LR.B., supra, a majority of a Third
Circuit panel, in concluding that union recognition by an
employer based upon cards was not improper , relied upon
the fact that - unlike here - the "union represents an
uncoerced majority of the employees" (id at 86) and that
the union majority support was also "achieved ... without
... unlawful assistance on the part of the employer" (id).
d. Unessentiality, under circumstances shown, for
absolute mathematical demonstration of precise extent
of employee nonsupport for Teamsters Local 806
Respondent finally contends that General Counsel has
not met his "burden of proof' of establishing to a
mathematical certainty that Teamsters Local 806 did not
represent a majority of the unit employees at the moment it
was recognized by Respondent . Under the circumstances
shown and found, I can neither agree that this question
need be reached nor that , if it should , that burden was not
sufficiently met here.
To begin with, this question also need not be reached in
view of findings here made concerning Respondent's
assistance and support to Teamsters Local 806 in the
solicitation of cards constituting the basis for Respondent's
recognition of that Union. Those findings, without more,
are dispositive of this aspect of the case.
Nevertheless, again because of the importance of the
issue, the seeming novelty of the contention in the context
tendered, and in the interest of early pacification of the
industrial relations unrest in the large plant here without
undue prolongation or relitigation of the case, brief
comment will be made upon this issue.
Respondent contends that - notwithstanding General
Counsel's establishment of the size of the bargaining unit
and his accounting for all cards of all unions here involved,
and his demonstration that Teamsters Local 806 did not
represent a lawfully procured and uncoerced majority of
cards - General Counsel has still not met his burden of
proof because he failed to call to the witness stand
hundreds of additional witnesses, for whom neither Re-
spondent nor Teamsters came forward with or claimed
membership cards or any other evidence of Teamsters
affiliation, to establish that they did not belong to Team-
sters at the time that the Union was accorded recognition
by Respondent under the circumstances described.173
However, in my opinion General Counsel has sufficiently
met any burden which may reasonably be considered to be
his in the situation shown , and it was unessential ffr him to
establish the Teamsters nonaffiliation (or affiliation) of the
large number of employees for whom neither Respondent
nor Teamsters chose to come forward with cards or other
evidence when called upon to do so, since adequate
demonstration was made to establish that Respondent's
beyond the expiration of the collective agreements here allegedly imposed
upon Respondent's employees , and thereby frustrating the purpose of this
proceeding to abrogate those agreements - is altogether clear.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recognition of Teamsters was tainted with sufficient irregu-
larity to require it to be set aside,174 without necessity for a
directionlessly peregrinating inquisition into the possible
union affiliations of hundreds of additional employees or
former employees in a highly transient work force, with
many if not most of the employees dispersed to the four
windS.175
In this connection, Respondent calls attention to Ameri-
can Beef Packers, Inc., 187 NLRB 996 (1971), enfd. sub nom.
Arthur L Morgan Union Local No. 3 v. N.LRB.,463 F.2d
818 (C.A.D.C., 1972) and Walker's Midstream Fuel &
Service Co., 208 NLRB 158 (1974). However, it may be
doubted that these cases are required to be given literal
application under the circumstances here presented. For
one thing, those cases did not involve a situation where the
union campaign and cards were tainted by employer
assistance, support, and participation as herein . Beyond
that, however - also unlike here - in American Beef
Packers no payroll or other records were introduced to
establish the number of employees in the unit; and,
although General Counsel had in his possession the union
authorization cards, he likewise failed - and refused under
subpena - to produce those, insisting that he was under no
obligation to do so.176 Thus, no basis was supplied for
determination of the extent or percentage of union mem-
bership , since neither the numerator (number of union
cards) nor the denominator (number of employees in the
unit) was supplied, reducing the whole case to "nothing
more than conjecture" (187 NLRB at 997). Likewise in
Walker's, again unlike here, "the General Counsel did not
introduce any evidence to support his allegation that the
Plant Bargaining Committee did not represent a majority of
the Respondent's employees" (208 NLRB 158, 159 (1974);
emphasis supplied).
It would not seem that an employer who, under the
circumstances here shown - including an extremely large
bargaining unit, clearly visible and well-known substantial
organizing activity by and competition among rival unions
for employee membership, with dual cards, plus employer
assistance to one of the rival unions - can, be recognizing
one of the rival unions glibly unaware of whether or not it
represents a majority of unit employees, saddle General
Counsel (and the rival unions, who have laid all of their
cards on the line) with the necessity for establishing to a
scientific certainty that the favored union so recognized was
not in fact the majority representative.177
General Counsel has here produced all Local 806 cards
upon which recognition was based, that Union having
concededly turned all of them over to General Counsel. No
174 Since, as has been pointed out, "the question of [a union 's] precon-
tract majority" is not necessarily "susceptible to resolution by a simple
mathematical formula"-Clement Brothers Company, Inc. and United Mine
Workers of America, 165 NLRB 698,699 (1%7), enfd. 407 F.2d 1027 (C.A 5,
1%9) - only 7 out of 129 cards specifically established invalid, Board held
majority wholly tainted ; see also Department Store Food Corp. of Penna., 172
NLRB 1203, 1208 (1968), enfd. 415 F.2d 74 (C.A. 3, 1969), scientific
demonstration of taint need not be made to the last detail and tittle,
particularly where , as here , the employer's personnel manager and personnel
office were implicated in card solicitation.
175 Respondent Vice President Kaye testified that Respondent's Jersey
City plant work force undergoes between a 50- and 100-percent annual
turnover.
178 The Board also pointed out that "there is no question concerning the
claim is made - except for the Union's assertion of
"missing cards ," which has been rejected here - that there
were more . Thus, all Local 806 cards on which Respon-
dent's recognition was based have been accounted for here
by General Counsel; there are no more. That being the fact,
it is unnecessary to indulge in speculation concerning other
unit employees for whom there are no such cards; and
General Counsel has in this case sustained his burden of
proof of establishing that Respondent's recognition of
Local 806 was not based upon a majority of valid bargain-
ing authorizational designation cards.
Respondent does not claim it recognized Teamsters upon
the basis of cards which were not presented to it. However,
Respondent admits it did not count the cards presented to
it. Respondent concedes that, under the Bernhard Altmann
principle, it was and is at risk in extending recognition upon
the mere basis of cards unless in fact those cards represent-
ed an actual majority of employees in the appropriate
bargaining unit. But if, as Respondent concedes, it was thus
at risk, what is the meaning or extent of that risk if, under
the circumstances here shown, Respondent may lawfully
recognize a union based upon mere casual glance at a stack
or stacks of cards, without ascertaining their number and
validity, and then - cavalierly disowning any responsibili-
ty for even meaningfully describing those cards, much less
establishing their volume and validity - thrust upon
General Counsel the herculean if not impossible task of
proving to the last tittle the membership or nonmembership
of each employee in a huge and proliferating unit with a
peripatetic, shifting membership? Under the circumstances
here shown, elementary fairness demands that, all of the
Teamsters cards having been produced in open court, and
with no others meaningfully or credibly accounted for or
described by Respondent or Teamsters, the burden of going
forward must shift to Respondent and Teamsters to
persuasively establish such other cards as allegedly were
involved in the card "majority" upon which Respondent
claims it based that recognition in respect to which it
concedes it was at all times and still remains at risk. This,
however, Respondent and Teamsters have utterly failed to
do, contenting themselves instead upon here insisting that it
is General Counsel's burden to disprove the alleged
majority upon which they claim recognition was based.
Since (as Respondent argues), technically not even cards
are necessary for employees to designate a bargaining
representative - they may even do this orally - a "logical"
extension of Respondent's "burden of proof' argument
here would mean that an employer could by glibly
recognizing a 1000-employee unit on a union's mere say-so
validity of the authorization cards obtained" (187 NLRB at 997 , emphasis
supplied).
177 Respondent itself has appeared to recognize this, since it did not
choose to rest upon General Counsel 's alleged failure to disestablish all cards
or to "account for" the Local 806 affiliation or nonaffiliation of all
employees, but instead Respondent itself sought affirmatively at consider-
able length to establish the validity of numerous asserted Local 806 cards or
the supposed Local 806 membership of certain unit employees upon which it
in part based its recognition of Teamsters Local 806. Under these circum-
stances, it may well be that "having undertaken a determination which he
[i.e., the employer ] could, under proper circumstances , insist he made by the
Board, he may not thereafter repudiate the route he himself selected."
Nation-Wide Plastics Co, Inc., 197 NLRB 996 (1972).
HARTZ MOUNTAIN CORP. 533
of its bargaining representational authority, subject Gener-
al Counsel to the "burden of proof" of calling no less than
501 employees to testify that they did not in fact authorize
the union to represent them, before such a union so
"recognized" could be disestablished from its "representa-
tional status" as agreed between it and the employer - a
process doubtfully completable before expiration of any
"collective agreement" spawned by such a "recognition."
Such a result would be an affront to the basic principles of
the Act and a grievous wound to the employees, the public,
and the unimpeded commerce it was designed to protect. It
would in effect permit employers and unions to team up
and install, by their own agreement , exclusive bargaining
representatives for all employees without verification of the
union's bargaining authorizational credentials.
It would seem that, where it is established that an
employer extended recognition to an employer-favored
union as the exclusive bargaining representative for his
employees without knowledge or reasonable belief that it
was in fact such representative, the employer's failure to
come forward to show that the recognized union was in fact
such representative may contribute to an inference that the
recognized union was not the representative of a majority
of the employees. Where, as here, the proof establishes (1)
the number of employees in the bargaining unit at the time
the employer recognized a bargaining agent and (2) that the
employer's recognition of the bargaining agent was predi-
cated upon certain union cards, all of which were turned
over to the General Counsel and are produced at the
hearing, and (3) those cards - to the extent authenticated
and valid - reflect only a minority of the employees in the
bargaining unit, the General Counsel has reasonably
satisfied his burden of establishing that the union recog-
nized by the employer was a minority union. The burden of
going forward at that point shifts to the employer and union
to produce additional valid cards or otherwise to establish
the claimed majority status of the recognized union; if - as
here - they fail to do so, General Counsel's burden of
proof is satisfied in that regard. Cf. Ellery Products
Manufacturing Co., Inc., 149 NLRB 1388, 1392 (1964).178
One, if not the basic, purpose of the Act is to assure to
employees free choice of their bargaining representative in
the event they want one. Under the circumstances here
disclosed, it is realistically impossible to determine which (if
any) of the competing unions Respondent's employees
really wished to represent them. In this situation to impose
- in effect by legal fiat - an "exclusive representative"
upon the employees would be abhorrent to the basic
178 Respondent's alleged fear of "Teamsters power" or a "strike" if it
failed to recognize that Union is of course no justification for recognition.
Ellery Products Manufacturing Co., Inc., supra, The Grand Union Company,
122 NLRB 589 at 603 ( 1958), enfd . 279 F.2d 83 (C.A. 2, 1960).
179 In Air Lacarte, Florida Inc., 212 NLRB 764, 766 (1974) the Board
stated:
In the circumstances of this case and upon consideration of all the
evidence presented, we cannot determine whether a contract was in fact
signed on June 28, 1972; nor can we determine whether on June 26,
1972, the Employer made a good-faith recognition of Intervenor at a
time when it had no knowledge of Petitioner's organizational efforts. We
recognize that a bargaining relationship between the Employer and
Intervenor has existed since the summer of 1972, which an election at
this time aught upset. However, the Board must decide what interest is
paramount in each case. It must weigh and resolve the conflicting
purpose and philosophy of the Act. In the situation shown,
the secret-ballot election provided for by the Act - now
available to the parties, since the 1-year "freeze" period
following the May 1973 decertification of Retail Clerks
Local 888 has expired - is the one fair and feasible
solution to the problem posed. An analogy would be to
award a disputed political representation office to one of
the contestants based upon conflicting pieces of paper
ascribed to the constituents, without a secret-ballot elec-
tion.179
It would be a plain rebuff to the purposes of the Act to
conclude that where the Board - with all of its assembled
resources and expertise - is unable to determine which (if
any) of various competing unions commanded majority
support at a given moment - under circumstances involv-
ing among other things duplicate as well as dual and
possibly conflicting cards allegedly executed in English by
persons illiterate in that language - the General Counsel
has failed in any supposed "burden of proof' to establish
that one of the competing unions, hastily recognized by the
employer concededly upon little if any inquiry and under
other questionable circumstances , is in fact not the majority
representative. Suchi a result could by fiat foist upon
employees an "exclusive bargaining representative" of the
employer's own choosing, rather than that of the employ-
ees, thereby corrupting a basic purpose of the Act and
emasculating the Board's administration thereof. Is it open
to reasonable debate that, in such a situation, the secret-
ballot election provided by the Act is the only feasible
mechanism for resolution of the Board's inability to
determine the true majority representative, as well as the
only proper mechanism to assure free choice by the
employees themselves? 180
I have indulged in the lengthy and possibly dreary recital
of the organizational activities of the three unions to which
Respondent's Jersey City employees pledged their seeming-
ly wavering allegiance , in part to afford a flavor of the
weblike activities which occurred preceding Respondent's
,lightninglike recognition of Local 806's "cards" in contra-
distinction to the immobile stance it assumed toward the
substantial quantities of the District 65 and Local 888
"cards," and to show that the only fair and feasible solution
to the problem of determining the true representational
desires of the large number of unit employees is through
that secret-ballot election process provided by the Act;
particularly considering the Act's pivotal purpose of
placing a quietus on industrial strife and unrest and of
promoting labor peace by affording employees a visibly
interests of maintaining stability in an existing bargaining relationship,
and of protecting the freedom of employees to choose their representa-
tives. We do not believe that the serious doubts arising out of the events
of June 1972, which hindered our efforts to determine the issues, create a
situation which stabilizes labor relations, and thus we conclude that no
bar to the instant petition [for election I can be found. We shall therefore
direct an election among the employees in the appropriate unit.
180 The credibility of Respondent's protestations also suffers from its
attempt to make out a recognition date or dates other than that set forth in
the recognition agreement it signed, as well as its attempt to refashion into
two bargaining units the one bargaining unit specified in that agreement.
These attempts merely serve to "muddy the waters," but, as has been
demonstrated, to no arithmetical avail, since the Teamsters cards presented
to it upon the basis of which it recognized that Union at no time represented
a majority of Respondent's employees in any kind of unit at any time here
material
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
democratic and honest process for expressing their true
desires without pressure and in hazardless anonymity. The
only alternative is continued suspicion , mistrust, specula-
tion, doubt, and rancor - ingredients of a poisoned
industrial relations atmosphere which it is the Act's
command that the Board attempt, through the weapons
provided for its choice from its statutory arsenal , to dispel.
After seeing and hearing the many witnesses , and listening
to and reading the arguments of the parties' counsel , in this
protracted litigation, I am utterly convinced that the only
feasible weapon in the Board 's arsenal in the situation
presented is a secret -ballot election at the earliest possible
date.
While it is unessential , for reasons explained , to reach or
pass upon the issue of whether Respondent's recognition of
Teamsters Local 806 was based upon valid majority
bargaining credentials of that Union , or the issue of
whether Midwest Piping in the literal sense technically
applies during the postdecertificational year under the
circumstances described, it is at any rate clear and I find
that Respondent rendered unlawful assistance and support
to Teamsters Local 806 and recognized that Union upon
the basis thereof, thereby depriving Respondent's employ-
ees of that free choice of bargaining representative guaran-
teed to them by the Act. I further fmd that by recognizing
Teamsters Local 806 and by entering into and maintaining
the aforedescribed collective agreements with that Union,
wherein that Union was granted exclusive collective bar-
gaining rights on behalf of all of Respondent's unit
employees, with union-security and checkoff provisions,
under the circumstances described and found , Respondent
unlawfully assisted and supported that Union, discrimi-
nated against employees , and interfered with , restrained,
and coerced employees in the exercise of their rights, in
violation of Section 8(a)(2), (3),181 and (1) of the Act.
B. Respondent 's Employee Discharges, Layoffs, and
Disciplinary Warnings
We move now to the remaining phase of this case;
namely , that involving Respondent 's alleged termination
and discipline of employees discriminatorily and otherwise
in violation of the Act.
1. Jose Peguero
Jose Peguero entered Respondent's employ in its Jersey
City plant as a first-floor "porter" or "merchandise organiz-
er" in September or October (1973) and, after a brief
tenure , was discharged on December 10 (1973). The
complaint alleges that his discharge was in violation of
Section 8(a)(3) and (1) of the Act, because of his protected
181 An unlawfully applied collective agreement containing a union-
security provision (as herein) discriminates with respect to hire and tenure of
employment , thereby encouraging membership in the unlawfully recognized
union and also discouraging membership in other unions as well as
nonmembership in any union . Hudson Berhnd Corporation, 203 NLRB 421,
423 (1973), enfd. 494 F.2d 1200 (C.A. 2, 1974), cert. denied 419 U.S. 897;
Schreiber Trucking Company, Inc, 148 NLRB 697,703 (1964)
182 As Peguero was leaving the plant , he taunted Calagna and Gonzalez,
officials of Local 806 (for which Peguero had meanwhile signed a "card"),
"Aren' t you going to defend me, my leader, the employer has fired me." The
answer was, "What union are you with ?" (hardly material, in my view of an
organizational activism in opposition to Teamsters Local
806 and in support of Distributive Workers District 65.
It will be recalled that Peguero was indeed active in
opposition to Teamsters Local 806 , as manifested by his
tabletop and other actions at the turbulent plant cafeteria
episode on December 7. He was also a more recent member
of the District 65 employees organizing committee.
After Peguero was sent back to work by plant General
Manager Feinberg on the morning of December 10, as has
been recounted, to a different job repackaging damaged
merchandise under Foreman Domingo Negron , approxi-
mately an hour or two later that morning he was instructed
to accompany Negron to the personnel office, where he was
met by Feinberg and where they were joined later by
Personnel Manager Morales . Feinberg indicated that he
had just been informed that Peguero had been observed
urinating on the plant floor near his workplace. When
Peguero , denying the accusation , demanded to be confront-
ed by his accuser, Feinberg declined to identify him by
name . Peguero denies that he has ever urinated on the plant
floor. He concedes that employees have never been
restricted in the use of the plant toilet facilities, the closest
one to his work station being at a distance of "about a half a
block." Early that afternoon, Peguero was discharged by
Feinberg (with Morales acting as interpreter) for urinating
on the plant floor.182
Concerning the foregoing , General Manager Feinberg
testified that, less than an hour after he had returned
Peguero to work on the morning of December 10, Feinberg
was informed on the telephone by one of Peguero's
supervisors that Peguero had just been observed by several
employees to have urinated on the plant floor. After visiting
the scene with Morales and observing a wet, yellow area of
around 2 feet square smelling of human urine - Feinberg
swore he actually placed his hand in it and conveyed it to
his nose to determine this 183 - and after being informed
by employee Eddie Sanabria (a Teamsters Local 806
activist, it will be recalled) that he "saw it," Feinberg
summoned Peguero and Negron to Morales' office. When
he accused Peguero of this and asked him why he had done
this so soon after the earlier warning that morning about his
behavior, Peguero laughed it off without denial, demanding
to be confronted by his accuser or accusers. Feinberg
declined to do this and discharged Peguero. Feinberg
concedes he was aware - from the cafeteria incident of
December 7 - of Peguero's opposition to Teamsters Local
806, but claims he was and is unaware that Peguero was a
supporter of District 65.
Respondent's former supervisor, Domingo Negron, un-
der whom Peguero worked at the time of his dismissal, and
who acknowledged awareness that Peguero was a District
65 advocate, testified that after he (Negron) was informed
exclusive representative's statutory duty toward all unit employees). When
Peguero replied , "I am with the workers ... with [District) 65," their
response was, "Tell 65 to speak to your employer so you get your job back."
This testimony by Peguero is uncontradicted.
183 Feinberg concedes there were cats in the plant, but that , even though
they presumably had excretory needs which they relieved in places other
than the restrooms , he is familiar from personal experience with the
difference in odor between feline and human urine . There is no suggestion
that feline urination had been observed at or around the point in question at
or around the time.
HARTZ MOUNTAIN CORP.
by Sanabria on the morning of December 10 that he had
observed Peguero urinating on the plant floor, Negron
reported this to Feinberg. Negron denies telling Feinberg
that he himself (Negron) had seen Peguero urinating; and
Negron indicates that at the aforedescribed office interview
Peguero denied that he had done so. According to Negron,
the smell of merchandise in the area is overpowering and he
himself was unable to characterize the substance or odor in
question as human urine; and that of the 10 employees
under him at the time, none said they had seen Peguero
urinating on the floor, although he had asked them, and -
contrary to Feinberg - none indicated he was afraid to
speak out.184
Respondent Supervisor Hector Santiago also testified
concerning the Peguero matter. At the time in question,
Sanabria worked as a machine operator under Santiago, as
did Peguero briefly as a stock handler on Line 26.
According to Santiago, Sanabria informed him on the
morning of December 10 that Peguero was urinating on the
floor of line 26. Inspecting the scene at once, Santiago
observed a wet, yellow area which smelled to him like urine,
and he reported the matter to Personnel Manager Morales,
who soon thereafter also visited the scene with General
Manager Feinberg. Peguero was then called to the office.
Santiago himself did not see Peguero in any act of
urination. Santiago also testified that the merchandise
around the area in question consists only of dry pet foods
and receptacles, with no liquid in bottles or otherwise.
Eddie Sanabria - as will be recalled, a Teamsters Local
806 activist who has been characterized as lacking in
testimonial credibility - testified that on the morning of
December 10, when he observed Peguero at the juncture of
lines 26 and 27 "zippering up" his pants, he asked Peguero
what he was doing and Peguero answered that he was
"urinating there"; that when he asked Peguero "why he was
doing it there," Peguero replied that he "had been doing it
there for quite a while"; that Sanabria observed the place to
be "stinking . . . it was full of urine," and that he told
Peguero that "there was some other people working in the
line there and that Denisad [another employee] had seen
him before and he didn't want to say anything"; that
Peguero indicated he would not go to the toilet since this
was closer; 185 and that when Sanabria again asked or told
184 There may, however, be no inconsistency between a person 's fear to
make an accusatory statement (Feinberg) and his lack of fear to make an
exonerating statement (Negron).
To the extent bearing upon the matter of Peguero to the degree reflected in
Resp . Exh. 69 (same as G.C. Exh. 184A - January 7, 1974, preheanng
affidavit of Negron), G.C. Exh. 184B (December 4, 1974, preheanng
affidavit of Negron), ruling on Respondent's objection to which was
reserved, is hereby received.
Peguero's December 10 "Termination of Employment Notice," signed by
Negron, states as "Reason for Termination": "Poor Prod., Was seen using
the whse as a toilet, too long finishing a job, talk too much on working hours,
mis-conduct . December 7, 1973 this man was asked to leave the premises to
the fact that he was indulging the workers to a not . As a result of his action
two persons were hurt . I consider this man too dangerous , for our plant.
When Mr. Feinberg and Mr. Kaye asked this man to leave the premises, he
refuse . He was told that we were going to call the Police . He answered, Call
the god-danut Police I don' t care . You may need all the Police in J.C." (Resp.
Exh 68.) According to Negron's testimony, he wrote much of the foregoing
at the behest of Feinberg to "put as much material there to terminate the
man."
185 According to Sanabna , the distance from Peguero 's workplace to his
alleged unnatin$. area is about 1 foot, whereas the distance from there to the
nearest men 's toilet is 100-200 feet.
535
Peguero not to do this because he was hurting others who
needed their jobs, Peguero remarked that was of no
importance to him. Shortly thereafter, Sanabria reported
the incident to his supervisors, Santiago and Negron, and
later described it to Morales and Feinberg when ap-
proached by the latter.lss
The testimony of Personnel Manager Morales is essen-
tially 187 consistent with the foregoing accounts of Feinberg,
Negron, Santiago, and Sanabria.
Based upon close observation of General Manager
Feinberg as he testified about this matter, I was impressed
with his evident sincerity and truthfulness in recounting the
episode surrounding the Peguero discharge. Activism in
union affairs does not, of course , immunize an employee
from discharge for unrelated reasons . Union membership
does not license an employee to urinate on the factory floor.
It is , however, unnecessary to determine whether Peguero
actually urinated on the floor, since upon the record
presented I believe and fmd that Feinberg discharged him
in the reasonable belief that he had. Inasmuch as it is hardly
conceivable that urination on a factory floor could consti-
tute or occur as a part of protected concerted activity under
the Act,188 Peguero's discharge for that reason - whether
or not he actually urinated on the floor - was not in
violation of the Act and I so fmd. -
2. Rafael Bueno
It will be recalled that Rafael Bueno (Rafael Marcelle
Bueno Nunez) was Jose Peguero's tabletop comrade at the
December 7 plant cafeteria melee, and the person who spat
at or near Vice President Kaye's feet when asked to leave
the plant after that episode. As Peguero, when he returned
to the plant on Monday, December 7, he was restored to
work by General Manager Feinberg, continuing from then
on under Supervisors Felipe Rivera and Ildefonso Urdane-
ta. From December 5 on, Bueno was also a member of the
District 65 employees organizing committee.
Bueno's version of his discharge is as follows. Like
Peguero, the entire length of Bueno's employment with
Respondent was no more than 2 or 3 months. Bueno was an
"order picker." After not working on Christmas and not
reporting for work on the day before (December 24), at the
186 Although Sanabria had sworn in his January 30, 1974, prehearing
affidavit (G.C. Exh. 135) that "I saw Peguero urinating on Line 26 ... The
next day he did it again," this is inconsistent with his testimony here, where
he denied seeing Peguero urinating at any time and claimed that only his
fellow employee Denizad had told him this although others had also seen
Peguero urinating there. However, Sanabria testified specifically concerning
his circumstantial conclusion described above, involving Peguero's zippering
up his trousers and the latter's admissions.
is? There is, however, a significant variance from Feinberg's testimony
concerning the scene in Morales' office with Peguero on December 10.
Unlike Feinberg, Morales testified that on that occasion Peguero admitted
that he had used the corner in question to urinate "often" since the toilets
were far away. Since Feinberg testified to no such thing (under circumstanc-
es where it is likely he would have, had it occurred ), since Morales made no
mention of any such thing in his July 1974 affidavit to the district court (C.P.
Exh. 9), and since I regard it as most unlikely that Peguero would make any
such admission, I do not credit this aspect of Morales' testimony , ascribing it
- as I have in other connections - to Morales' overeagerness to embellish,
if not more , in favor of his employer.
188 Cf. N.GRB. v. Burnup and Sims, Inc., 379 U.S. 21, 23 ( 1964).
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
end of the December 26 workday he and another employee
led a large employee contingent - perhaps as many as 35-
50 - to Personnel Manager Morales' office, where Bueno,
serving as spokesman , complained that although Plant
Manager Petrera had allegedly promised them a full day's
pay for December 24 and they had left with permission
after working only a half day, the "eight full hours"
previously recorded on their timecards had been cut
down.189 Morales referred them to General Manager
Feinberg, whom the employees visited. Feinberg disputed
that they had been promised a full day's pay for a half day's
work on December 24.1% When the employees insisted that
Respondent keep the promise Plant Manager Petrera had
allegedly made, Feinberg indicated he would take care of it,
and the employees left. Bueno worked all that day and until
noon of the following day (December 27), at which time he
left the plant after - according to his testimony - he told
his foreman, Ildefonso Urdaneta, soon after the 10 a.m.
workbreak, that he was going home for lunch since he was
without money to buy lunch, and that for the same reason
he would be unable to return. At noon, Bueno punched out
and walked home - a mile or so, about a half hour's walk,
from the plant , to an apartment he shares with Jose Peguero
- and did not return to work that day.191 On the following
morning, December 28 - still according to Bueno - when
he sought to punch in at the regular reporting time of 8
a.m., his timecard was not in the rack and he was referred to
Personnel Manager Morales , who informed him his services
were no longer desired since he had left his job the previous
day without authorization. According to Bueno, when he
told Morales that in accordance with past practice he
(Bueno) had informed his supervisor, Urdaneta, Morales
asserted it was necessary to inform Morales; and that,
thereupon, when Bueno asked Morales for an explanatory
dismissal document, Morales told him it would be with his
paycheck. Finally, according to Bueno, although he did not
receive such a document with his paycheck, it was subse-
quently forthcoming, but he did not understand it since it
was in English and he has lost it.
The foregoing testimony of Bueno, who less than 2 years
preceding these events pleaded guilty to charges including
assaulting a policeman , is substantially disputed and
contradicted by a number of witnesses.
Ildefonso Urdaneta, one of Respondent's supervisors -
who, it will be recalled, also served as a member of Juan
Vazquez' Teamsters Local 806 "committee" - was Bueno's
foreman at the time in question. According to Urdaneta,
not only was Bueno's attendance irregular, with his
appearance for work unpredictable, but on those occasions
when he did show up "I [Urdaneta] had to be always
behind him." Urdaneta denies that on the last day Bueno
worked at the plant 192 he (Bueno) in any way indicated to
him that he was leaving early, much less sought his
permission to do so ; and he denies recalling any such prior
occasion . Bueno's other supervisor , Felipe Rivera - an
189 Since Bueno had not shown up for work at all on December 24, he had
no such problem with his own timecard.
180 According to Bueno, Feinberg told him to shut up and , placing his
hand on his sexual organ , said that was what he would give them
lei According to Bueno, he had also left work early in this way on two
previous occasions . He denies that he passed his other foreman , Felipe
Rivera , on his way out on this occasion.
impressively credible witness, who has been in its employ
for about 12 years - testified convincingly that Bueno's
performance, during his short tenure of employment at the
Jersey City plant, has been "very poor," since among other
things he "continually made any mistakes in his arithmetic
and confused one number for another, overpicked, under-
picked . . . . he would forget to stamp address all cartons.
He would not stack it [palettes] properly"; that he had
spoken to Bueno about the quality of his work; and that as
early as the beginning of December he had recommended
that Bueno be terminated, which, indeed, Bueno was on
December 7, although reinstated or rehired in a day or two,
only to be reprimanded by General Manager Feinberg on
December 10 for his "disruptive" conduct at the plant
cafeteria episode of December 7.
On December 27 - the last day that Bueno worked at the
plant - Rivera was walking back to the plant from lunch
when he saw Bueno three or four blocks from the plant at or
around 12:40 p.m. Back at the plant, Rivera inquired about
Bueno , whose lunchtime was from 12:15 to 12:45, and who
had not returned. Rivera was told by Urdaneta (who
worked under Rivera) and also by Morales that neither had
given Bueno permission to leave the plant, although he had
punched out just before 12:30. At no time that morning had
Bueno spoken to Rivera, nor Rivera to Bueno, nor anybody
else to Rivera concerning Bueno . Rivera told Morales that
he had seen Bueno on the street - walking away from the
plant - and that neither Rivera nor Urdaneta had
authorized this. Morales remarked that he had not autho-
rized it either.193 Thereupon Rivera said that he was in
favor of discharging Bueno, adding that since he had
already done so once it might be preferable to leave it in
General Manager Feinberg's hands. Although Rivera
conceded he had not previously recommended the dis-
charge of an employee for punching out without authoriza-
tion and subsequently failing to return, Rivera pointed out
that such instances are rare; and that he recommended
Bueno's discharge for that reason atop his poor perfor-
mance. I credit Rivera. (When Rivera was shown the
personnel file of Juan Vazquez, with no less than 15-20
occasions of punching in late or out early without indica-
tion of advance permission, with no disciplinary action,
Rivera was unable to account for it and pointed out he was
ignorant of the circumstances involved.)
Bueno did not return to work the following day (Decem-
ber 28) nor for about a week later, until January 3, 1974,
without obtaining permission and without notifying Re-
spondent. Rivera was subsequently informed by Morales
that Bueno had been discharged for failure to report or call
in for several days after December 27.
General Manager Feinberg also testified that on Decem-
ber 27 he was informed by Supervisor Felipe Rivera that
Bueno was observed by him outside of the plant after his
lunchtime, and that Rivera did not want to put up with this
or to have Bueno back again . After instructing Plant
192 Although Urdaneta was unable to remember the exact date, Bueno's
own testimony and the record otherwise establish this as December 27.
193 Morales confirmed that , although an unauthorized employee absence
would not necessarily be called to his attention (unless by reason of
chronicity or otherwise a supervisor saw fit to do so), an unauthorized
employee's early departure from work would be called to his attention.
HARTZ MOUNTAIN CORP.
Manager Petrera to check into the matter and being
informed by Petrera (as well as by Morales) that there was
no indication that Bueno had received permission to leave
work, Feinberg determined that Bueno was to be terminat-
ed upon his return . It was not , however, until January 2 or
3, 1974, that Bueno returned to the plant, at which time
Feinberg dismissed him personally in Morales' office after
receiving a call from Morales that he was having trouble
with Bueno there. At no time did Feinberg ask - nor did
Bueno say - why Bueno had stayed away from work from
the afternoon of December 27 until January 3.
Feinberg testified that he terminated Bueno - whose
brief employment history has been described - for a
variety of reasons, including not only his unauthorized
leaving of his work but also for his repeated "insolence," his
"freshness" to Feinberg's female secretary, and numerous
other shortcomings. While some of these are not specifically
reflected in Bueno's personnel file, I credit Feinberg's
candid explanation that they should have been but that he
did not have the time to personally follow such things up to
insure that they were. On the other hand, it is a fact - as
pointed out by Respondent's counsel - that Bueno's
personnel file (G.C. Exh. 115), as well as his earlier
(December 5, 1973) termination notice, and a subsequent
(December 11, 1973) "progress report" reflect repeated
work shortcomings of the nature described.
As I have had occasion to point out in the case of
Peguero, an unsatisfactory employee is not insulated from
discharge merely because of union activism. I credit the
testimony of Respondent General Manager Feinberg and
his subordinates, to the effect that Bueno was terminated
because of unauthorized departure from his work station on
December 27 and thereafter remaining away for an
additional unreasonable period without authorization or
shown or claimed justification, on top of his previous
alleged work derelictions. Whether or not an employer is
justified in discharging an employee who leaves his work
station for the day without authorization, together with or
not together with the other alleged work derelictions
described, is beside the point, since discharge for that
reason - as here found - is not in violation of the Act. As
in the case of Peguero as well, "The mere fact that an
employer may desire to terminate an employee because he
engaged in unwelcome concerted activities does not, of
itself, establish the unlawfulness of a subsequent discharge.
194 In addition to these 58, 11 employees were dropped by subsequent
amendment: Hector Alvarado, Miguel Cruz , Norma Lopez, Rose Lazcano,
Hector Lozada, Petita Martelli , Manual Nieves, Candido Placire, Luis
Romero, Elias Santiago , and Adalberto Torres.
195 It is to be noted that this was neither pleaded as a defense in any of
Respondent 's answers to the consolidated complaint as amended, nor
advanced to any of the employees as a reason for their termination
196 Some of the generalities and projections verbalized at the hearing
could be queried , such as that it is always "very cost,y" to carry "high"
inventories (Schwartz). Aside from the question of what is "high," sometimes
inventories are increased , retained, and even withheld from sale - as is well
known - to await or take maximum advantage of demand and using market
prices. It is further noted that , notwithstanding the picture sought to be
portrayed of financial stringencies , a seemingly substantial progression in
sales ($ 151 million as compared to $134 million ) and in all income and
earnings fronts is shown in Respondent 's annual report (Resp . Exh 57) for
1973 over 1972 - the only 2 years here compared by Respondent's chief
financial officer/accountant, who neglected to bring with him to the hearing
even a draft or rough figures for 1974 - as well as in its total asset picture
537
If an employee provides an employer with a sufficient cause
for his dismissal by engaging in conduct for which he would
have been terminated in any event, and the employer
discharges him for that reason, the circumstance that the
employer welcomed the opportunity to discharge does not
make it discriminatory and therefore unlawful." Klate Holt
Company, 161 NLRB 1606, 1612 (1966), quoted in Kennedy
& Cohen of Georgia, Inc., 218 NLRB 1175, 1177 (1975). It is
accordingly found that it has not been established by
substantial credible evidence upon the record as a whole
that Rafael Bueno was discharged by Respondent discrimi-
natorily or for engaging in protected concerted activity or
otherwise in violation of the Act.
3. Mass terminations of employees during hearing
a. Reasons therefor
It is undisputed that during the hearing of this proceeding
Respondent terminated the employment of 58 unit employ-
ees (aside from Peguero and Bueno, whose cases have
already been considered separately), resulting in the is-
suance by General Counsel of a number of amendments to
the complaint to reflect these terminations soon after they
occurred.194 General Counsel alleges the terminations were
discriminatorily motivated and in interference with and
restraint and coercion of employees' rights under the Act.
Respondent's counterassertion that they were based upon
economic or other considerations not violative of the Act
presents the issue in this aspect of the case.
Respondent Vice President Gilbert Kaye, as well as Chief
Financial Officer Curtis B. Schwartz, testified at length
concerning a decline in Respondent's business fortunes and
changes or projected changes in some of its operations
which they urge underlay the terminations of the employees
here in question.195 It is unessential here to review the
detailed financial and production projections developed at
the hearing,196 for reasons to be stated, including the large
number of newly hired employees interpersed with or
following on the heels of the employee terminations here,197
as will be shown.
Also according to Kaye - Respondent's high-level vice
president - he personally made the selections, upon the
basis of "efficiency," out of the many hundreds of produc-
tion employees at the Jersey City plant, of the low level
employees here terminated, by personally examining volu-
($93 million as compared to $72 million), and with $48 million in retained
earnings in 1973 as against $32 million in 1972 ; and Respondent added over
$4 million to existing property, plant, and equipment in 1973. Furthermore,
the ratio of inventories of finished goods to inventories of raw materials
remained essentially constant in 1973 as compared to 1972 (Resp . Exh. 57).
And Respondent 's "President's Message" of March 11 , 1974, to its stock-
holders not only pridefully boasts of "an increase of 13 % over 1972
sales" but is otherwise altogether glowing - with the possible exception of a
lament on the effect of price controls upon the Company's "ability to pass
through labor and raw material cost increases" - a factor possibly justifying
retention of some inventories to await a better day - and, contrary to the
gloomy picture sought to be delineated here, speaks of great expansion of
company operations. However, as stated above, it is unnecessary to dwell
here on such factors in view of other considerations to be shown.
197 And also in view of Kaye's testimony that the gross annual turnover of
production employees at Respondent 's Jersey City plant is between 50 and
100 percent, largely among new hires who leave soon , thus allowing adequate
opportunity for recall of furloughed employees if, indeed, not their absolute
retention.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minous personnel folders (some here in evidence) and upon
remarks allegedly made to him - but in no way corrobo-
rated by - high-ranking managers at the plant (Plant
Manager Petrera and Production Manager Oest). However,
without explanation , none of these managers at the factory
itself, let alone even a single one of the line supervisors
familiar with the work of the terminated employees, was
produced by Respondent to testify here . This is the more
significant in view of Kaye's alleged inability at the hearing
to recall what he was allegedly told by the plant managers
with whom he claims he consulted . On the other hand,
credited cross-examined testimony of Respondent's former
supervisor, Domingo Negron , subpenaed by General
Counsel as a witness, establishes that he as a responsible
line supervisor at the Jersey City plant was at no time
informed why any of the employees here in question was
being terminated ; that other fellow supervisors of the line
(identified by him by name and, without explanation, not
produced by Respondent to contradict him) were likewise
kept in the dark as to why some of their subordinates were
being terminated ; that nobody ever asked him for his
opinion or evaluation of any employee thus terminated;
that when he asked Personnel Manager Morales why two
named , valuable employees of his - both known to be
Distributive Workers District 65 supporters - were being
terminated, Morales answered that it was beyond his
control and referred him to General Manager Feinberg,
who told him (Negron) that the "orders" had come "from
Harrison"; that he found no fault with any of his employees
who were thus terminated ; that as a result of those
terminations his department was unable to carry out its
work until other employees were supplied in their place;
and that the replacements were not superior in ability to the
employees terminated.
The following facts in the aggregate cast a long shadow
across the credibility of Kaye' s "explanations" for the
employee terminations here in issue: (1) the fact that a large
number of junior employees, not shown to be of superior or
even equivalent aptitude or performance , were retained; (2)
the fact that a large number of new employees were hired
contemporaneously and overlappingly with , as well as
shortly subsequent to, the terminations; (3) the fact that
none but one of the temporarily "laid-ofi ' employees were
recalled ; (4) the fact that economic retrenchment was not
advanced as the reason for the terminations but, rather, in
almost all cases , "poor work performance" (except for a few
temporary "layoffs" - amended, to be sure, by Respon-
dent belatedly at the hearing , so as allegedly also to have
been for "poor work performance " assertedly misdescribed
as "layoffs"); (5) the selective nature of the layoffs, carried
out personally by so high-ranking a corporate executive as
Kaye, particularly as affecting so large a number of
Distributive Workers District 65 activists or collaborators,
as shown below; and, finally, (6) the dubious credibility of
the advancer of these "explanations" (Kaye), within the
total framework of his testimony, as already dealt with in
an earlier aspect of this case (supra).
Under these circumstances , plus the credited testimony
of the terminated employees as shown below, plus my grave
reservations concerning the credibility of Kaye as described
above, plus the fact that a comparative analysis of the
personnel folders of the terminated and other employees
does not persuasively sustain Kaye's position, and for
additional reasons developed below, I cannot accept Kaye's
testimony either as to his alleged reasons for or method of
selecting the employees for termination , or as to the
statements which he alleges were made to him by the
unproduced managers in connection with the terminations;
and, in the context of the record as a whole , I reject his
testimony in those respects.
b. Findings
The circumstances and my fmdings concerning the 58
employee terminations here in question , at its Jersey City
plant, follow.
(1) Rita Acevedo
Rita Acevedo entered Respondent's employ as a produc-
tion employee at its Jersey City plant on February 25, 1969,
and remained there for 5-1/2 years until her precipitate
discharge without previous notification at the end of her
workday on August 23, 1974, allegedly for "poor work
performance" although at no time during her 5-1/2 years of
employment had her work or conduct been criticized or
questioned in any way. She had been an early petitioner for
(G.C. Exh . 14), as well as card signer (G.C. Exh. 18) and
dues-paying member (G.C. Exh. 15) of, Distributive Work-
ers District 65, and had maintained her allegiance to that
Union . She attended its meetings and while at work wore its
large, distinctive button bearing its number. She never
affiliated with Teamsters Local 806. In February 1974,
however, she was directed by her supervisor, Presutti -
undisputed by him, since he did not testify - to go to the
plant cafeteria, where Teamsters Local 806 spokesman
Joaquin (Alex) Ocana told her she "had to sign the card for
the [Teamsters Local] 806" or "I would be dismissed from
the job." She refused to sign "until that union is authorized
by the Labor Department." Ocana's response was that that
was "precisely what they wanted to get the signature of the
people so the [Local 8061 union would be accepted by the
Labor Department." She refused to sign the Local 806 card.
At the end of her day's work on August 23, 1974, she was
summarily terminated without explanation, paid off
through that day, and handed a termination slip stating she
was terminated for "poor work performance" although her
work had in no way ever been criticized. On the witness
stand she demonstrated herself to be an impressive and
credible witness. No line supervisor familiar with her work
was produced in any way to contradict her testimony or to
show that her work had in any way been unsatisfactory.
Upon the entire record, I find that the reason assigned by
Respondent for her termination was spurious and pretextu-
ous, and that the real reason was her tenacious adherence
to Distributive Workers District 65 and her refusal to join
Teamsters Local 806.
(2) Clara Aguilar
Clara Aguilar entered Respondent's employ as a produc-
tion employee at its Jersey City plant on October 29, 1971
(G.C. Exh. 169), remaining there until her precipitate
discharge without previous notice at the end of her workday
HARTZ MOUNTAIN CORP. 539
on August 22, 1974, when she was paid off through that day
and handed a termination slip indicating there was a lack of
work at the factory. No dissatisfaction with her work or
criticism of any kind had been expressed to her during her 2
years and 10 months of employment there. Like Ms.
Acevedo, she had been an early petitioner for (G.C. Exh.
14) as well as card signer (G.C. Exh. 18) and dues-paying
member (G.C. Exh. 15) of Distributive Workers District 65;
and she had attended almost all of its numerous meetings,
distributed its authorization cards, worn its distinctive
button, and openly engaged in discussions with fellow
employees at the plant concerning its supposed merits. In
March 1974 she, too, was directed to the plant cafeteria,
where she was warned by a Teamsters Local 806 spokes-
man to sign a Local 806 card or she would lose her job. She
nevertheless refused to do so, apparently in part because of
the experience of a coworker who had been unsuccessful in
obtaining medical benefits even though she was a Local 806
member . However, in August 1974, about 2 weeks before
her termination, she signed a Local 806 card in order "to
protect my work" so as "not [to] be laid off." She was
nevertheless summarily terminated 2 weeks later. The
"termination notice" in her personnel folder (G.C. Exh.
169) states "poor work performance." She has never been
recalled to work, and in no way has Local 806 intervened
on her behalf, protested her termination, or sought her
recall. No line supervisor was called to testify so as in any
way to dispute her testimony or show that her work record
was other than excellent, as shown by her personnel folder.
Upon the entire record, I fmd that the reason assigned by
Respondent for her termination was pretextuous, the real
reason being her protected concerted activism on behalf of
Distributive Workers District 65 and her initial refusal to
join Teamsters Local 806.
(3) Fernando Aguirre
Fernando Aguirre was hired by Respondent on May 3,
1972, as a forklift operator and remained on that job until
he was summarily terminated without notice 5 minutes
before quitting time on May 10, 1974. Likewise an early
petitioner for (G.C. Exh. 14) and card signer (G.C. Exh. 18)
and dues-paying member (G.C. Exh. 15) of Distributive
Workers District 65, he was also a known activist on its
behalf and a member of its executive committee, as well as
a known opponent of Teamsters Local 806 and adversary
of Juan Vazquez who led the pro-Local 806 movement.
Around November 24 or 25 (1973), General Manager
Feinberg told Aguirre he was "a good worker, and he
[Feinberg] wouldn't like having to fire me [Aguirre] if I
didn't sign the [Local 806] card" because "that union was
going in." After persisting in his refusal to affiliate with
Local 806, while at work in March 1974, he was paged to
report to the plant cafeteria, where he was confronted by
Local 806 Representatives Gonzalez, Ocana, Sanabria,
Peneherera, and Marta Toro. Peneherera warned him, "[11
am about to give [you] a friendly comment, a friendly
advice.... [I know] that the people who had not signed
the [Teamsters Local 806 ] card would be dismissed ... the
bosses had said that the [Distributive Workers District] 65,
the union that we wanted, would not be in." Sanabria made
similar remarks. Nevertheless, Aguirre declined to sign a
Local 806 card and has never done so. At the end of his
workday on May 10, 1974, after 2 years with a substantially
good work record, he was precipitately "laid off" by
Personnel Manager Morales, who told him the layoff was
not of his doing and that "it was not depending upon him
[Morales], nor on the other bosses of the company in Jersey
City. It was a direct order from [company headquarters in]
Harrison." No reason has ever been given for his termina-
tion ; and no line supervisor testified as to any work
discrepancy on his part . Upon the entire record , I fmd that
he was terminated for his protected concerted activities on
behalf of Distributive Workers District 65 and his refusal to
join Teamsters Local 806.
(4) Julia Aguirre
Julia Aguirre was hired by Respondent as a production
worker on July 16, 1972, continuing in that capacity in
various jobs until she was summarily terminated on April
26, 1974. At no time during her tenure had she received any
work criticism of any kind. She was also an early petitioner
for (G.C. Exh. 14) as well as card signer (G.C. Exh. 18) and
dues-paying member (G.C. Exh. 15) of District 65. On April
19, 1974, she requested and was granted time off by
Personnel Manager Morales in connection with her daugh-
ter's illness . When she returned on April 29, Supervisor
Presutti referred her to Morales. Since Morales was not in
his office, she went to her workplace and started to work as
usual. Shortly thereafter, Supervisor Warren Robinson told
her to report to Morales' office, where she was given a
check for past pay due and a termination notice (G.C. Exh.
50) dated April 26, 1974, stating: "We regret that we have
to give you lay off due to raw material shortage, shipping
and transportation problem. We expect that this situation
will be corrected soon. Thank you." But she has never been
recalled. In addition to being an early and loyal supporter
of District 65, she attended all of its meetings , wore its
distinctive button while at work, and openly discussed its
affairs with other employees there; and she had distributed
its literature at the main entrance of the plant about a half
hour before starting time, as well as within the plant before
punching in. She never signed a card for Teamsters Local
806. In February or March 1974 she (as well as other
employees) were summoned to the plant cafeteria during
working time. There, Local 806 spokesman Joaquin (Alex)
Ocana said to her, "You know, we are both from Ecuador
so we want to help you. You know your age, it is not easy to
get a job at your age, so you should sign the card [for Local
806]." She refused. Notwithstanding the explanation given
on her termination slip, as quoted above, she has (as has
been stated) never been recalled to work, and the certificate
supplied by Respondent to the New Jersey unemployment
insurance authorities states that she was "Laid off - lack of
work . . . permanent" (G.C. Exh. 148). Respondent Vice
President Kaye swore at the hearing that the reason given
to Ms. Aguirre on her termination slip was incorrect and
that she was not laid off for material shortages. Kaye was
unable to explain why she has not been recalled, but now
claims she may have been discharged rather than "laid off,"
although her personnel folder and company certification to
the New Jersey unemployment insurance authorities show
the contrary. Kaye was also at a loss to explain why Ms.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aguirre , hired in mid-1972, with nothing derogatory in her
personnel folder , was terminated in April 1974 when nine
other women doing the same work (see G .C. Exhs. 149A
through 149I), all hired in 1974 , were not then (or some
ever) laid off or terminated . No line supervisor was
produced to testify to any work shortcoming on the part of
Ms. Aguirre . Upon the entire record , it is found that the
reason or reasons advanced by Respondent for its termina-
tion of Julia Aguirre were pretextuous , the real reason being
her Distributive Workers District 65 activism and her
refusal to join Teamsters Local 806.
(5) Francisco Altamirano
Francisco Altamirano , who entered Respondent's em-
ploy on November 16, 1973 , and worked there only 5
months until his termination in April 1974 under circum-
stances not here disclosed since he failed to testify . There is
no indication of District 65 activity on his part other than a
late (December 5, 1973 ; G.C. Exhs . 11-25) membership
therein , as well as an earlier checkoff card (November 21,
1973; G .C. Exh . 100) executed for Teamsters Local 806.
Since his personnel folder shows an arguably poor atten-
dance and punctuality record, as well as a warning, during
his short-term employment, on the record presented it is
found that it has not been established by substantial
evidence that his termination was for any reason violative
of the Act.
(6) Miriam Arango
Miriam Arango, also apparently at one time known as
Miriam H . Rivera, was hired by Respondent on June 9,
1972, and terminated about 1 year and 11 months later, on
April 29, 1974. She did not testify and there is no indication
of any District 65 activity on her part other than mere
membership . While her personnel file shows no reason for
her termination , in the absence of testimony on her part I
am unable to speculate as to the reason therefor, which
could conceivably have been a sheer administrative error
which, while regrettable, may not have been violative of the
Act. Upon the record , presented, I find that it has not been
established by substantial evidence , as required, that
Miriam Arango 's terminati on was for a reason violative of
the Act.
(7) Maria Elena Arguello
Maria Elena Arguello entered Respondent 's employ as a
production worker at its Jersey City plant on February 22,
1970, continuing there in that capacity until her precipitate
termination 4-1/2 years later , on August 22, 1974 , without
advance notification . She was also an early petitioner for
(G.C. Exh . 14) as well as card signer (G.C. Exh. 18) and
dues-paying member (G.C. Exh. 15) of, Distributive Work-
ers District 65, attended all of its many meetings, and also
wore its "hat" at her workplace . In March 1974 , she was
directed by her supervisor, Presutti, to report to the plant
cafeteria, where she was confronted by Teamsters Local
806 spokesmen Vazquez, Ocana , and Peneherera and
others . Peneherera stated to her that "as a friend" he would
give her a "friendly suggestion" to sign a Teamsters Local
806 card or if not she could lose her job. She indicated she
would think it over . Ultimately, on June 19 ( 1974), she
signed the Local 806 card because "I was afraid to be
dismissed from the job ." She nevertheless received a
telegram on August 22, while at home sick , stating that she
was dismissed and to call for her paycheck . When her
husband did so that day, he was given a notice that she had
been terminated for "poor work performance ." She finally
gave up attempting to ascertain from Personnel Manager
Morales why she had been discharged because he was
always allegedly unavailable to talk to her. Crediting her
uncontradicted testimony indicating that she had an
essentially good work record for 4 - 1/2 years, and in the
absence of any testimony from any line supervisor to the
contrary, it is found upon the record as a whole that the
reason assigned by Respondent for her termination was
pretextuous , the real reason being her Distributive Workers
District 65 activism.
(8) Irma Avellaneda
Irma Maria Avellaneda entered Respondent's employ as
a production worker on October 9, 1967 (G.C. Exh . 156), as
production worker at the Jersey City plant , remaining there
in various capacities under that job heading until she was
terminated precipitately and without notice at the end of
her workday 6 years and 8-1/2 months later, on June 21,
1974. She had been an early petitioner for (G.C. Exh 14) as
well as card signer (G.C. Exh . 18) and dues-paying member
(G.C. Exh. 15) of Distributive Workers District 65 , attend-
ed perhaps over 20 of its meetings , and openly discussed
that labor organization as "a good union and that we had to
fight for it." Around March 1974 during working time she
was told she was being awaited in the plant cafeteria; when
she arrived there , she was met by Teamsters Local 806
spokesman Ocana , who informed her that she "had to sign
the [Teamsters Local 806] card, that if not, [you] would be
dismissed." She refused , declaring, "Well, all right, but I
still will not sign the card." And she never has. On June 21
(1974), at the end of her 8-hour workday, her supervisor,
Presutti, instructed her to report to the personnel office,
where she was handed paychecks through that day and
Personnel Manager Morales told her he had "received
orders concerning [you] ... from Harrison" (i.e., company
headquarters), adding that "possibly [we] would call [you ]
back within two weeks ." But she has not been recalled. She
learned later that her termination notice stated that she had
been terminated for "poor work performance ," but at no
time had Morales or anybody else suggested that. During
her 6 years and 8-1/2 months of employment at the plant at
no time had her work or conduct been criticized in any way.
Her testimony is uncontradicted by any line supervisor,
none having been produced to testify , and there is no proof
whatsoever that her work was in any way poor or
unsatisfactory. Crediting the testimony of this employee of
close to 7 years' standing with an excellent work record, I
find that the reason advanced by Respondent for her
termination was spurious and pretextuous , its real reason
being her Distributive Workers District 65 activism and her
opposition to and refusal to join Teamsters Local 806.
HARTZ MOUNTAIN CORP. 541
(9) Elesa Bello
Elesa (Elisa) Bello entered Respondent's employ as a
production worker at its Jersey City plant on February 5,
1969, continuing there in that capacity in different job
assignments until her summary termination without notice
at the end of her workday on July 19, 1974, approximately
5-1/2 years later . She was an early card signer for (G.C.
Exh. 11-14) and dues-paying member of (G.C. Exh. 15)
Distributive Workers District 65. Additionally, she was an
active worker on behalf of that Union , wore its distinctive
button at work, and campaigned openly on its behalf
among the workers . She never signed a Teamsters Local
806 card . While at work in April 1974 , she was summoned
to the plant cafeteria , where she was met by Juan Vazquez
(shop steward for Local 806) and his aide Emerson
Peneherera , who told her to sign a Local 806 card. When
she declined , Peneherera said she would be out of a job the
next day if she did not , and that if she returned to the plant
she would be put out by the police . She nevertheless
persisted in her refusal to sign, stating that she had already
signed up with District 65. At the end of her regular
workday on July 19, 1974, her supervisor , Presutti, instruct-
ed her to report to Personnel Manager Morales' office,
where she (and a few other women employees ) was told to
return on Monday . When she did so, she was paid off and
handed a termination notification stating the reason as
"poor work performance." Crediting the testimony of this
highly impressive witness indicating that her work perfor-
mance in her 5-1/2 years in her job had been substantially
satisfactory, and in the absence of any testimony from any
line supervisor to the contrary, I fmd that the reason given
by Respondent for her termination was pretextuous , its real
reason being her loyal adherence to Distributive Workers
District 65 and her activities on its behalf, as well as her
refusal to join Teamsters Local 806.
(10) Fulvia Benjumeda
Fulvia Benjumeda worked for Respondent at its Jersey
City factory from March 9, 1972, to August 9, 1974 (2 years
and 5 months), when she was terminated , allegedly for
"poor work performance" (G.C. Exh. 105). She did not
testify here , and there is no evidence of any activity on her
part in or on behalf of Distributive Workers District 65
beyond mere early support and membership . Since there is
also no evidence of the nature of her job performance, and
her personnel folder (G.C. Exh. 105) shows an arguably
unsatisfactory punctuality and attendance record, I am
unable upon the record presented and without speculation
to find that her termination was for a reason violative of the
Act. It is accordingly found that it has not been established
by substantial evidence that her termination was violative
of the Act.
(11) Damiana Cancel
Damiana Cancel (Cansel) entered Respondent's employ
as a production worker at its Jersey City plant on February
10, 1970, continuing there until her precipitate discharge
without notice at the end of her workday on August 15,
1974, after 4-1/2 years on the job with no essential criticism
of her work performance or conduct . She was an early
petitioner for (G.C. Exh. 14), as well as card signer (G.C.
Exh. 18) and dues-paying member (G.C. Exh. 15) of,
Distributive Workers District 65. She also attended all of its
many meetings and campaigned actively on its behalf. On
two occasions around April 1974, she was instructed to go
to the cafeteria ; there she was told by Teamsters Local 806
spokesman Ocana to sign a card for that Union , but she
refused. At the close of her working day on August 15,
1974, she was summarily terminated by Supervisor Presutti,
who handed her a paycheck through that day and a
termination notice which her husband later explained to
her was for "poor work," although her work had essentially
never come under criticism. No line supervisor was pro-
duced to contradict her credited testimony concerning the
quality of her work and the substantial absence of dissatis-
faction therewith . Crediting the testimony of this employ-
ee of 4-1/2 years' standing with an excellent work record, I
find that the reason assigned by Respondent for her
discharge was spurious and pretextual , the real reason
being her continued adherence to Distributive Workers
District 65 and her refusal to join Teamsters Local 806.
(12) Milagros Cancel
Milagros Cancel was employed as a production worker at
Respondent's Jersey City factory from November 26, 1973,
until her termination approximately 5 months later, on
April 19, 1974. The circumstances of her signing a card for
Teamsters Local 806 at the behest of Personnel Manager
Morales during her job interview have already been
described . She subsequently, after Christmas of 1974,
signed a card for Distributive Workers District 65. Her
employment was terminated by Respondent on April 19,
1974, 8 days after she was observed by Respondent Vice
President Kaye at the hearing of this proceeding in the
company of Distributive Workers District 65 supporters
and following her suspension from work 2 days after she
had thus been observed by Kaye at this hearing - the
foregoing being conceded by Kaye on cross-examination.
While the reason certified by Respondent to the New Jersey
unemployment insurance authorities for the termination of
Milagros Cancel was "lack of work" (G.C. Exh. 102), Kaye
testified at the hearing that this is "incorrect" and that the
real reason was "poor work performance" - as stated on a
termination of employment notice in her personnel file
(G.C. Exh . 102) dated May 3 , 2 weeks after her termination,
and which Kaye conceded he doubts she was given a copy
of. And, in a prehearing affidavit furnished by Kaye, he
swore on May 10, 1974, that "I know Milagros Cancel was
laid off but I don't know why" (G.C. Exh. 147). After first
denying he was aware of Milagros Cancel's support of
District 65 , Kaye conceded he did know it from observing
her in the courtroom here shortly before she was suspended
and then terminated . No line supervisor familiar with the
work of Milagros Cancel was produced by Respondent to
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testify that it was poor . While her case is not free from
doubt,198 on balance, considering Kaye's equivocal and
contradictory "explanations" and memory lapses concern-
ing the termination of Milagros Cancel , and Respondent's
unexplained failure to produce a line supervisor to testify
regarding her work performance , upon the record as a
whole I find that the reason or reasons assigned by
Respondent for her termination were pretextuous , the real
reason being the fact that she joined Distributive Workers
District 65 after she had signed a card - hereinabove
found to have been unlawfully procured with Employer
assistance - for Teamsters Local 806.
(13) Luz C. Cardona
Luz Celenia (Elenia) Cardona entered Respondent's
employ as a production worker at its Jersey City factory on
October 12, 1971 (G.C. Exh. 168), continuing there for
about 2 years and 10 months until she was summarily
terminated without notice on her return from vacation on
Monday, August 12 , 1974. She was an early petitioner for
(G.C. Exh . 14), as well as card signer (G.C. Exh. 18) and
dues-paying member (G.C. Exh. 15) of, Distributive Work-
ers District 65; she attended all of its numerous meetings
and displayed its button at work. She never signed a card
for Teamsters Local 806. In May 1974 she , together with
other employees, was told by Local 806 spokesman Eddie
Sanabria to sign Local 806 cards or face dismissal. She
refused to sign . On her return from vacation on Monday,
August 12, 1974, she was instructed by Supervisor Presutti
without advance notice to obtain her "layoff" papers in the
office. Her "layoff" papers consisted of a notice of
termination dated August 9, giving as the reason "poor
work performance ." Her credited testimony establishes that
at no time during her employment had her work conduct in
any way been criticized or brought into question . No line
supervisor was produced by Respondent to testify other-
wise. And, as in the case of other terminated employees
here under consideration, at the time she was terminated
employees junior in job seniority to her were retained in
Respondent's employ despite its seniority policy and the
terms of the "collective agreement" to which it strongly
asserts here it is a party. Upon the record as a whole, I fmd
that the reason advanced by Respondent for the termina-
tion of Luz C. Cardona was pretextuous, the real reason
being Respondent 's desire to rid itself of a loyal Distribu-
tive Workers District 65 adherent who refused to join
Teamsters Local 806.
iss While the attendance record of Milagros Cancel , as well as that of
some of the other terminated employees here in issue , may on the surface
seem to leave something to be desired , nevertheless on a comparative basis in
the aggregate of the many personnel folders here supplied of employees who
were either not terminated or who were retained in Respondent's employ,
Ms. Cancel 's as well as other terminated employees ' attendance records are
unremarkable . Respondent Vice President Kaye , who personally made the
termination selections here in issue , conceded on cross-examination that, for
example, 15 absences in a year is not extraordinary , and he was unable to
explain why employees with worse attendance records (Bonilla) were
retained , while those here in issue were terminated ; nor why employees with
substantial warnings in their files (Ramos) were retained in preference to
those with unblemished records who were here terminated ; nor why
employee Susan Siflinger, terminated on August 15, 1974, was - in contrast
to earlier terminated long-term employees here in issue, with unblemished
(14) Mariana Castro
Mariana Castro (Mariana Luiz deCastro) entered Re-
spondent's employ as a production worker in its Jersey City
factory in September 1968, continuing there in that capaci-
ty for 6 years until she was summarily terminated on
August 22, 1974, while on excused sick leave at home
following an automobile accident . She, also, was an early
petitioner for (G.C. Exh. 14), as well as card signer (G.C.
Exh. 18) and dues-paying member (G.C. Exh. 15) of,
Distributive Workers District 65; and she also had attended
its meetings . She never signed a card for Teamsters Local
806. Toward the end of January 1974 her supervisor,
Santiago, instructed her and a fellow employee to sign cards
for Local 806 or they "would be dismissed as of February
7th." She nevertheless refused to sign . On February 14 she
was involved in an automobile accident and was carried on
authorized sick leave at the plant. On or about August 22,
she received a telegram stating, "As of August 22nd 1974
your employment at the Hartz Mountain Corporation is
terminated" (G.C. Exh. 75). She denies ever receiving a
copy of a termination notice allegedly from her personnel
file, which states that she was terminated because of "poor
work performance" (G.C. Exh. 76). Her credited uncon-
tradicted testimony establishes that at no time during her 6
years of employment had she received any written or oral
criticism or other employer expression of dissatisfaction
with any aspect of her work or conduct. No line supervisor
was produced to dispute this in any way. Upon the entire
record, I fmd that the reason assigned by Respondent for
her termination was pretextuous, the real reason being her
continued adherence to Distributive Workers District 65
and her refusal to sign a Teamsters Local 806 card.
(15) Dominga Cintron
Dominga Cintron entered Respondent's employ as a
production worker in its Jersey City factory on April 11,
1971, continuing in that capacity for 3 years and 1 month
until her summary termination without notice on July 12,
1974. She also had been an early card signer (G.C. Exh. 18)
as well as petitioner (G.C. Exh. 14) for Distributive
Workers District 65, and a District 65 activist as well,
attending its meetings , wearing its distinctive button at
work, discussing and promoting it with fellow employees,
and distributing not only its membership cards but also its
literature and announcements of meetings. She never
signed a card for Teamsters Local 806. During working
time around March 1974, she was directed to go to the plant
records - reinstated shortly thereafter, in violation of Respondent's policy
of not rehiring discharged employees, except that he (Kaye) was aware that
Susan Silinger was a Teamsters Local 806 committeewoman. Numerous
other examples could be given , but they would take on encyclopedic form
and be inconsistent with the reasonable limits of decision writing as well as
reading, even in a case of this length and complexity. It may finally be noted
that among the employee personnel folders which Kaye conceded also
"evaluating" in connection with his "selections " for termination, were those
of Teamsters Local 806 leaders Vazquez, Sanabna, and Ocana (G.C. Exhs.
117, 118, and 119); although their work records, on a comparative basis,
seem to measure up quite poorly in terms of attendance, punctuality, and
otherwise, with records of employees here terminated, none of them, nor any
Teamsters Local 806 leader, as conceded by Kaye, was selected for
termination, for reasons unexplained here.
HARTZ MOUNTAIN CORP. 543
cafeteria ; someone else took her place at work while she
went to the cafeteria . There she was met by Local 806
spokesman Joaquin Ocana , who told her to "sign the
[Teamsters Local 806 ] cards because [you are ] just about to
be dismissed ." She nevertheless refused to sign and re-
turned to work . Subsequently, around May (1974), Ms.
Cintron visited the office of Personnel Manager Morales in
an attempt to get fellow employee Juanita Ortiz ' job back
for her . Morales promised to try to help. Thereafter , Juanita
Ortiz came to see Morales, accompanied by Ms . Cintron.
As they were in process of discussing Juanita Ortiz'
reemployment, General Manager Feinberg came in and
stated that if Ms. Cintron were a member of Teamsters
Local 806 Juanita Ortiz could start to work that very day.
This elicited the response from Ms. Cintron that she did not
care whether Juanita Ortiz worked there . Ms. Cintron did
not sign a Local 806 card and Ms . Ortiz was not reem-
ployed . Questioned concerning this incident , Feinberg
testified that he was unable to "remember ." At the end of
her workday on July 12, 1974 , Ms. Cintron was sent by
Supervisor Presutti to the office of Personnel Manager
Morales , where she was paid off and given a termination
notice stating it was for "not producing well enough."
When she asked Morales, "How come you wait three years
to tell somebody something like that," Morales answered,
"It has nothing to do with that, it is just a decision from
Harrison." The credited uncontradicted testimony of Ms.
Cintron - no line supervisor was produced to dispute it in
any way - establishes that during her 3-year employment
with Respondent she received no adverse comment what-
soever concerning her work . Upon the entire record, I fmd
that the reason assigned by Respondent for the termination
of Dominga Cintron was pretextuous , the real reason being
her activism on behalf of Distributive Workers District 65
and her refusal to join Teamsters Local 806.
(16) Maria Cruz
Maria Cruz (also apparently at one time known as a
Maria D. Colon) worked for Respondent for 3 years and 9
months, from July 23 , 1970, until her termination on April
19, 1974, allegedly for "poor performance" or for "lack of
material" (G.C. Exh . 103). She did not testify here. Aside
from her mere petitioning (G.C. Exh. 14) and card signing
(G.C. Exh. 18) for Distributive Workers District 65, there is
no indication of activity by her on its behalf ; nor is there
any evidence from her as to the nature of her work
performance while in Respondent's employ. Under the
circumstances , it is found that it has not been established by
substantial evidence that her termination was for any
reason violative of the Act.
(17) Marie Diana
Marie Diana entered Respondent 's employ as a produc-
tion line worker in its Jersey City factory on April 21, 1972,
continuing there in that capacity for 2-1 /4 years until her
summary termination without prior notification at the end
of her workday on July 12, 1974. She also was an early
petitioner (G.C. Exh. 14), as well as card signer (G.C. Exh.
18) and dues-paying member (G.C. Exh. 15) of, Distribu-
tive Workers District 65 . She was also a member of the
organizing committee of that Union , attended its meetings,
solicited members for it, and distributed not only its cards
but also its literature on the street in front of the factory as
well as inside the factory during nonworking time . She has
never signed a card for Teamsters Local 806 . During
working time toward the end of March 1974 , she was
summoned over the plant loudspeaker to go to the plant
cafeteria, where she was met by Local 806 spokesman
Ocana, who said to her, "Madam , we have sent for you
because you have to sign the [Teamsters Local 806 ] card to
assure your work." She refused to sign . At the end of her
workday on July 12 , 1974, she was instructed by Supervisor
Presutti to report to the personnel office, where Personnel
Manager Morales gave her a paycheck or checks through
that day and instructed her to return on the following
Monday to "receive the letter." When she did so , she was
given a termination notice stating it was based upon "Poor
work performance" (G.C. Exh . 171). Her credited uncon-
tradicted testimony establishes that at no time during the
term of her employment had her work in any way been
criticized, and no line supervisor was produced to testify to
the contrary . While her attendance record , as shown by her
personnel folder , could in the abstract be subject to
question (as to which , see fn . 198, supra) nevertheless, the
fact is that it was not, and Respondent was willing to
tolerate it. Upon the record as a whole, I am persuaded and
fmd that Respondent's alleged reason for terminating this
employee was pretextuous , its real reason being her
determined activism on behalf of Distributive Workers
District 65 and her refusal to join Teamsters Local 806.
(18) Gladys Diaz
Gladys (Carmen) Diaz entered Respondent's employ as a
production worker at its Jersey City factory on February
11, 1971 , continuing in that capacity for 3-1/2 years until
her summary discharge on Monday morning , August 19,
1974, upon return from vacation. She also had been an
early petitioner for (G.C. Exh. 14), as well as card-signer
(G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of,
Distributive Workers District 65, and attended its meetings
and wore its distinguishing button while at work. In
January or February 1974, she refused to sign a Teamsters
Local 806 card at the behest of its solicitor Joaquin Ocana.
In March 1974, while at work , she was instructed by
Supervisor Presutti's assistant to report to the plant
cafeteria, where she was met by not only Ocana but Juan
Vazquez, Eddie Sanabria , and Marta Toro - all Local 806
spokesmen . Although Ocana again warned her to "sign the
[Local 806 ] card and if not [you] would be dismissed," she
refused . She was away on account of illness from some time
in April until early May; at some time between her return in
May and July , she signed a Local 806 card in order "to be
able to receive the benefits, like medical coverage and so
forth, so I could get compensation for my expenses for my
operation," but she received none. On Monday morning,
August 19, 1974 , when she returned from vacation and
reported to work as usual, she found her timecard missing
from the rack, and was informed by a supervisor that she
was "laid off" and to report to the personnel office, where
she was given a check for I day's overtime pay due her prior
to her vacation , together with a termination notice . She was
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not paid for that or part of that day; and, after waiting for
about 2 hours to see Personnel Manager Morales for an
explanation, she left without speaking to him . Her husband
later translated the termination notice to her; it states as the
reason for her termination , "Poor work performance" (G.C.
Exh. 73). However, as established by her credited uncon-
tradicted testimony - no line supervisor was produced to
dispute her testimony in any way - at no time during her
3-1/2 years of employment had there been any expression
of dissatisfaction with her work . She also testified at the
hearing that the day prior to her testimony (i.e., on
Monday, September 30, 1974), she had been recalled to
work and had arranged to report back on October 2, 1974,
but that she did not know at what job or pay or for how
long. Upon the entire record, I ford that Respondent's
alleged reason for terminating this entirely satisfactory
employee was pretextuous , the real reason being her
continued activities on behalf of Distributive Workers
District 65 and her initial refusals to join Teamsters Local
806.
(19) Luz Fabiola Diaz
Luz Fabiola Diaz entered Respondent's employ as a
production worker in its Jersey City factory on March 24,
1972, continuing in that capacity until her summary
termination 2 years and 2 months later, on May 3, 1974,
because of "Raw material shortage, shipping and transpor-
tation problem . We expect that this situation will be
corrected soon" (G.C. Exh. 70), but she has never been
recalled . She was an early petitioner for (G.C. Exh. 14), as
well as card signer (G.C. Exh. 18) and dues-paying member
(G.C. Exh. 15) of, Distributive Workers District 65; became
an elected member of its organizing committee at its second
meeting in May 1973 and has remained such ; attended all
of its numerous meetings ; and has been extremely active on
its behalf, including addressing employees at its meetings.
She has continued to refuse to join Teamsters Local 806. In
November 1973 Juan Vazquez offered her a membership
on the Local 806 committee if she joined that Union, but
she refused, pointing out that she was a member of the
District 65 committee and "certainly would not betray my
co-workers." When Vazquez responded that membership in
Local 806 was essential since the Company "was not ready
to recognize [District] 65," Ms. Diaz replied that she
"would certainly keep on fighting to the end for the
[District ] 65" and that Vazquez was acting on his own and
would not have her support . Subsequently , on March 28,
1974, while she was working , she was directed by Supervi-
sor Presutti - who was with Teamsters Local 806 Commit-
teewoman Mary Arlington - to report to the plant
cafeteria , where she was met by Local 806 spokesman
Ocana, who asked her if she had signed a card for Local
806. She said she had not ; when he asked her to do so, she
refused . Although , according to the termination notifica-
tion received by her from Respondent she was not
discharged or terminated for any reason related to her work
performance (supra), her work record has been satisfactory
to Respondent - including a March 1973 reinstatement
following a brief discharge or suspension for holding or
eating a piece of orange handed to her by another employee
while at work . No line supervisor was called to testify that
her work was in any way unsatisfactory. As also indicated,
however, although she was according to her termination
notification only temporarily furloughed, she has never
been recalled . Other proof, described below, establishes
that subsequent to her layoff many new employees were
hired . Upon the record as a whole, I find that the reason
assigned by Respondent for her termination - attempted
to be changed by Respondent at a late stage of the hearing
to be "unsatisfactory work" - was pretextuous , the real
reason being her activism on behalf of Distributive Workers
District 65 and her refusal to join Teamsters Local 806.
(20) Natalia Esquilin
Natalia Equilin worked for Respondent for over 6 years,
from August 8, 1968 , until her termination on August 23,
1974, allegedly for "poor work performance" (G.C. Exh.
104). Since she did not testify here , there is no proof of any
activity by her on behalf of Distributive Workers District 65
beyond petition signing (G.C. Exh. 14) and card signing
(G.C. Exh. 18), dues-paying (G.C. Exh. 15) membership.
She also apparently executed a checkoff card for Teamsters
Local 806 on April 29, 1974 (G.C. Exh. 104). Nor is there
any testimony regarding the nature of her work perfor-
mance during the term of her employment . Under the
circumstances , there appears to me to be insufficient basis
for a finding that - notwithstanding her long term of
employment with Respondent - her termination was for a
reason violative of the Act . It is accordingly found that it
has not been established by substantial evidence that she
was terminated in violation of the Act.
(21) Arvada Flores
Amada Flores entered Respondent 's employ on Septem-
ber 2, 1969, as a production worker in its Jersey City plant,
continuing there in various capacities within that general
work category for 4 years and 11 months until her summary
termination without previous notification at the end of her
workday on August 9 , 1974, allegedly for "poor work
performance" (G.C. Exh . 59). She also had been an early
petitioner for (G.C. Exh . 14), as well as card signer (G.C.
Exh. 18) and dues-paying member (G.C. Exh. 15) of,
Distributive Workers District 65 ; and she attended all of its
numerous meetings and took an active part in discussing
the instant proceeding with her fellow employees . Around
March 1974, while she was at work ; her name was called
out and she was instructed to report to the plant cafeteria,
where Teamsters Local 806 spokesman Ocana presented
her with a Local 806 card and told her, "You have to sign a
card for the [Local ] 806 to avoid problems later on."
Nevertheless she refused to sign it. However , on June 26,
after she received a plea for money from a member of her
family in Ecuador, she signed a Local 806 card in order to
"save my job," and transmitted the card to Respondent
General Manager Feinberg . At the end of her workday on
August 9, 1974, she was told by Supervisor Presutti,
"Layoff, Arvada," and to return on the next workday
(Monday) for her paycheck. When she returned on Mon-
day, she attempted to see Personnel Manager Morales but
was informed he was not in. She was at the same time
handed a check for pay through the past Friday and a
HARTZ MOUNTAIN CORP. 545
termination slip giving as the reason "poor work perfor-
mance" (G.C. Exh. 59), although this had at no time been
indicated to her and she had a good work record in her
almost 5 years at the plant.199 When she thereupon sought
out Supervisor Presutti for an explanation, he was unable to
provide any but, displaying incredulity, moved his head
from side to side, muttering, "Oh, Baby!" And her
testimony confirms what is otherwise independently estab-
lished, as shown below, that at and around the time she was
terminated, employees junior to her were retained and that
new employees were hired. No line supervisor testified to
any work shortcoming on her part. Upon the entire record,
I find that Respondent's assigned reason for terminating
Amada Flores was pretextuous, its real reason being her
concerted protected activities on behalf of and her contin-
ued adherence to Distributive Workers District 65, and her
initial refusals to join Teamsters Local 806.
(22) Alejandrina Fontanez
Alejandrina (Alexandria) Fontanez (Fontanes) entered
Respondent's employ as a production worker at its Jersey
City plant on February 25, 1969, continuing there in that
capacity for 5 years and 2-1/2 months until her precipitate
discharge without prior notification at the end of her
workday on May 10, 1974. She also was an early petitioner
for (G.C. Exh. 14), as well as card signer (G.C. Exh. 18) and
dues-paying member (G.C. Exh. 15) of, Distributive Work-
ers District 65; she also attended its meetings and wore its
distinguishing button while at work in the plant. She also
refused to affiliate with Teamsters Local 806. In early
December 1973, she was approached by Local 806 spokes-
men Vazquez and Ocana, who solicited her to sign a Local
806 card. She refused, stating that she had already signed a
District 65 card. Ocana informed her that the Company
had indicated it did not "want" District 65 for its employees
and that District 65 "could not enter there"; and that if she
refused to sign a Local 806 card she would lose her job. She
nevertheless declined to sign a Local 806 card. Subsequent-
ly, around March 1974, while working she was told by
Marta Toro (a Local 806 spokesman) to go to the plant
cafeteria . She said she could not do so since she was
working. Marta Toro then spoke to Supervisor Presutti,
who came over to Ms. Fontanez and instructed her to
report to the cafeteria. There she was met by Teamsters
Local 806 spokesman Ocana, who presented her with a
Local 806 card to sign. She refused to sign it. Ocana then
told her that if she did not sign it she would be dismissed
from her job. She nevertheless continued to refuse to sign it
and has never done so . Near the end of her workday on
May 10, 1974, without prior intimation of any kind, she was
instructed by Supervisor Presutti to report to Personnel
Manager Morales, who informed her that "they were giving
me layoff." She demanded to know the reason, since she
had been working there for 5 years. General Manager
Feinberg came in at this point, and Ms. Fontanez said,
"You know I know some new employees have started to
work; then how come I am the oldtimer and I am the one
who is being laid off?" Morales replied that "he was very
sorry because . . . what I was saying to him was true but
that was a decision made by . . . Harrison.... He said he
had looked into the books and had seen I had a good
record. There he had no idea why.... " When she asked for
"papers so I could collect unemployment," Morales told
her "there are no such papers" but that "if you have any
problems you can call me and I will give a recommendation
for you." She has never been given any reason or explana-
tion for her termination, although entries only in her
personnel file state it was for "poor performance" (G.C.
Exh. 159). As in the case of all but one of the other
employees whose terminations are here in issue, at no time
did Teamsters Local 806 protest or present a grievance to
Respondent over the termination. The testimony of Alejan-
drina Fontanez is uncontradicted that at no time during her
5 years of employment with Respondent was her work
performance in any way criticized nor is her testimony
disputed that, on the contrary, her work performance was
praised by Supervisor Presutti. No line supervisor was
called by Respondent to establish the contrary. Upon the
entire record , I find that Respondent 's alleged reason or
reasons for terminating Alejandrina Fontanez were pretex-
tuous, and that the real reason was to rid itself of a loyal
Distributive Workers District 65 protagonist who had
continued to refuse to join Teamsters Local 806.
(23) Jacinta Fontanez
Jacinta Fontanez entered Respondent's employ as a
production worker at its Jersey City factory on February
11, 1971, continuing there it in that capacity for almost 3-
1/2 years until precipitately terminated without prior
notification upon her return from vacation on Monday
morning, July 8, 1974. Although her termination notice
states the reason for her termination was "poor work
performance" (G.C. Exh. 52), at no time during her 3-1/2
years on the job had her work performance in any respect
been criticized nor drawn into question in any way. She
also was an early card signer for Distributive Workers
District 65 (G.C. Exh. 18), wore its distinguishing button in
the plant, attended its meetings, and participated in group
discussions regarding its supposed merits and its affairs.
She also refused to affiliate with Teamsters Local 806.
Around March or April 1974, on instructions of her
supervisor, she reported to the plant cafeteria, where she
was confronted by Local 806 protagonists Vazquez and
Ocana, who "told me they had sent for me to see if I would
cooperate with them and if I would sign the [Teamsters
Local 8061 card. And I told him no. Then he said if I did
not sign the card, I would be dismissed from my job.... [I
said] that I will sign nothing because I had been told that
there was no union, that I had signed for the [District] 65,
and that I could not go on signing that card.. . . He said,
`That's fine. You can go.' " When Jacinta Fontanez
returned from her vacation on Monday morning, July 8,
1974, she was told by her supervisor to report to Personnel
Manager Morales, who handed her a check or checks for
pay due her (but not including July 8, although she had not
been informed not to come in to work), together with a
199 She candidly avowed several seemingly trifling work "discrepancies"
which had evoked supervisory displeasure, but none of which has been
shown even to be reflected in any file or record.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
termination notice stating she was terminated for "poor
work performance" (G.C. Exh . 52), although her work
performance had never been criticized or questioned in any
way; indeed , she had not even ever been absent or tardy.
When she asked Morales the meaning of this he replied,
"that he really did not know because those papers were sent
from Harrison ." Crediting the testimony of this impressive
witness, uncontradicted by any line supervisor, I find that
the reason assigned by Respondent for her termination was
pretextuous, the real reason being her protected concerted
activities on behalf of Distributive Workers District 65 and
her refusal to join Teamsters Local 806.
(24) Maria Gonzalez
Maria J. Gonzalez (Gonzales) entered Respondent's
employ as a production worker at its Jersey City factory on
January 27 , 1971, continuing there in that capacity until her
termination without previous notification or intimation at
the end of her workday on August 9, 1974 , over 3-1/2 years
later, allegedly for "poor work performance," but in those
3-1/2 years she had received no criticism or adverse
comment of any kind concerning her work or conduct. She
was still another of the early petitioners for (G .C. Exh. 14),
as well as card signers (G.C. Exh. 18) and dues-paying
members (G.C. Exh. 15) of, Distributive Workers District
65; and she also wore its distinctive button at work and
attended most of its many meetings . In March 1974, while
working , she was told to go to the plant cafeteria , where she
saw Teamsters Local 806 representatives seated at various
tables . She was directed to the table where Vazquez and
Ocana were seated; there, Ocana told her she was "in high
esteem" and "should sign the card for the [Local ] 806." She
declined to do so, stating that she had already signed a card
for District 65. Before leaving on her vacation starting on
July 22 , however, she signed a Local 806 card presented to
her by an emissary of Juan Vazquez with the message "so
that [you ] would not be fired ," and she did so because she
has small children and did not want to risk losing her job.
Subsequently, $ 10 was deducted from her pay for dues to
Local 806, which , however, did nothing to protest or
question her termination soon thereafter . On August 9, at
the close of her workday , discovering that her timecard was
not in the rack , she sought out her Supervisor Presutti, who
told her, "layoff' and to return on the next working day
(Monday) for her pay . In no way had he indicated, or did
he indicate , that her work was less than satisfactory. To her
knowledge , at the time of her termination many employees
doing the same work as she , but junior to her, were not
terminated . When she returned on Monday for her pay-
check through the preceding Friday, after the guard had
first denied her admission to the plant , she was also given a
termination notice stating as the reason , "poor work
performance" (G.C. Exh. 68) - translated for her by her
son when she returned home . No line supervisor was
produced to testify to any work discrepancy or shortcoming
on the part of this employee , whose impressively delivered
testimony concerning her work performance during her 3-
1/2 years of employment I credit . Upon the entire record, I
find that the reason assigned by Respondent for her
discharge was pretextuous, the real reason being her
adherence to and protected concerted activities on behalf of
Distributive Workers District 65 and her earlier refusals to
affiliate with Teamsters Local 806.
(25) Maria Lopez
Maria Lopez worked for Respondent in its Jersey City
factory from October 25 , 1971, for 2 years and 8 months
until she was terminated on July 3, 1974 , allegedly for "poor
work performance" (G.C. Exh . 106). She did not testify
here. Although she was an early member of District 65
(G.C. Exhs . 114 and 15), no activity beyond mere member-
ship has been shown (she also apparently signed a card for
Retail Clerks Local 888 ; G.C. Exh. 8); nor is there any
showing as to the nature of her work performance while on
the job. Under these circumstances , I am unable to
determine whether her termination was for a reason
violative of the Act, and I accordingly find that it has not
been established by substantial evidence that her termina-
tion was for a reason in violation of the Act.
(26) Wilfredo Lorenzana
Wilfredo Lorenzana (Lorenzano) worked as an order
picker in Respondent's Jersey City plant for less than 5
months, from November 27, 1973 , to April 19, 1974, when
he was terminated, allegedly for "poor work performance"
(G.C. Exh . 107), although Respondent 's report to the New
Jersey unemployment insurance authorities states "Lack of
work . . . permanent." The circumstances of his employer-
assisted enlistment into Teamsters Local 806 membership
have already been described in a previous connection
(supra). Subsequent to this, in mid-December 1973 (accord-
ing to his testimony) or in January 1974 (according to his
prehearing affidavit , Resp . Exh. 6), he signed a card for
Distributive Workers District 65. In mid-January 1974, he
demanded his Local 806 card back from Personnel Manag-
er Morales, also stating to the latter that he had not
authorized a continuing union dues deduction from his
wages to that Union (Local 806). Morales informed him
that was not possible because he could not work there
without belonging to that Union (i.e., Local 806). Accord-
ing to his testimony, Lorenzana the next day reported the
matter to the Regional Office of the National Labor
Relations Board. There is no indication of any protected
concerted activity on Lorenzana 's part other than his mere
signing of a card for District 65 in December 1973 or
January 1974; and no testimony regarding the quality of his
work performance . Since his personnel file (G .C. Exh. 107)
indicates he received two work warnings and further shows
what appears to be an atypically poor attendance and
punctuality record during his short 4-3/4-month tenure of
employment, I am unable upon the basis of this record to
say that his termination was not for the reason stated by
Respondent in the personnel file entry , and I accordingly
fmd that it has not been established by substantial evidence
that his termination was for a reason violative of the Act.
(27) Jose Maisonet
Jose Maisonet worked in Respondent 's Jersey City
factory for about 5-1 /2 months, from November 13, 1973,
to April 26, 1974, when he was terminated, allegedly for
"poor performance" (G.C. Exh. 150) or for "poor produc-
HARTZ MOUNTAIN CORP.
tion," although Respondent 's certificate to the New Jersey
unemployment insurance authorities states "Lack of work
... permanent." As has already been described in another
connection (supra), he signed a card for Teamsters Local
806 in January 1974 which was predated to November 27,
1973 by somebody other than him and he also signed a card
for Distributive Workers District 65, according to his
testimony, in February 1974. Also according to his testimo-
ny, when he was terminated on April 26, 1974, he was told
he was being "laid off" for a few weeks and would be
among the first to be recalled. He has not been recalled to
work. Upon the record as a whole, including slight
indication of activity on behalf of District 65 other than
mere membership therein and wearing its button,200 and
the seemingly atypically long list of attendance defalcations
disclosed by his personnel record considering his short term
of employment, I cannot fairly say that the evidence
presented preponderates in favor of a fording that his
employment was not terminated for the reason advanced
by Respondents in his personnel file. It is accordingly
found that it has not been established by substantial
credible evidence that he was terminated for a reason
violative of the Act.
(28) Lucia Malave
Lucia Malave entered Respondent's employ on January
20, 1970, as a toy packer, remaining in her job in that
capacity and also as a stocking filler and production worker
until August 9, 1974, or a period of 4 years and 7-1/2
months, when she was precipitately terminated without
notice at quitting time by Supervisor Presutti, who told her
she was being laid off. When her husband picked up her
paycheck on the next workday, it was accompanied by a
termination notice stating she had been terminated for
"poor work performance" (G.C. Exh. 56). Her testimony
that her work performance had at no time been criticized,
except for a minor matter testified to by her but not even
reflected in her record, during her more than 4-1/2 years at
the plant, is undisputed and borne out by her personnel
record (G.C. Exh. 161). She had signed a District 65 card
and paid dues in June 1973 (G.C. Exhs. 18 and 15) and had
signed its petition in May (G.C. Exh. 14); she attended all
of its meetings and openly took part in discussions
concerning it in the plant. In March 1974 she was called to
the plant cafeteria and told to sign a Teamsters Local 806
card or else "later on [you] would have problems with the
company." She refused to do so. However, after her
husband Pascual Malave had been discharged, allegedly for
not signing a Local 806 card, she signed one, without dating
it, and returned it to Ocana through her husband. There is a
total absence of evidence to support Respondent's conclu-
sory contention that "poor work performance" was the
reason for her discharge. I ford that that "reason" was
pretextuous and that the real reason for her discharge was
her continued support for Distributive Workers District 65
and her initial refusal to join Teamsters Local 806.
200 He also testified that General Manager Feinberg told him , "If [you I
want[ed] to keep [your ] job with the company [you] should remove the
button "
201 Malave's personnel file also contains a July 25, 1974, letter - i.e,
during the pendency of this hearing - from Local 806 counsel to
547
(29) Pascual Malave
Pascual Malave, the husband of Lucia Malave, entered
Respondent's employ on May 11, 1967, and continued
there as a "floorboy" and as a machine operator and
checker for over 7 years, until his precipitate termination at
the end of the workday on May 31, 1974. He had signed a
card for Distributive Workers District 65 around May or
June 1973 , attended substantially all of its many meetings,
and openly discussed his interest in that Union around the
plant. Around March 1974 he was directed during his
working time to go to the plant cafeteria "to fill out the card
for the [Local ] 806"; although he went there, and saw Local
806 Business Agent Gonzalez with Vazquez and Sanabria,
he - as well as his wife , Lucia, who was also there -
refused to sign. Although there had been no criticism of or
fault found with his work during his more than 7 years at
the plant, at the close of the workday on May 31, 1974, he
was directed to go to the office of Personnel Manager
Morales, where he was paid off through that day, and told
by Morales that "[You] had an excellent work record in the
company [and I do] not know why they [are] giving [you]
layoff" and that "if [you ] would need a letter of recommen-
dation, [I] would give it to [you]." He has at no time been
given any explanation or reason, written or oral, for his
discharge without notice after over 7 years of faithful
service. On June 26, 1974, Malave returned to the plant and
saw Gonzalez and Ocana outside the plant. Ocana told him
to take a Local 806 card for his wife, Lucia, and have her
sign it - with the date left blank - since she also was
about to be fired and "would have the same problem that
[you] have had," and also to sign a Local 806 card himself
but to leave the date blank and he would get his job back.
Malave did so. He is "absolutely positive" the date was
June 26 because his nephew had bought a car the day
before. He returned his wife Lucia's signed Local 806 card
to Ocana, also with the date blank. His wife was, as shown
above, discharged without notice after over 4-1/2 years of
satisfactory service, following his discharge similarly with-
out notice after over 7-1/2 years of satisfactory service. He
was not rehired , nor was she. His personnel file (G.C. Exh.
153) contains an entry and an alleged termination notice -
which he was never given - stating that he was terminated
for "poor work performance." However, no work supervi-
sor testified concerning his work performance and his
personnel record is clear of even any suggestion of poor
work performance. Notwithstanding this, his personnel file
contains a copy of a form furnished by Respondent's
personnel office to the New Jersey unemployment insur-
ance office, dated June 18, 1974, stating that he was fired
for "poor work performance." 201 I was much impressed
with Malave's outstanding quality as a witness. No work
supervisor testified to dispute his testimony, which I credit.
And Respondent Vice President Kaye - who personally
made the selection of employees to be terminated, allegedly
on the basis of their personnel folders and discussions with
supervisors - conceded at the hearing that not only was
Respondent, demanding arbitration of Malave's discharge under the Local
806 collective agreement here in issue, with a copy to the New York state
board of mediation. There is no indication here as to whether this was
pursued.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there nothing in Malave 's personnel folder that played a
role in his termination , but he (Kaye) was also unable to
recall any discussion whatsoever with anybody concerning
Malave . As in the case of Malave's wife Lucia , there is not a
scintilla of indication for his discharge under the circum-
stances described, other than his participation in concerted
protected activities for District 65 and his initial refusal to
sign up with Local 806 . I find those were the true reasons
for his discharge , not the fictitious and pretextuous ground
now assigned.
(30) Elisa Martinez
Elisa Martinez entered Respondent 's employ on April 6,
1972, continuing there as a production worker until July 19,
1974, when, according to notations in her personnel file
(G.C. Exh. 108), she was terminated for "poor work
performance." Although she signed the petition for District
65 on May 16 (G.C. Exh. 14) and signed a card for that
Union on May 25, 1973 (G.C. Exh. 18), there is nothing to
indicate any other activity on her part in that or any other
Union, nor, since she failed to testify, is there anything to
indicate the circumstances under which she was terminated.
Her personnel file shows she sustained an industrial injury
in the plant on May 1, 1974, and an arguably comparatively
poor attendance record prior to that in 1974 as well as in
1973. Since upon the record as a whole and in the absence
of any testimony on her part the conclusion that her
termination was for engaging in protected concerted
activities would be unwarranted, it is found that it has not
been established by substantial credible evidence that her
termination was for a reason violative of the Act.
(31) Alejandrina Nieves
Alejandrina Nieves entered Respondent's employ on
October 25, 1971, continuing there in various work capaci-
ties without criticism , with only a single "exception",202
until her termination on August 22, 1974, allegedly for
"poor work performance" according to her termination slip
(G.C. Exh. 79). Ms. Nieves was an activist on behalf of
District 65 - she not only was an early adherent, petitioner
(G.C. Exh. 14), joiner (G.C. Exh. 18), and dues payer (G.C.
Exh. 15), but she also attended 15 to 18 or substantially all
of its meetings , she openly wore its distinguishing button at
work, and she openly proselyted other employees on its
behalf in the plant cafeteria. In February 1974, while at
work, she was directed to go to the plant cafeteria, where
she was asked to sign a Teamsters Local 806 card. When
she refused, she was told to write her name and clock
number on a piece of paper. When $10 was deducted from
her paycheck the following week, she asked her supervisor,
Presutti, why, since she had not signed up with Local 806.
However, nothing was done about it. When , the following
month, another $10 was deducted from her pay, this time
she visited Personnel Manager Morales and complained to
him, asking him how could money be deducted from her
202 August 4, 1974 - 3 weeks before her termination - when she
received a "warning slip" for going to Plant Manager Petrera's office
"without authorization" (G.C. Exh. 78A). Although she signed receiving this,
she does not read English . Ms. Nieves was one of eight employees receiving
such warning slips for going to Petrera's office to request a fan in view of the
intense heat in their area of the plant on that day. Respondent's issuance of
pay since she had not signed for Local 806. Morales said he
would refer the matter to "Harrison" (i.e., company
headquarters, where Vice President Kaye was located) to
"see if they could find a card of [yours ]." Again nothii
happened . When the next month another $10 was deducted
from her pay - for the third time, she returned to Morales
and again complained , this time firmly. Morales' only
answer was that he had "nothing to do with that" and he
referred her to "the Committee of the Union." She then
went to Vazquez (the Local 806 shop steward), who
demanded "the three receipts" from her and said he would
refer the matter to Local 806 Representative Gonzalez for
"investigation." She again heard nothing about it, but the
next month a fourth $10 was deducted from her pay. Upon
her return from a week 's sick leave in August , she was
terminated without notice at the end of her first day back,
her pay being accompanied by a termination slip (in
English, which she - as most other employees - could not
read) stating "poor work performance." She had worked
there for almost 3 years, with no criticism of her work as
such.20 The testimony of Ms. Nieves, an impressively
credible witness, is undisputed by any work supervisor. No
Local 806 card or dues-checkoff authorization has been
produced here for Ms. Nieves. Crediting her testimony, I
find that the alleged ground for her discharge was pretextu-
ous, and that the real reason was her protected concerted
activities on behalf of Distributive Workers District 65 and
her refusal to sign a card for Teamsters Local 806.
(32) Marta Ocasio
Marta (Maria) M. Ocasio was employed in Respondent's
Jersey City factory as a machine operator - also under
Supervisor Presutti - from February 19 to April 19, 1974,
when she was terminated . During her 2 months of employ-
ment her work was at no time criticized; on the contrary, it
was many times openly praised by her supervisor, Presutti,
who does not here dispute this. Although Ms. Ocasio never
signed a District 65 authorization card, she openly ex-
pressed opinions favorable to that Union in the plant; I
credit her testimony that, after she was hired in mid-
February 1974, the only reason she did not sign a District
65 card was that "I was waiting to sign it for the elections
... between the [Local] 806 and the [District] 65.11204 On
April 18, 1974, 1 day before her termination, she was
instructed by her supervisor, Presutti, to go to the plant
cafeteria, where Alex Ocana presented her with a Local 806
card to sign. She brusquely refused. The next day (April 19)
she (with some other employees) was again told to go to the
cafeteria. This time, Personnel Manager Morales informed
her (and the others) that it was "a very regretful thing ...
but [you are] being given layoff ... a temporary layoff
... the reason was a shortage of working material ... it
might take two to three weeks and that as soon as it would
be received, [you] would be called back." With her
paycheck, she received a slip stating about the same thing
these warning slips to these employees , including Ms . Nieves, under these
circumstances , constituting the basis for the final segment of the complaint
as amended at the hearing, is discussed infra, II, B, 4.
203 See fn . 202, supra.
2* It is not to be assumed that the factory workers here are savants of
labor law.
HARTZ MOUNTAIN CORP. 549
(G.C. Exh. 72). However, she has not been recalled
(although a large number of new employees have been
hired), and in its amended answer Respondent now alleges
that she was "discharged." I fully credit the testimony of
Ms. Ocasio, who demonstrated herself to be a witness of
high quality, and whose testimony is not disputed by any
work supervisor.205 Although she only worked for Respon-
dent for 2 months and had not joined District 65 (she was
an open and avowed supporter thereof), I am not satisfied
upon the record as a whole - including the shifting
"reason" assigned for her termination , the failure to recall
her, and the unexplained failure to produce any work
supervisor to counter her testimony - that the real reason
for Ms . Ocasio's precipitate termination was her refusal on
the day before that termination to sign a Teamsters Local
806 card after being directed by Supervisor Presutti (who
also does not dispute this) to go to the plant cafeteria for
that purpose. I so fmd.
(33) Virginia Otero
Virginia Otero entered Respondent's employ on April 17,
1967, at its Jersey City factory, and continued to work there
in various production assignments until her precipitate
termination over 7 years later, without notice about 15
minutes before quitting time on June 28, 1974. In her 7
years and 2 months of employment with Respondent, she
had received no work criticism whatsoever, other than a
lateness warning soon after her employment started. Ms.
Otero was an early joiner of Distributive Workers Local 65,
attended all of its many meetings, openly wore its button in
the plant, and openly solicited on its behalf in the plant
during lunch and other work break time. After she had
refused to sign a Teamsters Local 806 card for Vazquez in
November or December 1973, during worktime in March
1974 she was instructed , from a hand-carried list, to go to
the plant cafeteria, where she was told she "had to sign a
[Local 806] card because it will be such a pity if [you are]
dismissed after so many years that [you have] been working
there." She did not sign. On June 28, 1974, at or about 15
minutes before her workday was over, Supervisor Presutti
told her to go to the personnel office, where Personnel
Manager Morales handed her a paycheck or checks for her
pay through that day, together with a termination slip. She
asked Morales why she was being let go after 7 years of
employment. Morales answered that he did not know, did
not even suggest poor work or any other reason, but
remarked that it "was a problem from Harrison." Her
termination slip states "poor work performance" (G.C.
Exh. 48). Crediting Ms. Otero's testimony, and considering
Respondent's unexplained failure to produce as a witness
any work supervisor of hers,206 and upon the record as a
whole including this employee's personnel folder (G.C.
Exh. 154), I fmd that Respondent's alleged reason for
terminating Ms. Otero after over 7 years of faithful and
efficient job performance, was false and pretextuous, and
that the real reason for that discharge was her protected
concerted District 65 activities and her failure to join
Teamsters Local 806.
(34) Cecilia Pacheco
Cecilia Pacheco (Pachaco) entered Respondent's employ
on September 28, 1970, continuing there in various produc-
tion jobs for over 4 years until precipitately discharged
without notice at the end of her workday on August 9, 1974.
Ms. Pacheco was among the early and consistent advocates
of Distributive Workers District 65 - including petition
signing (G.C. Exh. 14), card signing (G.C. Exh. 18), and
dues paying (G.C. Exh. 15), openly wearing its distinguish-
ing button in the plant, attending all of its many meetings,
and speaking for it among plant employees. Like other
employees here in issue, she at first refused to sign a
Teamsters Local 806 card, even when directed to go to the
plant cafeteria for that purpose; in July 1974, however,
amidst general talk at the plant that District 65 adherents
were being discharged, she signed a Local 806 card.207 On
August 9 (Friday) she was told by Supervisor Presutti, from
a list in his hand, that she was 'laid off' and to return on
Monday for her paycheck. When she returned on that
Monday, August 12 , she was given a paycheck through
August 9, together with a termination slip citing "poor work
performance" as the reason (G.C. Exh. 87). She was unable
to read or understand it, but her husband explained it to her
later. Her testimony that at no time during her 4 years on
the job was her work in any way criticized in any way, in
writing or orally, is undisputed by any work supervisor, is,
borne out by her personnel record (G.C. Fxh. 163), and is
credited. Upon the record as a whole, I am convinced in
this instance also and accordingly fmd that the reason
advanced by Respondent for its termination of Cecilia
Pacheco was pretextuous, and that the real reason was her
Distributive Workers District 65 protected concerted activi-
ties and her initial refusal to join Teamsters Local 806.
(35) Elsa Pacheco
Elsa Pacheco, daughter-in-law of Cecilia Pacheco who
was terminated on August 9, 1974, and whose case has just
been discussed, was employed by Respondent as a produc-
tion worker from February 24, 1970, for 4-1/2 years until
her precipitate discharge without notice as of August 21,
205 For example , without explanation Respondent Supervisor Presutti -
the work supervisor of many of the terminated employees , prominently
mentioned by them , as has already been noted and will be further seen -
was not produced to testify so as to controvert their testimony concerning the
absence of any criticism of their work , or otherwise in any way to dispute
their testimony.
206 Concerning Ms. Otero, Respondent Vice President Kaye - who
allegedly personally decided which employees here were to be terminated -
swore that "I looked at all of the files once [only] ... sometime in April"
and never thereafter . It is noted , however, that Ms. Otero was terminated at
the end ofJune . Kaye did not demonstrate a memory of this degree of acuity
during his testimonial performance at the hearing . Kaye also testified that
the decisive factor in the discharge of any employee was not the employee's
personnel file, but what Petrera or Oest told him; without explanation,
however, Respondent chose not to produce Petrera or Oest to testify, and
Kaye swore he was unable to remember what either of them told him
concerning any employee.
207 Like other employee witnesses, Ms. Pacheco testified that she did not
even know at this time that her employer had entered into a contract with
Local 806.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1974, allegedly for "poor work performance" (G.C. Exh.
123).208 Her testimony is undisputed that, except for an
incident about 2 years ago when she was eating near her
machine during breaktime , she had received no criticism of
any kind concerning her work during her 4-1/2 years of
employment with Respondent. She had joined Distributive
Workers District 65 in May 1973 soon after it started its
organizational efforts in the Jersey City plant (G.C. Exhs.
19 and 15), had attended all of its meetings , had actively
discussed its affairs with fellow employees throughout the
plant, and had openly worn its identifying button while at
work; her affiliation and sympathies with District 65 were
unconcealed and well known . On no less than three
occasions in the plant she was pressed, but refused, to
affiliate with Teamsters Local 806. In March 1974 a group
of employees , of which she was one, was instructed by
Respondent Foreman Presutti 208 to go to the plant cafete-
ria, where Local 806 spokesman Eddie Sanabria informed
them that they "had to sign the card [for Local 806 or you]
would be soon dismissed and [you] would have no right to
collect unemployment ." She nevertheless refused to sign a
card for Local 806. When she was again told to go to the
cafeteria, about 2 weeks later, for the same purpose, this
time she declined even to go. Around 3 weeks later she
again refused to go to the cafeteria for the same indicated
purpose . In July (1974), however, in a context of a
discussion of layoffs, she finally signed a Local 806 card.
There is no credible proof whatsoever , including no
testimony by any line supervisor, that Elsa Pacheco's work
performance was "poor" or in any other way unsatisfacto-
ry. In the absence of such proof, General Counsel having
also in this instance as well as in the others here involved
made out a prima facie case, and considering this employ-
ee's clearly expressed preferences for Distributive Workers
District 65 coupled with her distaste for Teamsters Local
806, I find, within the context of the record as a whole, that
Respondent 's alleged reason for her summary discharge
after a 4-1/2-year record of satisfactory work performance
was pretextuous and that the real reason was her continued
affiliation with and activities on behalf of Distributive
Workers District 65 , and her initial refusals to join
Teamsters Local 806.
(36) Alida Pagan
Alida Pagan entered Respondent's employ in early
January 1974 as a second -floor machine operator , continu-
ing to work there until her termination without notice on
April 20, 1974. Her testimony is undisputed that at no time
in any way was there any criticism of her work . She signed a
Distributive Workers District 65 Union card in March
1974, attended its meetings , and openly wore its distinctive
button in the plant . Her son, Luis Ramos - also suddenly
discharged, on April 26, 1974, within a week after his
208 Elsa Pacheco's termination of employment notice (G.C. Exh. 123),
giving as "Reason for Termination.... Poor Work Performance ," is dated
August 22 , 1974, I day after her discharge as of August 21, when she was
absent . It is not claimed that this absence had anything to do with her
discharge.
209 This, as well as other employees ', testimony concerning Respondent
Supervisor Presutti - who functioned under General Manager Feinberg's
immediate subordinate , Production Manager Ernest Oest - is uncontrovert-
ed since , for unexplained reasons , Respondent chose not to produce Presutti
(or Oest) to testify
mother, as shown below - also worked at the Jersey City
plant . In March (1974), shortly before her discharge, Alida
Pagan was told by Teamsters Local 806 spokesman Joaquin
Ocana in the plant cafeteria to sign a Local 806 card which
he (Ocana) had filled out for her . After she at first demurred
because she is unable to read English and "I do not know
what this is about," nevertheless "I would say he forced me
to sign it . . . Alex . . . Joaquin Ocana ." 210 When she later
reported the incident to her son, Luis Ramos, he retrieved
the card from Ocana and tore it up . Shortly thereafter, on
April 30, 1974, she was taken to the office of Personnel
Manager Morales, who handed her a paycheck for pay
through that day and told her that "work was very slow.
At no time has she received any written notice of termina-
tion, nor has she ever been recalled to work although many
new employees have been hired . Considering, within the
frame of reference of the record as a whole , her openly
demonstrated voluntary affiliation with and sympathies for
Distributive Workers District 65, her described disaffilia-
tion from her induced "membership" in Teamsters Local
806, her unblemished though brief work record, and
Respondent's failure to recall her to work while at the same
time hiring many new employees of her category , I find that
the reason assigned for her termination was pretextuous,
the true reason being her continued attachment to Distribu-
tive Workers District 65 and her refusal to join Teamsters
Local 806.
(37) Daisy Pagan
Hired on February 5, 1969 , Daisy Pagan continued in
Respondent 's employ in various work capacities under
Supervisor Presutti , for over 5 -1/2 years until her summary
discharge without advance notice at the end of her workday
on August 23,1974, when she was paid off through that day
with a termination slip stating "poor work performance"
(G.C. Exh . 125). Not only had she been an early petitioner
on behalf of (G.C. Exh. 14) and joiner and dues-paying
member of (G.C. Exhs . 18 and 15), Distributive Workers
District 65 , but she was one of its chief promoters and
activists - she was a member of its organizing or
"Leadership" committee with Concepcion Pastrana, regu-
larly attended meetings, displayed its distinctive button at
work, and continuously proselyted fellow employees to join
that Union. She repeatedly refused to sign a card for
Teamsters Local 806 . Her work record during her 5-1/2-
year tenure of employment appears to have been at least
satisfactory overall,211 and Respondent has failed to come
forward with any showing to the contrary through either
any line supervisor familiar with her work or even through
her personnel file. Under all of the circumstances and upon
the record as a whole, considering the high degree of her
activities on behalf of employer-disfavored Distributive
Workers District 65 and her opposition to employer-fa-
210 After first denying recollection of whether he asked Ms. Pagan to sign
a Local 806 card , and following much equivocation , Ocana conceded he did
remember it but that he was allegedly unable to remember the circumstanc-
es, including whether it occurred during working time.
211 Although she conceded receiving a number of "warnings" for failure
to include her identifying number in boxes while she worked as a packer, her
testimony is uncontradicted that the last such was around 2 years prior to her
termination.
HARTZ MOUNTAIN CORP. 551
vored Teamsters Local 806, and Respondent's unexplained
failure to produce credible proof such as through a line
supervisor that her work performance was really poor or
unsatisfactory, I find that that reason was pretextuous and
that the real reason for Respondent 's summary discharge of
this 5-1/2-year employee was her activism on behalf of
District 65 and her refusal to join Teamsters Local 806.
(38) Enriqueta Pagan
Enriqueta (Enricata) Pagan entered Respondent's em-
ploy on April 27, 1967 (G.C. Exh. 170), as a packer in its
Jersey City factory and continued there in various capaci-
ties, including machine operator, for her final 4-1/2 - 5
years under Foreman Presutti, for a total of 7-1/4 years
until her summary discharge without advance notice at the
end of her workday on August 9, 1974. Her testimony is
uncontradicted that, with the exception of one or two
incidents - unreflected in her personnel file - the latest in
early 1973, involving her going to the ladies' room while
another employee was there, which was forbidden - no
dissatisfaction has been expressed with her work perfor-
mance. She was an early petitioner for (G.C. Exh. 14), as
well as card signer (G.C. Exh. 18) and dues-paying member
(G.C. Exh. 15) of, Distributive Workers District 65,
attended almost all of its many meetings , and openly
discussed its affairs with fellow employees at the plant. At
the end of March 1974, while at work - with some other
females, who had signed cards for Teamsters Local 806 and
who, although all junior to her, continued to be employed
at the plant after she was terminated - she was instructed
by Marta Toro, a steward for Local 806, to go to the plant
cafeteria, where she saw at several tables the leaders of
Local 806 activity, including Juan Vazquez and Joaquin
Ocana, who asked her to sign a Local 806 card. When she
refused, she was asked to write her name and timeclock
number on a sheet of paper, and Ocana independently
made a note of her name . At 4:30 p .m. quitting time on
Friday,212 August 9, 1974, discovering her timecard was not
in the timecard rack, she sought out Supervisor Presutti,
who told her he had removed the card and that "You are
being laid off. Come back Monday. You will get your
check." When she returned on Monday (August 12) she was
given a check for August 8 and 9 (Thursday and Friday)
and a termination slip (G.C. Exh. 55) stating the reason for
her discharge was "poor work performance." She is unable
to read English and was told that Personnel Manager
Morales was not in. While her personnel record (G.C. Exh.
170) indicates many absences due to illness , these were all
seemingly excused, and this was not assigned by Respon-
dent as the reason for her termination, nor does that record
compare unfavorably with those of other employees junior
to her who were not terminated by Respondent or who
have been retained in its employ (e.g., G.C. Exh. 116,
Dorothy Zimmerman ; G.C. Exh. 117, Juan Vazquez; G.C.
Exh. 118, Eddie Sanabria; G.C. Exh. 119, Joaquin Ocana or
"Alex Beltran ." See also , generally, fn. 198, supra). No
212 Friday is not the end of the workweek at Respondent 's Jersey City
plant . The workweek there runs from Thursday through Wednesday.
213 According to Ms Pelhccia, of the approximately 14 members of that
committee , only I - Concepcion Pastrana, its chairman - still remained in
Respondent's employ at the time of this hearing.
credible proof, including no testimony of any line supervi-
sor, has been adduced by Respondent to overcome General
Counsel's prima facie case here, nor to show that Enriqueta
Pagan's work performance was "poor" as stated in its
notice of termination, and her credited uncontroverted
testimony establishes the contrary. Within the referential
framework of the record as a whole, I find that the reason
assigned by Respondent for her discharge was pretextuous,
and that the real reason was her protected concerted
activities on behalf of Distributive Workers District 65
coupled with her failure to join Teamsters Local 806 under
the circumstances described.
(39) Gladys Pelliccia
Gladys Pelliccia entered Respondent's employ on June 6,
1972, continuing there as a machine operator and as a
packer until she was summarily terminated without previ-
ous notice at the end of her workday on Friday, April 26,
1974. Except for an admonition soon after she started work,
for stopping work after the whistle had sounded - she was
unaware that the signal that work was over was a second
whistle - her work performance has never in any way been
criticized, according to her uncontroverted credited testi-
mony. She was not only an early joiner of Distributive
Workers District 65 (G.C. Exhs. 18 and 15), but has always
been an active member of its organizing comntittee.213
When Emerson Peneherera - one of Juan Vazquez
lieutenants in Teamsters Local 806 plant recruitment
activities - asked her in late November or early December
(1973) to sign up with Local 806, she refused and has
continued to refuse to do so. Just before quitting time on
April 26, 1974, a Friday - as already stated, the plant
payroll workweek ends on Wednesday - Foreman Presutti
instructed her to go to the plant cafeteria, where she was
informed by Personnel Manager Morales that she was
being "laid off" because "there was not much material."
She asked Morales if it was in any way related to the Union.
Morales' reply was, "This I cannot answer" and that
"Possibly [you] would be [re]called." When she said she
"knew that was something from the union ," Morales was
silent. Although a certification furnished by Respondent to
the New Jersey unemployment authorities states - consis-
tent with what Personnel Manager Morales told Ms.
Pelliccia - that the reason for her termination was "lack of
work" (G.C. Exh. 151), notwithstanding this the termina-
tion notification for her in her personnel folder states the
reason was "poor work performance" - which was in no
way ever stated or suggested to her, and which is not
established by any credited testimony including the testi-
mony of any line supervisor familiar with her work.214 She
has never been recalled to work, although Respondent has
hired new employees in her work areas . Giving the various
factors described the weight they appear to deserve, within
the frame of reference of the record as a whole, and
considering Respondent's inconsistent reasons advanced
for Ms. Pelliccia's "layoff" or "discharge" and its failure to
214 While Ms . Pelliccia's attendance record shows absences including
illnesses, these were seemingly all excused and are on a comparative basis
unremarkable . Moreover, these did not form the predicate for her layoff or
discharge.
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recall her while hiring new employees, I find that the
reasons assigned by Respondent for her termination were
pretextuous, and that the real reason was her activism on
behalf of Distributive Workers District 65 and her failure to
affiliate with Teamsters Local 806.
(40) Eloisa Perez
Until her summary discharge without preliminary notice,
at the end of her workday on Thursday, August 15, 1974,
Eloisa (Aloisa) Perez had worked for Respondent as a
machine operator for almost 6 years, since her original hire
on October 7, 1968. The record presented - with no
testimony by any line supervisor familiar with her work -
indicates that her work was essentially satisfactory.215 She
had been an early petitioner for (G.C. Exh. 14), as well as
card signer (G.C. Exh. 18) and dues-paying member (G.C.
Exh. 15) of, Distributive Workers District 65. In March
1974 Foreman Presutti instructed her to go to the plant
cafeteria, where she was in effect given the choice of joining
Teamsters Local 806 or losing her job. She refused to join
Local 806, remarking that she could not be laid off after 6
years, but that in the event she were she would have to be
given unemployment insurance - evoking the response
that in that case she would have to "fight to get it." She was
indeed subsequently told by Foreman Presutti, at or about
10 minutes before quitting time on Thursday, August 15
(1974), that she was receiving a "layoff," although the
termination slip he handed her stated she was "terminated"
for "poor work performance." Upon the entire record, I
find that the reason assigned by Respondent for the
termination of Eloisa Perez was pretextuous, the real reason
being her continued loyal adherence to Distributive Work-
ers District 65 and her refusal to join Teamsters Local 806.
(41) Luis Ramos
Luis Enrique Ramos worked for Respondent as an order
picker from October 27, 1973, until his summary termina-
tion without advance notification at the end of the workday
on April 26, 1974, less than a week after the similar
termination of his mother, Alida Pagan, whose case has
already been considered (supra). Ramos' testimony is
uncontroverted that at no time during his employment with
Respondent had dissatisfaction of any kind been expressed
over his work or conduct.216 He - as did his mother later
- signed a collective-bargaining representational authori-
zation card for Distributive Workers District 65 in or
around December 1973. At or around the end of December
he was urged by Supervisor Santiago to sign a Teamsters
Local 806 card to assure his work continuance at the plant,
but he did not do so. In April 1974, a few days before his
termination, he was instructed on working time by his
forelady to go to the plant cafeteria. He did so. There he
observed Juan Vazquez, Joaquin Ocana, Eddie Sanabria,
and "an American lady." Ocana informed him that he
215 While, to her credit, Ms. Perez candidly volunteered on direct
examination that there had been some more recent (i.e., 1974) supervisory
dissatisfaction with the quality of her production, its nature was in no way
testified to by any line supervisor familiar with her work, nor did Respondent
produce her personnel file to indicate they were even in any way reflected in
her work record. In view of her long and otherwise apparently wholly
satisfactory tenure in Respondent's plant, I am unable to regard these -
(Ramos) had to sign a Local 806 card on pain of being
"dismissed." Ramos refused to sign and returned to his
work. A few days later, on April 26 (1974), just before
quitting time, Supervisor Presutti directed him to go to the
cafeteria, where Personnel Manager Morales informed him
and a few others that they were being released "temporarily
for . . . about two or three weeks" pending the Company's
receipt of supplies ordered but not yet delivered, and that
they would then be recalled. He was given a paycheck and a
slip stating, "We regret that we have to give you lay off due
to raw material shortage, shipping and transportation
problem. We expect that this situation will be corrected
soon." Notwithstanding this written confirmation of what
he was told orally by Respondent's personnel manager, he
has not been recalled. And, although Respondent' s assis-
tant personnel manager on May 8 (1974) certified to the
New Jersey unemployment insurance authorities that
Ramos had been separated for "lack of work," Respon-
dent's same official on June 25 (1974) certified to the New
York City Department of Social Services that Ramos'
termination was because of "poor work performance"
(G.C. Exh. 167). Under these circumstances, considering
Respondent's inconsistent assigned reasons for its termina-
tion of Ramos, a loyal District 65 member and an employee
with a good work record summarily terminated a few days
after he refused to join Teamsters Local 806, with the
assurance of recall upon receipt of an awaited merchandise
delivery - an assurance totally unfulfilled - I find, upon
the entire record, that the reasons assigned by Respondent
for his termination were pretextuous, and that the true
reason was his continuous loyalty to Distributive Workers
District 65 and his refusal to join Teamsters Local 806.
(42) Amalia Rivera
Amalia Rivera entered Respondent's employ as a packer
on May 11, 1972, continuing in the Jersey City plant in
various capacities on the first and second floors until
summarily terminated at the close of her workday on April
26, 1974. Her testimony is uncontroverted that at no time
during her 2 years of employment has her work perfor-
mance in any way been criticized.217 As in the case of the
other employees, she had received periodic wage increases
during the term of her employment. She was an early
petitioner for (G.C. Exh. 14) and joiner of (G.C. Exh. 18)
Distributive Workers District 65, attended its meetings, and
openly discussed its affairs with other plant employees.
Around March 1974, during worktime she was told by
Local 806 Shop Steward Marta Toro in the presence of Ms.
Rivera's supervisor, Robinson, and thereupon expressly
authorized by the latter to report to the plant cafeteria,
where she joined other employees who were met by
Teamsters Local 806 representatives including Joaquin
Ocana and Emerson Peneherera, who asked her to sign a
card for Local 806. She refused. At the end of the day on
whatever they were -as constituting the basis for her discharge.
216 While, to be sure, his personnel record (G.C. Exh. 167) is imperfect, it
is comparatively unexceptional . See fn. 198, supra.
217 As with other employees in this plant, while her attendance record is
seemingly quite spotty by absolute standards , placed alongside records of
other employees who were not terminated it appears unexceptional.
HARTZ MOUNTAIN CORP. 553
April 26 (1974), Supervisor Presutti instructed her to report
to the cafeteria , where she saw fellow employee Gladys
Pelliccia (supra), another employee, and Joaquin Ocana,
together with General Manager Feinberg and Personnel
Manager Morales . Morales handed her a paycheck through
that day with a letter stating, "We regret that we have to
give you lay off due to raw material shortage , shipping and
transportation problem . We expect that this situation will
be corrected soon . Thank you." Morales reiterated this
orally when Ms . Rivera asked him why she was being laid
off. However , notwithstanding this statement in both
written and oral form, two termination notices (April 29
and May 3) in her personnel folder similarly confirming
that she was being "laid off" for "lack of work" or "lack of
material," a certification to the New Jersey unemployment
insurance authorities that her separation was due to "lack
of work ," and the further notation in her personnel folder
"4/26/74 Laid Off - Lack of Material" (G.C. Exh . 152), at
no time has she been recalled to work , although new
employees in her areas of competence have been hired.
Under all of these circumstances and upon the record as a
whole, I find that the reason assigned by Respondent for its
layoff or termination of Amalia Rivera was pretextuous, the
real reason being its desire to rid itself of a Distributive
Workers District 65 loyal adherent who refused to become
affiliated with Teamsters Local 806.
(43) Lydia M. Rivera
Lydia M. Rivera worked in Respondent's Jersey City
factory in various capacities for 6 - 1/2 years, from February
1968 until her summary discharge on August 16, 1974, by
telegram while on vacation . Except for a single and
seemingly trifling (and by no means unparalleled ) incident
relating to an unaffixed number on a box , which her
uncontroverted testimony establishes did not involve her,
there was no expression of employer dissatisfaction with
her work during her 6 - 1/2 years of employment in the
factory. She was also an early petitioner for (G.C. Exh. 14),
as well as card signer (G.C. Exh. 18) and dues-paying
member (G.C. Exh. 15) of, Distributive Workers District
65, and attended its meetings ; she also at no time affiliated
with Teamsters Local 806 . Before going on vacation on July
29, 1974, she was asked by Supervisor Presutti , "Which
Union do you belong to?" She replied that it was District
65. On August 16, 3 days before she was due back from her
vacation, she received a telegram stating, "Effective August
16th you are terminated as employee of this company"
(G.C. Exh. 84). When she returned on August 19, she was
given a check and a termination notice stating she had been
discharged for "poor work performance" (G.C. Exh. 85).
She asked Personnel Manager Morales to explain the
meaning of "poor work performance" after 6-1 /2 years on
the job with her record . Personnel Manager Morales
answered that he had nothing to do with it, that it was the
Harrison main office's doing, and that he was "very sorry, I
[Morales] can 't do anything about it . It doesn't come from
me." When she asked if she should present the termination
notice to the unemployment insurance authorities , Morales
replied that she did not have to . Not only was the testimony
of Lydia Rivera, a most impressive witness, uncontradicted,
but she was not even cross-examined . Upon the record as a
whole, I find that the reason assigned by Respondent for
her termination was pretextuous , its real reason being to rid
itself of yet another Distributive Workers District 65 loyal
adherent who refused to become affiliated with Teamsters
Local 806.
(44) Mercedes Rivera
Mercedes Rivera was employed in Respondent's Jersey
City factory in various production capacities from April 27,
1967, for over 7 years until her summary discharge, without
notice, 10 minutes before the close of her workday , at 4:20
p.m. on May 10, 1974. She was not only an early joiner
(G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of
Distributive Workers District 65 , but also a member of its
organizational committee and one of its mainstay support-
ers, advocates, and spokesmen of that Union 's adherents
and followers in Respondent's plant . Loyally dedicated to
that Union to "the end," she was among its stalwart
defenders at the November 16 , 1973, meeting at the home
of Concepcion Pastrana - described in another connection
in an earlier portion of this Decision - at which (according
to corroborated credited testimony of Ms. Rivera) Juan
Vazquez announced that after meeting "with Mr. Feinberg
and the bosses" they had "told him [Vazquez ] to look for
another union, any other kind of union , but not the three
eights [i.e., Retail Clerks Local 8881 and the [Distributive
Workers District ] 65. Because they would never accept the
three eights or the 65"; and Vazquez thereupon split off
from the employees' committee and began actively prose-
lyting to install Teamsters Local 806 , with which Mercedes
Rivera steadfastly refused to associate herself . Without
previous notice or intimation, at 10 minutes before quitting
time on May 10, 1974, Supervisor Presutti instructed
Mercedes Rivera to report to Personnel Manager Morales'
office, without telling her why. She did so. With only the
two of them there , Morales handed her a final paycheck
and informed her, in Spanish , that she was being "laid off."
Since she had to catch the bus home, there was no time to
ask questions, but she returned on the next workday
(Monday) and asked Morales the reason for her "layoff."
Morales answered that the decision was not his, but "from
Harrison" (company headquarters); and he was merely
carrying out orders received from there; he knew she had
been employed in the plant for 7 years and was a good
worker ; it was due to scarcity of work. When Ms. Rivera
said that her seniority should be considered, since employ-
ees employed there for only a few months had not been laid
off, Morales fell silent . On both occasions (Monday and
preceding Friday) the English expression "layoff" was used
during running Spanish speech . At no time did Morales so
much as suggest there had been any dissatisfaction with the
work of Mercedes Rivera ; on the contrary, he praised her
as "a good worker." At no time did Morales indicate she
was being discharged . At no time during her 7 years of
employment had her work been criticized in any way. Her
personnel folder (G.C. Exh. 155) is singularly excellent and
clean by any standard. When she was thus "laid off," she
asked Morales for a termination slip, but he declined to
supply her one, stating he would notify the unemployment
insurance authorities directly . Nevertheless, at no time has
she been recalled although numerous new employees have
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been hired, and a termination slip appearing in her
personnel folder as well as Respondent's personnel office's
subsequent May 30, 1974, certification to the New Jersey
unemployment insurance authorities assigns as the reason
for her termination, "poor performance." No work supervi-
sor was produced here to testify to any such thing, or,
indeed, to anything adverse to Mercedes Rivera. Upon the
record as a whole, I unqualifiedly reject Respondent's
suggested reason or reasons for her termination as a pure
hoax and fabrication, spuriously perpetrated out of whole
cloth, and find that the true reason was her leadership and
activism on behalf of Distributive Workers District 65 and
her refusal to abandon that Union and the fellow workers
she represented and to affiliate with Teamsters Local 806.
(45) Rosa M. Rivera
Rosa M. Rivera worked in Respondent 's Jersey City
plant in various production capacities for over 6 years, from
July 22, 1968, until her summary discharge without previ-
ous notice at the end of her workday on August 23, 1974.
During her 6-year tenure she had received no work
criticisms, written or oral, other than a 3-day suspension in
1972 involving an altercation in which she was - according
to her uncontradicted testimony - threatened by another
employee, and a warning she collected in February 1974 for
taking a drink of water. She was another early joiner (G.C.
Exh. 18) and dues-paying member (G.C. Exh. 15) of
Distributive Workers District 65. In the spring of 1974,
while working, she was directed by Respondent Supervisor
Presutti to report to the plant cafeteria, where Teamsters
Local 806 Spokesman Emerson Peneherera and an uniden-
tified female advised her not to permit herself to "be led by
anybody," but to sign a Local 806 card. She refused to sign.
Thereafter, at the close of work on August 23 (1974),
discovering her timecard missing from the rack , she was
without previous notice or intimation paid off through that
day and handed a paper, which her husband at home later
translated for her as a termination for poor work perfor-
mance . Her credited testimony that at no time - with the
foregoing possible "exceptions" - had her work perfor-
mance been criticized, is uncontroverted. Within the
context of the record as a whole, including her credited
testimony and Respondent's unexplained failure to pro-
duce any line supervisor familiar with her work to testify
and establish that her "work performance" was in fact
"poor," I find that the reason assigned by Respondent for
its summary discharge of this 6-year employee with a good
work record was pretextuous , the real reason being her
continued adherence to Distributive Workers District 65
and her refusal to affiliate with Teamsters Local 806.
(46) Damiana Ruiz
Damiana Ruiz was employed by Respondent for about 7-
1/2 years, commencing January 23, 1967, as a machine
operator, prior to her summary discharge without notice at
the end of her workday on June 28 , 1974. An early
petitioner for District 65 (G.C. Exh. 14), she was also an
early card signer (G.C. Exh. 18) and dues-paying member
218 It is reminiscent of the transfer - following participation in protected
activity - of a small-statured worker , who had been performing satisfactori-
ly for some time on a machine , to another machine with a handle too high for
him to reach or manipulate , and which when operated tended to whisk him
(G.C. Exh. 15) of that Union, and she attended its meetings
and made her sympathies for District 65 well known among
plant employees. When, in March or April 1974, she was
directed during worktime to go to the plant cafeteria, and
Teamsters Local 806 spokesman Ocana - with Juan
Vazquez and Eddie Sanabria - there informed her (on
company worktime) that she "had to sign a card for the
Local 806, that if not, I would be dismissed," she refused.
For no known or explained reason, on June 27 (1974) she
was replaced on her machine - which she had been
operating satisfactorily for many years - by another
employee considerably junior to her at the plant, and
assigned to another machine elsewhere, with which she was
totally unfamiliar. On the new machine she was required to
place three artificial, "sticky" fish replicas simultaneously
or with extreme speed on a depressed "plate" over which a
plastic "blister" was emplaced upon a card, on a fast
moving conveyor belt mechanism involving a 10-person
operation fabricating animal food or toys. With no previous
work criticism during her 7-1/2 years of employment,
within 1 day after she was transferred to this new operation
- that is, on June 28 - she was haled to the office by
Supervisor Presutti to explain why she could not manipu-
late the three "fish" with a single movement or at the same
time. Presutti left her there with General Manager Fein-
berg, Personnel Manager Morales, and Teamsters Local
806 Chief Shop Steward Juan Vazquez. She suggested to
Vazquez in Spanish that perhaps if some sort of spray were
used on the "fish" it might be possible to grasp and release
three of them simultaneously or with sufficient speed into
the "plate" for "blistering" onto the card. This suggestion
was adopted, enabling her from then on - approximately 3
p.m. - to handle three "fish" simultaneously. Nevertheless,
at 4:30 she was told to report to Personnel Manager
Morales' office, where, without conversation, she was
handed a check and a termination slip stating she had been
terminated for "poor work performance" (G.C. Exh. 43).
She had herself never been required to place, nor had she
placed, -nor had she ever observed any other person place,
as many as three "fish" of this type on a card or "plate"
simultaneously or within the time available on an assembly
line operating at this speed. Indeed, although one of her
supervisors (whom she named - and who was not
produced by Respondent to dispute her) himself indicated
it could not be done, she nevertheless succeeded within a
short time in accomplishing this feat after the "fish" were
sprayed as she had suggested, to eliminate their "sticki-
ness." At the same time, other personnel on the assembly
line, to which she was newly assigned to accomplish the
aforedescribed task, were being required to place only two
"fish" on the "plate," Ms. Ruiz was required to place three
on the "plate." The entire situation, including her unex-
plained transfer for no apparent reason , and the newly
assigned feat which she was expected to perform, and her
short-fire demise and dismissal after 7-1/2 years of satisfac-
tory work, smacks strongly of a device to ease her out of her
job. Giving an old hand an "impossible" job does not speak
well for the bona fides of a resulting discharge.218 Under all
of the described circumstances, crediting the testimony of
off the ground, perhaps to the amusement of onlookers but at the cost of his
job which his employer then took the position he could not efficiently
perform - resulting in a discharge held illegal in Kut-Kwrck Corporation, 176
NLRB 635,648-651 (1969) (re Goodyear)
HARTZ MOUNTAIN CORP. 555
Ms. Ruiz and, upon the record as a whole, I fmd that the
reason assigned for Respondent 's discharge of this efficient
employee of 7-1/2 years' standing was a concocted pretext,
and that the real reason was her loyal adherence to
Distributive Workers District 65 and her refusal to affiliate
with Teamsters Local 806.
(47) Maria del Carmen Salcedo
Maria del Carmen Salcedo entered Respondent's employ
in July 1969 and continued in production work at its Jersey
City plant under Supervisor Presutti until she was precipi-
tately discharged over 5 years later, at the end of her
workday on August 9, 1974, without advance notification
or indication of any kind. At no time during her 5 years of
employment had there been any expression of dissatisfac-
tion of any nature with her work performance or conduct.
She was an early petitioner (G.C. Exh. 14) and card signer
(G.C. Exh. 18) for Distributive Workers District 65,
attended its meetings, and for a time wore its button in the
plant. Around March 1974 she was told, during working
time, to go to the plant cafeteria, where she (and others with
her) were informed by Teamsters Local 806 spokesman
Joaquin Ocana that there was a contract between Respon-
dent and Teamsters Local 806 and that unless they signed a
union card for Local 806 they would or could be fired. She
refused to sign. When she went to punch her timecard
before leaving the plant at the end of the workday on
August 9, 1974, and discovered the timecard missing from
the rack, she sought out Supervisor Presutti, who told her
she was being given "layoff" - an expression apparently
understood by Respondent's Spanish-speaking employees
- and to return on Monday for her pay and papers.
Returning on the following Monday, she was given a check
and a paper stating that she had been terminated for "poor
work performance." Crediting the testimony of this em-
ployee of 5 years' standing with no adverse reflection on her
work performance, and considering Respondent's unex-
plained failure to produce any line supervisor to controvert
her testimony, and in the frame of reference of the record as
a whole, I find that the reason or reasons assigned by
Respondent for her termination was or were pretextuous,
the true reason being her continued adherence to Distribu-
tive Workers District 65 and her refusal to join Teamsters
Local 806.
(48) Raul Salcedo
Raul Salcedo entered Respondent's employ on July 24,
1969, remaining until his termination on August 16, 1974,
for "poor work performance" (G.C. Exh. 109). He did not
testify in this proceeding. Although the record indicates
that he was among the petitioners for (G.C. Exh. 14), as well
as early card signers (G.C. Exh. 18) and dues-paying
members (G.C. Exh. 15) of, District 65, his personnel folder
(G.C. Exh. 109) reflects an attendance and punctuality
record somewhat comparable to that of other employees
supplied in evidence here as a yardstick who were likewise
terminated by Respondent (G.C. Exh. 116: Susana Val-
verde, Ellis Rasberry, James J. Murray, Anibal Maranon,
George Williams, John Wright, Lidia E. Gonzalez, Linda
A. Monday) but for reasons not claimed to have been
violative of the Act. While it is true that still other
employees with perhaps arguably comparable or even
perhaps worse attendance and punctuality records were not
terminated, lacking testimonial explanations it is not
feasible - other than through impermissible surmise and
conjecture - to determine that the true reason for
Salcedo's termination was not his work record as reflected
in his personnel folder. His mere membership in District 65
would not, of course, insulate him from discharge. Under
the circumstances, I fmd that it has not been established by
substantial credible evidence that Respondent 's termina-
tion of Raul Salcedo on August 16, 1974, was because of his
membership in or activity on behalf of Distributive Work-
ers District 65 or for any other reason violative of the Act.
(49) Maria L. Sanchez
Maria L. Sanchez was employed by Respondent from
January 9, 1970, until her discharge on April 26, 1974,
allegedly for "poor performance" (G.C. Exh. 110), with an
intervening termination and about a 3-1/2-month absence
for pregnancy. She was not a witness here and there is no
indication that she was a member of or active in any of the
unions here involved . Her personnel folder (G.C. Exh. 110)
discloses, among other things, a seemingly extremely poor
attendance and punctuality record in 1973 and 1974
entirely comparable to if not worse than that of other
employees terminated by Respondent for that reason as
indicated in their personnel folders, as referred to in
connection with terminated employee Raul Salcedo, supra.
Upon the record presented, it is found that it has not been
established that Respondent's termination of Maria L.
Sanchez was because of protected concerted activity on her
part or for any other reason violative of the Act.
(50) Angel Santiago
Angel Santiago worked at Respondent 's Jersey City plant
from September 25, 1967, for almost 7 years, with no
adverse comment regarding his work performance or
conduct, until his summary discharge on August 16, 1974
(G.C. Exh. 157), without previous notice, by telegram
during his vacation at home. He, too , was an early joiner
(G.C. Exh. 18) and dues-paying member (G.C. Exh. 15) of
Distributive Workers District 65, attended almost all of its
numerous meetings, wore its button in the plant, and
openly discussed its affairs with other plant employees.
After first turning down a request or requests by Joaquin
Ocana to sign up with Teamsters Local 806, toward the end
of July 1974 Ocana again approached Santiago on that
subject, this time with a filled-out card, and, after Ocana
warned him that if he did not sign it he could be dismissed
from his job, Santiago signed and returned it to Ocana.
Nonetheless, on August 16, 1974 , while at home on
vacation, he received a telegram from Respondent stating,
"Effective August 16, 1974 you are terminated as an
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee at The Harts Mountains [sic] Corporation"
(G.C. Exh. 61). Upon his return to the plant a week later, he
was given a termination notice (G.C. Exh. 62, also dated as
of August 16) stating the reason for his termination was
"poor work performance." At no time was any indication
given to him of what this "poor work performance" was.
While his personnel file (G.C. Exh. 157) indicates a perhaps
larger than "usual" amount of absence because of illness,
apparently these sickness absences were excused and his
attendance otherwise seems comparatively unexceptional.
Respondent produced no line supervisor familiar with his
work to testify to any respect in which it was "poor" as
conclusorily stated on his termination slip. Under all of the
circumstances and upon the record as a whole, I have
difficulty in believing that this employee of 7 years'
standing was really discharged for the reason alleged by
Respondent , who could easily have produced a line
supervisor to testify to the poor quality of his work if indeed
it was poor. It is accordingly found that the reason
advanced by Respondent for the discharge of Angel
Santiago was pretextuous , the real reason being his contin-
ued Distributive Workers District 65 membership and
activities and his earlier refusals to affiliate with Teamsters
Local 806.
(51) Maria Estelle Santiago
Maria (Marie) Estelle Santiago entered Respondent's
employ as a production worker at its Jersey City plant in
March 1970, continuing there for about 4-1/2 years without
any adverse comment - but, on the contrary, with praise
from Supervisor Presutti - until her precipitate discharge
at the end of her workday on August 9, 1974, without
previous intimation . She was another early petitioner and
card signer for Distributive Workers District 65 (G.C. Exhs.
14 and 18) and attended all of its many meetings. In or
about January 1974 - according to her uncontroverted
testimony - her supervisor, Jesus Santiago, informed her
while at work that on orders of Respondent Vice President
Kaye, employees "had to sign" Teamsters Local 806 cards
by February or they would be dismissed . At or around the
same time, also while she was at work, Local 806 spokes-
man Eddie Sanabria, in the company of General Manager
Feinberg, approached her with Local 806 cards in hand and
asked her to sign one but she declined to do so. He left the
card with her. When General Manager Feinberg subse-
quently asked her whether she had signed it, she replied in
the negative. In February or March (1974), also while
working, she was ordered by Supervisor Presutti to report
to the plant cafeteria, where among others she observed
General Manager Feinberg at a table with Juan Vazquez
(chief shop steward of Teamsters Local 806), his aide Ocana
told her that she had been directed to go to the cafeteria in
order to sign a Local 806 card and that if she failed to do so
she would lose her job. She replied that she would "rather
lose my job rather than sign the card" and returned to
work. However, when she was informed by Local 806
spokesman Sanabria at the end of July or beginning of
August (1974) that her name was on the "dismissal list" but
that she could retain her job by signing a Local 806 card,
she signed the card. Nevertheless, a week or so later, at the
end of the workday on August 9, when she discovered her
timecard missing from the rack, she went to Supervisor
Presutti who tersely told her, "layoff" (not discharge,
termination, or firing) and to return on Monday (August
12) for her paycheck. When she did so, she received with
that check a termination notice (G.C. Exh. 82) assigning as
the reason for that termination, "poor work performance."
She had and has no idea whatsoever of what performance
this could refer to. Again, Respondent failed to produce
any line supervisor to establish or show any "poor work
performance" on the part of this employee, whose credited
uncontradicted testimony establishes that she had worked
for Respondent for 4-1/2 years without criticism of any
nature . Under the circumstances and the record as a whole,
I find that the reason assigned by Respondent for her
termination was pretextuous and that the real reason was
her continued faithful adherence to Distributive Workers
District 65 and her participation in protected concerted
activities, as well as her initial refusals to affiliate with
Teamsters Local 806 until her name was placed on the
"dismissal list."
(52) Maria Teresa Santiago
Maria Teresa Santiago entered Respondent's employ at
its Jersey City plant in January 1972, continuing there until
summarily terminated without prior notification at the end
of her workday on July 19, 1974. During her 2-1/2-year
tenure , she had received no adverse comments concerning
her work or behavior except when she was observed
momentarily not working on one occasion around Febru-
ary 1972, the male member of the eight -person machine
operation of which she was a part having for some reason
unknown and unrelated to her stopped the machine; and
for taking more than the 5 minutes allowed for a visit to the
ladies' room - when male Supervisor Presutti entered the
ladies' room and she indicated it was no place for him, he
issued a warning slip to her. With regard to her work,
however, Supervisor Presutti had praised it, telling her she
handled the more difficult machines better than other
employees. She signed a union authorization card for
Distributive Workers District 65 on December 8, 1973,
attended its meetings , and regularly spoke favorably
regarding it to employees in and around the plant during
work breaks. After turning down solicitations from various
Teamsters Local 806 representatives - Gonzalez, Vazquez,
Ocana, and Sanabria - during working time, to sign up
with Local 806, in March 1974 she was instructed by
Supervisor Presutti to report to the plant cafeteria. There, in
the company of Vazquez and Sanabria, she was told by
Ocana that she was liked in the plant, and that also because
of her brothers who worked there, one of whom had signed
a card for Local 806, "people would feel so sad" if she did
not do likewise since in that event she would be "losing
[your] job" or "dismissed" by March 27 . She nevertheless
refused to sign. Ocana then told her, "You will regret [it]
because when it comes March 27th you will be dismissed."
In or about April (1974), while she was in General Manager
Feinberg's office about a paycheck, Feinberg asked her,
"Maria, would you not sign for the union?" She replied,
"No." At the end of her workday on Friday, July 19 (1974),
Supervisor Presutti told her she was wanted in the person-
nel office ; there , Plant Manager Petrera told her (and some
HARTZ MOUNTAIN CORP.
other employees) that they were being "laid off or else just
dismissed" and to return on Monday for their pay . Petrera
gave no indication of any reason for this action . When she
returned on Monday, she was given her pay through the
preceding Friday with a termination slip (G.C. Exh. 67)
stating she had been terminated for "poor work perfor-
mance." At no time during her 2-1 /2-year tenure had she
been told her work was poor or anything like that; on the
contrary, her work had - as her uncontradicted testimony
establishes - been praised by Supervisor Presutti himself.
And according to her testimony , at the time she was
terminated there were perhaps as many as 50-70 other
employees, with 20-25 junior to her, doing the same type of
production work as she (i.e., machine operator assistant,
with seemingly a wide variety of experience), with employ-
ees junior to her not terminated . Again, Respondent
produced no line supervisor familiar with the work of this
employee to controvert her testimony, nor to show in any
way that her work was unsatisfactory or poor as alleged.
Under these circumstances and upon the record as a whole,
I find that the reason assigned by Respondent for her
termination was pretextuous , the real reason being her
continued membership in and protected concerted activi-
ties on behalf of Distributive Workers District 65 and her
refusal to join Teamsters Local 806.
(53) Awilda Soto
Awilda Soto was employed by Respondent from May 11,
1972, until her termination on May 10, 1974, allegedly for
"poor work performance" (G.C. Exh. 111). Except for the
fact that she was an early petitioner for and card signing,
dues-paying member of District 65 (G.C. Exhs. 14, 18, and
15), the record is for practical purposes silent on the subject
of any union activity on her part 219 While her personnel
folder (G.C. Exh. 111) appears to be essentially unremark-
able, it does indicate some early departures from work and
absences without calling in. Awilda Soto did not testify. In
the absence of testimony on her part, I am unable to say
that her discharge was because of participation by her in
protected concerted activity; I cannot regard mere mem-
bership in District 65, without more, as sufficient. Upon the
record as a whole, I find that it has not been established by
substantial credible evidence that Respondent's termina-
tion of Awilda Soto on May 10, 1974, was because of her
membership in or protected concerted activity on behalf of
Distributive Workers District 65 or any other reason
violative of the Act.
(54) Ada Iris Vargas
Ada Iris Vargas was employed at Respondent's Jersey
City factory in various production capacities from Septem-
ber 17, 1968, until her summary discharge on July 3, 1974,
almost 6 years later.220 Her testimony is uncontradicted
that during her long tenure of employment she has never
been criticized verbally or in writing in relation to her work
219 Except for the testimony of Marta Teresa Santiago that she received
her District 65 card from Awilda Soto during lunch in the plant cafeteria. But
even as to this the circumstances are undisclosed.
220 She was terminated for "absences" in December 1969 but reinstated a
month later.
557
quality or quantity .221 She, too, was an early petitioner for
(G.C. Exh. 14), and joiner (G.C. Exh. 18) and dues-paying
member (G.C. Exh. 15) of, Distributive Workers District
65. She, too, in March 1974 declined to sign a Teamsters
Local 806 card, in the face of a warning to her from
Sanabria while she was at work, that "[You] should sign the
card because if [you] did not [you] would be put out." At
the close of her workday on July 3 (1974), without previous
notice or intimation , her foreman instructed her to report to
the personnel office, where she and two fellow employees
(Maria Lopez, supra, and Ana Ventura, infra) were in-
formed by Personnel Manager Morales that they were
being given "layoff," and she was paid off and given a
termination notice (G.C. Exh. 45) stating the reason was
"poor work performance." At no time, however, was there
any indication, other than this statement on this slip, that
her work was poor or unsatisfactory or that she was being
terminated for any such reason. Again without explanation
Respondent failed to produce any line supervisor familiar
with her work to show that it was unsatisfactory or poor as
stated on the termination slip, or that her termination was
truly for that reason. Under these circumstances and
considering the record as a whole, it is found that
Respondent's alleged reason for its July 3, 1974, termina-
tion of Ada Iris Vargas was pretextuous, at least one real
and controlling reason being its desire to rid itself of a loyal
continued member of and participant in protected concert-
ed activities on behalf of Distributive Workers District 65
who refused to become affiliated with Teamsters Local 806.
(55) Ana Ventura
Ana Ventura first entered Respondent's employ as a
production employee at its Jersey City factory in June 1968,
remaining to March 1970, when she returned to her ailing
husband in Santo Domingo until she reentered Respon-
dent's employ on September 14, 1972, continuing until her
summary termination on July 3, 1974. According to her
credited uncontradicted testimony she received no criticism
of any nature, written or oral, concerning her work during
either period of her employment. She was an early
petitioner for (G.C. Exh. 14), as well as card signer (G.C.
Exh. 18) and dues-paying member (G.C. Exh. 15), of
Distributive Workers District 65, she attended all of its
numerous meetings, and she openly expressed her support
for that Union among employees at the plant. She consis-
tently refused to become affiliated with Teamsters Local
806. In March or April 1974, during working time she was
told by Local 806 Steward Marta Toro to accompany her to
the plant cafeteria. When Ana Ventura told Marta Toro
that she needed permission from her supervisor, Marta
Toro told her it was unnecessary since the "bosses" had
authorized it, and in fact (as Ana Ventura observed)
numerous other female employees had already accompa-
nied Marta Toro there. In the cafeteria, Local 806 Spokes-
man Ocana told Ana Ventura that he had sent for her to
sign a card for Local 806, that this would be "the last
221 While her personnel record (G.C. Exh. 160) indicates a number of
absences for illness, apparently these were all with leave or satisfactorily
accounted for by medical certificates and excused, and comparatively they
are seemingly unremarkable
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opportunity" to do so, and that those who did not sign
"would be sometimes soon dismissed." She nevertheless
persisted in her refusal to sign a card for Local 806. About a
month later, she was again warned during working time
that if she did not sign a Local 806 card she would be
"dismissed soon." About 5 minutes before her usual 4:30
p.m. quitting time on July 3,1974, Ana Ventura was called
to Personnel Manager Morales ' office, where she was paid
off and given a paper (G.C. Exh. 47) notifying her she had
been terminated for "poor work performance." She has
never been told and has no idea of what this means or refers
to, since her work performance has at no time been
criticized or questioned in any way. There is no indication
in her personnel file (G.C. Exh. 158) of any work deficiency
or shortcoming, nor did any line supervisor testify concern-
ing such . Crediting her highly persuasive testimony and
upon the record as a whole, I find that the reason assigned
by Respondent for her termination was a sham and pretext,
and that the true reason was her continued loyal adherence
to Distributive Workers District 65 and her refusal to
affiliate with Teamsters Local 806.
(56) Rosa Villegas
Entering Respondent's employ as a production worker at
its Jersey City plant on August 6, 1970, Rosa Villegas (Rosa
Elena Villegas, Rosa Villega Muscara) continued in that
capacity until her summary discharge about 4 years later,
on July 19, 1974, while she was on vacation. During her 4-
year tenure, according to her candid testimony on direct
examination , she received a few minor oral criticisms such
as for "eating" while working or for neglecting to stamp her
control number on packaged merchandise, the last of these
about a year before her discharge ; but these are not even
reflected in her personnel folder (G.C. Exh . 92). She was
another early petitioner for (G.C. Exh. 14) as well as card
signer (G.C. Exh. 18) and dues-paying member (G.C. Exh.
15) of, Distributive Workers District 65, and attended all of
its many meetings . She also wore its large distinguishing
button while at work until word circulated that its wearers
would be dismissed. In the early part of 1974, while at work,
she with other employees were sent by Supervisor Presut-
ti 222 to the plant cafeteria , where she was presented with a
Teamsters Local 806 card to sign. She declined to do so
"until the momemt I am certain of where the negotiations
stand ... then I will decide." When she was told it was a
"good union" and she should sign the card, she persisted in
her refusal to do so. Thereupon she was asked to furnish her
timecard number, which she did. She has never signed a
card for Local 806. Following this, during her last 2 weeks
at the factory around the end of June or beginning of July
(1974), she was assigned to a new machine with which she
was unfamiliar. According to her credited uncontradicted
testimony , no dissatisfaction was expressed regarding her
work in connection with that machine . When she returned
from her vacation on July 22, 1974, she was instructed by
Supervisor Presutti to see Personnel Manager Morales, who
handed her a paper (G.C. Exh. 91) stating she had been
terminated as of July 19, 1974 while on vacation), for "poor
work performance." Her personnel folder (G.C. Exh. 92)
discloses no work performance criticisms and her atten,d^
a,nce record- seems comparatively unremarkable . No line
supervisor was produced by Respondent to testify to any
"poor work performance" on her part as conclusorily
alleged on the termination slip, or to refute her credited
cross-examined testimony to the contrary. Under these
circumstances and upon the record as a whole, it is found
that the reason assigned by Respondent for her termination
was pretextuous, and that the real reason was her continued
loyal adherence to and support of Distributive Workers
District 65 and her refusal to affiliate with Teamsters Local
806.
(57) Ana Zapata (DeKalb Street)
Ana (Anna) Zapata of 273 DeKalb Street, Jersey City,
entered Respondent's employ at its Jersey City factory on
September 8, 1968, continuing there as a production worker
for about 6 years until her summary discharge without prior
notification at the close of her workday on August 9, 1974.
Her testimony, highly persuasively delivered, that she
received no criticism of any kind concerning her work or
conduct during her 6 years on the job, is wholly uncontra-
dicted. She waslone of thelfirst card,signers for, Distributive
Workers District 65, her husband Modesto Zapata being on
its organizing committee. Like other District 65 adherents
whose cases have already been discussed, she, too, was later
taken to the plant cafeteria by Teamsters Local 806 Shop
Steward Marta Toro during working time to sign a Local
806 card at the behest of its spokesman Joaquin Ocana,
who indicated to her it was necessary to "assure your
[continued] work"; and she, too, refused to sign it. At
quitting time on August 9, 1974, she observed her timecard
was missing from the rack. When she sought out and gave
her name to Supervisor Presutti, he consulted a list he held
and tersely remarked, "layoff' (not discharged, fired, or
terminated) and told her to return the next day, at which
time she received a paycheck through the preceding day
(August 9) with a paper she was unable to read - she
cannot read English or Spanish - and later left at the
unemployment insurance office. She has never been told
why she was being laid off, and has never been recalled. No
line supervisor was called to testify to show that her work
was in any way unsatisfactory or to explain why she has not
been recalled although new employees in her work capacity
have been hired. Under the circumstances and crediting her
testimony, upon the record as a whole it is found that her
termination was because of her continued loyal affiliation
with Distributive Workers District 65 and her refusal to join
Teamsters Local 806.
(58) Ana Zapata (Bright Street)
Ana (Anna) Zapata of 159 Bright Street , Jersey City,
entered Respondent's employ as a production work at its
Jersey City factory on August 19, 1969 . She is the wife of
Milton Zapata , brother of Modesto Zapata . (Modesto
Zapata, a member of the Distributive Workers District 65
organizing committee , is the husband of Ana Zapata of 273
222 It is again reiterated that this , as well as all other, testimony
concerning Supervisor Presutti stands uncontradicted in the record since
without explanation he was not produced as a witness.
HARTZ MOUNTAIN CORP.
DeKalb Street, supra.) Her credited uncontradicted testi-
mony establishes that, during her 5-year term of employ-
ment there, until she was summarily terminated without
previous notice, at quitting time on August 16, 1974, she
received no adverse criticism of any nature concerning her
work or conduct. As a member of Distributive Workers
District 65 (which she joined in June or July 1973), while at
work in February or March 1974 she was sent to the plant
cafeteria by Teamsters Local 806 Shop Steward Marta
Toro, acting on instructions of Supervisor Presutti. In the
cafeteria, Local 806 spokesman Ocana told her that since
"[Teamsters Local] 806 was already in and that the contract
has been signed," she had better sign a card for Local 806 if
she wanted to hold on to her job. She declined, stating she
was "not sure whether the 806 was really in the company."
Subsequently, however, in July (1974), when Local 806
Chief Shop Steward Juan Vazquez and his aide Eddie
Sanabria commented that, if she and other employees
signed Local 806 cards they could keep their jobs, she
signed up. At the end of her workday on August 16 (1974),
without previous notification or intimation of any kind,
after 5 years of wholly satisfactory work performance, not
finding her timecard in the rack, she sought out Supervisor
Presutti, who, after asking her name, remarked "layoff" and
handed her a paper (G.C. Exh. 66), which her husband later
translated to her, stating that she had been terminated for
"poor work performance." At no time had Presutti or any
other supervisor criticized her work in any way. Without
explanation - as in the cases of all of the foregoing
employees - no line supervisor was produced to testify
concerning this employee's work performance or to estab-
lish or show in any way that it was in fact poor as alleged in
the termination notice. Under the circumstances, crediting
her testimony and upon the record as a whole, I ford that
the reason advanced by Respondent for the discharge of
Ana Zapata was pretextuous, its real reason being to weed
out still another Distributive Workers District 65 sympa-
thizer and adherent.
c. Recapitulation of findings concerning 58
terminated employees
Of the 58 above-named employees , 46 were found to have
been pretextuously and unlawfully terminated in violation
of the Act ; 12 employees were not established to have been
terminated in violation of the Act.
Figure 6 [omitted from publication] shows the compara-
tive composition of the foregoing 58 terminated employees
in terms of Distributive Workers District 65 vis-a-vis
Teamsters Local 806 affiliation . While it is true that Fig. 6
deals essentially with District 65 members - those being
the only employees whose terminations are in issue here -
and may therefore be challenged as a unilateral or
noninterfaced comparison , nevertheless Respondent did
not come forward at the hearing to show that the number or
proportion of District 65 members terminated did not differ
essentially from the number or proportion of terminated
223 Excluding M. Ocasio, who was an open advocate of District 65 but
who had not (yet) signed a card for it, and who was also terminated. Of the 58
employees here terminated, only M. Ocasio and M. L. Sanchez were not
established to be members of District 65. The fact that some District 65
559
employees (if any) belonging exclusively to Teamsters
Local 806.
Distributive Workers District 65 was the union affiliation
of 56223 employees out of the 58 terminated, or 96.6
percent; Teamsters Local 806 was the union affiliation,
prior to 12-1-73, 4 out of 58, or 6.9 percent, after 12-1-73, 12
out of 58, or 20.6 percent. Those having an affiliation also
with District 65, 0 percent.
Figure 7 [omitted from publication] shows the median
seniority of the 46 unlawfully terminated production
employees vis-a-vis the median seniority of all production
employees in Respondent's Jersey City factory.
The median seniority date of all Jersey City plant workers
(excluding those still at work as of September 1, 1974) is
computed to be November 6, 1973; the median seniority
date as of April 1, 1974, is January 18, 1973; of District 65
members terminated, February 25, 1970.
The approximate length of employment of all Jersey City
plant employees terminated (as of September 1, 1974) is 5-
1/2 months; as of April 1, 1974, 1 year 2-1/2 months; of
District 65 members terminated, 4 years 6 months.
Figure 8 [omitted from publication ] shows the number of
new hires from March through August 1974 in Respon-
dent's Jersey City plant. (G.C. Exhs. 112A and B.) These
were 51 in March, 25 in April, 2 in May, 25 in June, 48 in
July, and 35 in August, totaling 186 new hires. While no
figures have been supplied by the parties for the period
since August 1974, Respondent Vice President Kaye
conceded during cross-examination that there have contin-
ued to be new hires among unit production employees at
the Jersey City plant since August 1974. The personnel files
of some or many of the production employees here supplied
as examples of such (G.C. Exhs. 164 A - I) - all hired after
August 27, 1974 - indicate seemingly little if any prior
relevant work experience, and apparently even no previous
experience (all Dept. 68: packaging and assembly, unskilled
or semiskilled). The same may be said for the sample 1974
new hires in Dept. 69 (shipping; G.C. Exhs. 165 A - I), as
well as for those in Dept. 79 (machine operators and set-up
persons; G.C. Exhs. 166A - F). Departments 68 and 69
each comprise a manufacturing, assembly, "blistering" ( i.e.,
emplacing a plastic bubble or "blister" over items such as
pet foods or toys, on a card, in order to display them with
visible effectiveness while thus contained), and perhaps
packaging operations, with women almost exclusively in
Dept. 68, described as a hand-assembly operation.
In recapitulation of and in addition to the reasons
already advanced for fording the indicated employee
terminations to have been in violation of the Act, the
following factors have played a role in that determination:
(1) the testimony of numerous highly credible employee
witnesses, presenting a consistent and essentially uncon-
tradicted pattern; and (2) my reservations, already explicat-
ed, as to the credibility, quality; and weight of the
testimony of Respondent's witness Kaye; (3) the remark-
ably high level (i.e., vice presidency of a very large,
sprawling business enterprise) at which the action terminat-
adherents were retained in Respondent 's employ is no defense to its dismissal
of others; nor is it a defense that some who had also joined Local 806 were
included among those terminated cf. N.LRB v. W. C. Nabors, d/b/a W. C.
Nabors Company, 196 F.2d 272,276 (C.A. 5, 1952), cert. denied 344 U.S. 865.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing very low-level employees was taken; (4) the fact that,
without explanation, no line supervisors were produced by
the Employer to testify to dispute or refute the testimony of
the terminated employees as to lack of criticism or fault
found with their work ; 224 (5) the combination of strong
employer animus against Distributive Workers District 65
and strong employer bias in favor of Teamsters Local 806;
(6) the fact that all of the employees here terminated were
loyal adherents of Distributive Workers District 65, with
none also a member of Teamsters Local 806 except for
those who signed cards for the latter Union under circum-
stances indicating a last-ditch attempt to save their jobs; (7)
the known District 65 affiliation of the terminated employ-
ees; 225 (8) the precipitate nature of the terminations and
the manner in which they were effectuated, for what was in
most cases long-term, satisfactory employees ; (9) the
conflicting and inconsistent reasons advanced by Respon-
dent for its termination of the very same employees; and
even its change in position late in the hearing itself, from
that taken in its amended answers ; 226 (10) the essential
absence of former expression of dissatisfaction with the
work performance of the terminated employees ; 227 (11)
Respondent's own records and certifications to the New
Jersey unemployment insurance authorities belie the rea-
sons now advanced by it for many of the terminations; (12)
the substantial number of replacements and new hires, with
224 It is clear that an employer cannot overcome or satisfy the require-
ments of Sec . 8(a)(3) or (1) of the Act by merely producing a piece of paper
with his comment "poor work performance" on it. Cf., e.g., N.L.R.B. v.
Harry F. Berggren & Sons, Inc., 406 F .2d 239, 245-246 (C.A. 8, 1969), cert.
denied 3% U.S. 823; Sealtest Foods Division of Kraftco Corporation, 194
NLRB 856, 865-866 (1972); Evans Packing Company, 190 NLRB 401, 402-
403 (1971), enfd . 463 F .2d 193 (C.A. 6, 1972); Venus Pen and Pencil
Corporation, 144 NLRB 115 (1%3); Allure Shoe Corporation, 138 NLRB 395
(1%2)
225 Respondent pleads ignorance as to the identity of the District 65
supporters . Even if one were to indulge in the supposition - contrary to
established facts herein - that Respondent was up to a point unaware of the
identity of all of the District 65 supporters , at least from the date early in this
hearing when it was furnished with copies of all of the signed membership
cards of its employees in that Union , pursuant to my April 11, 1974,
expediting order (ALi Exh. 1), it was made fully and specifically cognizant in
detail as to their identity . And other credited proof, already described, shows
that responsible members of Respondent's supervisory and managerial
hierarchy were well aware of the District 65 organizational activities and
employee participation therein in the plant . Thus, Respondent's assertion of
ignorance of the District 65 affiliation of the terminated employees does not
hold water.
226 Late in the course of the protracted hearing, Respondent without
opposition amended its answer , which had (repeatedly all the way through its
fourth amended answer of October 22, 1974) alleged that nine of the
terminated employees here in issue had been `laid off' (as stated by
Respondent in documents supplied by Respondent to these employees in
connection with their terminations), had not really been "laid off' but
"discharged ." The reason advanced for this I1 -hour change of position was
that Respondent's own records were allegedly in error and inconsistent with
Respondent 's real "intention."
Further in this connection , Respondent 's former payroll clerk, Joann
Geiuffreda , subpenaed as General Counsel 's rebuttal witness , credibly
testified that her reports to the New Jersey unemployment insurance
authorities were based on data received by her from the Jersey City factory
time reports or separation forms or both ; that, for example, in the case of
terminated employee Altamirano , whom she accurately - based on reports
to her - reported to have been terminated for "lack of work" (G.C. Exh.
100), the termination form (id) stating "poor work performance" was not in
the file when she reported "lack of work"; and that when , a week or two after
the terminations , she received a new "tennination form" with a different
termination reason assigned than was on the time report and she took this up
with Kaye , she was told by Kaye , "Don't worry about it." She was , however,
only one recall out of the 58 terminated employees here; 228
(13) the intraplant diversification and transferability of the
production employees;229 (14) the pattern of terminations
here demonstrated is consistent with an attempt by Re-
spondent to enforce the "union security" provision of its
unlawful "collective agreement" with Teamsters Local 806,
and which would fall together with the agreement of which
it is a part; (15) the terminated employees were invariably
directed on work time to report to the plant cafeteria, where
Teamsters Local 806 spokesmen told or warned them to
sign Local 806 cards or face dismissal . Although some
acquiesced, most did not. This pattern of activity was
carried on with supervisory approval if not direct participa-
tion, with use made of Respondent's paid time , facilities,
and personnel; (16) with only a single exception, there is no
indication that Teamsters Local 806 protested, "grieved,"
or in any manner sought to question the terminations here
or to invoke the amehatory applicable provisions of its
supposedly bona fide "collective agreement" with Respon-
dent with regard thereto, even though it supposedly
represented, and by law if a bona fide exclusive collective-
bargaining representative was required to represent, the
interest of all unit employees - whether supporters of
Local 806 or not;230 (17) the "reasons" advanced by
Respondent, and its contentions to justify its terminations
of the employees in issue, just "fail[s] to stand
insistent in her testimony that this had never occurred prior to the
terminations here in issue commencing April 1974. Ms. Geiuffreda was
herself subsequently discharged on the ground that true or not she had
disclosed "confidential" information regarding salary increases, and that she
would not be given an opportunity to disprove it but that she could report her
own termination as a "reorganization of the department " for unemployment
insurance purposes.
227 In this connection , it is noted that during cross -examination Respon-
dent Vice President Kaye conceded that he at no time mentioned to the
Board Agent investigating this case that one of the reasons for the
termination of these employees was poor work performance.
228 As has many times been observed , employers are not given to
replacing satisfactory experienced employees with the green and untried.
See, e .g. Davidson Rubber Co., 305 F.2d 166, 169 (C.A. 1, 1962); N.L.R.B. v.
Local 776, International Alliance of Theatrical and Stage Employees (Film
Editors): (Cascade Pictures Co. of California), 303 F.2d 513, 519 (C.A. 9,
1962, cert . denied 371 U.S. 826. And the argument that new employees are
cheaper and thus entail a monetary saving is less than convincing when
advanced by an employer under the circumstances here shown, strongly
motivated to rid itself of proponents and adherents of a union which the
employer has made it plain by its actions ispersona non grata to it.
226 Testimony of the employee witnesses, as well as their histories at the
plant, indicate a far greater degree of intraplant job diversification and
motility than Respondent suggests ; and that the "departmental" numbers
are perhaps largely for internal administrative/supervisory purposes. Insofar
as new or unfamiliar machinery or equipment is concerned, to the extent that
it is essential to demonstrate its use and allow employee efficiency thereon to
peak, the same is true for experienced as for new employees , with the
probability that the experienced employees will require less training and
reach peak efficiency more rapidly. To the extent that Respondent suggests
that introduction of newer machinery requires the discharge of employees
experienced on the older or discontinued machinery , or that this is a more
efficient manner of operating , that has not been demonstrated here -
indeed , for a variety of reasons including the chronic job-shifting and work
task transferability patterns shown among the workers here, the opposite
could well be true . Respondent Vice President Kaye testified that the
"department" numbers "are used for payroll purposes" only - "If you ask
somebody where they worked they would say production department, not
Department 68 for other number ]."
230 It is noted , for example, that although the contract entered into by
Respondent with Teamsters Local 806 - under the circumstances described
in II, A of this Decision - explicitly requires that "all ... lay-offs shall be
based on ... seniority" (G.C. Exh. 3A) and for recall similarly, there is no
indication - with the exception of only one employee (Pascual Malave -
HARTZ MOUNTAIN CORP. 561
under scrutiny." N.L.R.B. v. Dant, 207 F.2d 165, 167 (C.A.
9, 1953).
It is accordingly found that , within the context of the
record as a whole , Respondent's terminations of the
employment of the 46 employees hereinabove specified,
because of the employees ' participation in concerted
activities , lawful and protected under the Act, on behalf of
Distributive Workers District 65 , their failure and refusal to
refrain from and discontinue the same, and their failure and
refusal to affiliate with Teamsters Local 806 ; were in
interference with, and in restraint and coercion of, employ-
ees' rights under the Act.
4. Employee disciplinary warnings during hearing
It is undisputed that on August 4, 1974, during the
hearing, Respondent issued formal disciplinary warnings to
eight of its Jersey City plant unit production employees, 231
and docked each of them for 15 minutes' pay. The
disciplinary warnings, placed into the employees' personnel
folders, state:
WARNING
This constitutes your [third] warning. It is issued for the
following reason:
() Excessive Absence
( ) Excessive Lateness
(x) Out from Assigned Area
(x) Other
Details: For leaving machine and coming to John
Petrera's office without authorization.
You are receiving this warning for an infraction of one
of the rules. An employee with three warnings is subject
to suspension or termination. I advice [sic] you to
improve your misbehavior and comply with company
regulations.
[Refused to sign]
Warning Received
/s/ L. V. Presutti, Authorized signature
/s/E.M. (?), Rec'd Personnel Office
The circumstances are as follows: 232
Three times on an extremely hot July day, some women
production employees in Respondent's Jersey City factory,
all working in the same intolerably hot area, indicated to
Supervisor Hector Santiago that they needed a fan.
Santiago seemingly did not heed their request. On the
following morning (Friday, August 2, 1974), with the same
or even greater factory heat, they again asked Santiago for a
fan; this time he informed them there was none. Since the
G.C. Exh. 153 dated July 25, 1974 , during this hearing) that this provisiop
was ever invoked, much less sought to be enforced, by Teamsters; and no
indication that it was - again with the exception of only one employee
(Gladys Diaz - also during this hearing, I day before she testified as
General Counsel 's witness) recalled to work - ever observed by Respon-
dent.
23i Viz, Nilda Lopez, Carmen Navarro, Alejandrina Nieves, Concepcion
Pastrana , Eloisa Perez , Albertme Rodriguez , Mana Sanchez , and Mantza
Tiburcio.
232 Based upon uncontradicted , credited testimony of General Counsel
heat was unbearably intense, the group determined to go
together to see Plant Manager Petrera to request a fan.
Petrera indicated to them that he would take care of the
matter and told them to return to work; and within 10
minutes three fans were supplied. The entire incident took
no more than 15 minutes . A few days later, all eight women
received a warning slip (as set forth above) for coming to
see Petrera without permission, and each was docked 15
minutes' wages.233 According to the uncontradicted testi-
mony of Ms. Pastrana, she had previously spoken to
Petrera about a work-related problem without being
"warned"; and the employees went to see Petrera as a small
group because they had gotten nowhere with their immedi-
ate supervisor (Santiago) and thought they might be taken
seriously if they went as a group to see Petrera, another
reason for their doing so being to avoid hazard of job
retaliation if they did not go as a group. And, according to
the uncontradicted testimony of Ms. Nieves, at no time
while in Petrera's office was any indication given to them
that they might receive a warning slip or have their wages
docked for what they had done.
While the foregoing account of the episode under
consideration is uncontradicted, Respondent contends that
the warnings and fines in question were proper since it was
not essential that all eight affected employees visit Petrera
as a group because they could have sent one or perhaps two
emissaries . But it does not follow from the mere possibility
that a visit by one or two might have sufficed, that a visit by
the group was unlawful. Such a visit and request, under the
circumstances described, is a classical example of the kind
of concerted activity falling squarely within the Act's
protection. Superheated factory workers may indeed, in
exercise of their rights under the Act, complain to higher
management about intolerable working conditions, without
risk of retaliation, penalty, or hazard to their job security.
N.LR.B. v. Washington Aluminum Company, Inc., 370 U.S.
9, 16-17 (1961) (plant too cold); N.LR.B. v. Southern Silk
Mills, Inc., 209 F.2d 155 (C.A. 6, 1953) (plant too warm).
Nor - as Respondent apparently further contends - is it
essential, under the circumstances here shown, for employ-
ees so acting in concert, to obtain the permission of their
own lower ranking supervisor who has ignored or failed
them in their request for relief, or to exhaust the technical
chain of command, as a condition precedent to trying at a
higher level (Time-o-Matic, Inc. v. N.L.R.B., 264 F.2d 96,
101-102 (C.A. 7, 1959); Guerdon Industries, 199 NLRB 937,
940 (1972), and cases cited); nor, as Respondent also
seemingly contends, for them to go through the "steward"
witnesses Concepcion Pastrana (chairman of the Distributive Workers
District 65 organizing committee , and according to her testimony the only
member of that committee whose employment had not been terminated by
Respondent) and Alejandrina Nieves (also a District 65 activist, whose
employment was unlawfully terminated shortly after the issuance of the
above warning notice, on August 22, 1974, under circumstances discussed in
11,11,3 , supra).
233 In the case of at least Concepcion Pastrana , the warning slip states it is
a "third warning" and that she is therefore "subject to suspension or
ternination" (G.C. Exh. 89).
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or "Chief Steward" of the very union (Teamsters Local 806)
whose lawful status they question and contest 234
Under these circumstances, it is clear that the issuance of
disciplinary warnings to the eight employees in question
was because they exercised their right to act collectively in
relation to their working conditions, and was therefore in
violation of the Act. I so fmd.235
Upon the foregoing findings and the entire record, I state
the following:
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. By recognizing, entering into, maintaining, and
enforcing collective agreements (including union-security
mandatory membership requirements) with a labor organi-
zation which Respondent unlawfully aided, assisted, and
supported, namely Teamsters Local 806, as the exclusive
representative of Respondent's employees in a unit or units
appropriate for collective bargaining, while said Teamsters
Local 806 did not represent an uncoerced majority of said
employees, and while substantial real questions concerning
the representation of said employees existed, under the
circumstances described and found in II,A, supra, the
Respondent, The Hartz Mountain Corporation, has violat-
ed and is continuing to violate Section 8(a)(2), (3), and (1)
of the National Labor Relations Act, as amended.
3. By terminating the employment of 46 employees (set
forth in the Order which follows herein), under the
circumstances described and found in II ,B,3, supra, and
failing to reinstate, recall,236 or rehire them, Respondent
has discriminated in regard to the hire, tenure, and terms or
conditions of employment of its employees, and continues
so to do, thereby discouraging membership in a labor
organization (Distributive Workers District 65) and encour-
aging membership in another labor organization (Team-
sters Local 806), in violation of Section 8(aX3) of said Act;
and has interfered with, restrained, and coerced employees,
and continues so to do, in the exercise of their rights under
Section 7, in violation of Section 8(ax 1) of the Act.
4. By issuing disciplinary warning notices to eight
employees (identified in fn. 231, supra, and further set forth
in the Order which follows herein), under the circumstances
described and found in II ,B,4, supra, Respondent has
interfered with, restrained, and coerced employees, and
continues so to do, in the exercise of their rights under
Section 7, in violation of Section 8(axl) of the Act.237
5. The aforesaid unfair labor practices have affected,
are affecting, and unless permanently restrained and
enjoined will continue to affect commerce within the
meaning of Section 2(6) and (7) of the Act.
6. It has not been established by substantial credible
evidence upon the record as a whole that Respondent's
termination of the employment of Jose Peguero on or about
234 Indeed , Sec. 9(a) of the Act expressly preserves the right of employees,
individually or as a group , "at any time to present grievances to their
employer and to have such grievances adjusted, without the intervention of
the bargaining representative ," even under a union which they support.
235 While immaterial in this connection (Sec. 8(a)(1)), it is also noted that,
of the eight employees so disciplined , no less than five were members of
Distributive Workers 65 , and that although one (A. Rodriguez) later signed a
December 10, 1973, under the circumstances described and
found in 11,B, 1, supra, was in violation of the Act.
7. It has not been established by substantial credible
evidence upon the record as a whole that Respondent's
termination of the employment of Rafael Bueno on or
about December 27, 1973, under the circumstances de-
scribed and found in II,B,2, supra, was in violation of the
Act.
8. It has not been established by substantial credible
evidence upon the record as a whole, under the circum-
stances described and found in II,B,3, supra, that Respon-
dent's termination of the employments of the following
persons was in violation of the Act: Francisco Altamirano,
Miriam Arango, Fulvia Benjumeda, Maria Cruz, Natalia
Esquilin, Maria Lopez, Wilfredo Lorenzana, Jose Maiso-
net, Elisa Martinez, Raul Salcedo, Maria L. Sanchez, and
Awilda Soto.
REMEDY
Respondent, having been found to have recognized and
entered into collective agreements which it is continuing to
maintain with Teamsters Local 806 and enforce against its
employees under the circumstances found above, should be
required to cease, desist, and refrain from continued
maintenance or enforcement thereof; under the circum-
stances shown, to withdraw recognition from Teamsters
Local 806 unless that labor organization is duly certified by
the Board in a secret-ballot election of Respondent's
employees held for that purpose in a collective-bargaining
unit or units appropriate for that purpose; and to make its
employees whole, with interest, for any sums withheld from
their pay as and for initiation fees, dues, pension fund
payments, or other fees or moneys paid over by Respon-
dent to Teamsters Local 806 by reason of Respondent's
maintenance and enforcement of the collective agreements
herein found unlawful. The abrogation of said collective
agreements shall be without prejudice to employees' wages
or other economic conditions of employment now in
existence ; and with regard to any hospitalization, medical,
sickness, or similar casualty or other coverages or indemni-
ties, reasonable provision shall be made, as set forth in the
Order which follows, to provide employees with substitute
coverages. Insofar as the unlawfully terminated employees
are concerned, Respondent should be required to offer
them reinstatement, with backpay and interest calculated in
the manner explicated in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962); and as to the eight employees to whom
Respondent unlawfully issued'disciplinary warnings and
whose pay it docked, the warning notices shall be removed
from their personnel folders and all company records and
entries thereof expunged. All company records and entries
shall also be corrected so as to show that none of the
unlawfully terminated employees were terminated for
card for Teamsters Local 806 as well, none of the eight was exclusively a
member of Local 806.
236 I.e., with the sole exception of Gladys Diaz from the date of her recall.
237 It is unnecessary to reach the question of whether some or all of these
disciplinary warnings were also in violation of Sec. 8(aX3), since the remedy
would be the same.
HARTZ MOUNTAIN CORP.
unsatisfactory work or for any reason reflecting on their
work performance or conduct. Respondent shall be re-
quired upon request to make available to the Board or its
agents , for examination and copying, all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records necessary or
useful to analysis of backpay and other amounts due under
and the extent of Respondent's compliance with the terms
of this Order. In view of all of the circumstances of this
case, including the unusually protracted, complex, and
difficult nature of these proceedings - all growing out of
Respondent's precipitate, unlawful recognition of Team-
sters Local 806, in contrast to its refusal to even meet with
Distributive Workers District 65 to enable that Union to
demonstrate its alleged representation credentials, in my
opinion fairness requires the reimbursement of Distributive
Workers District 65 for its organizing expenses and
reasonable counsel fees, and I shall so recommend. Finally,
a notice to employees, in both English and Spanish, shall be
publicly posted and maintained in Respondent's Jersey
City factory in the usual manner required in cases of this
type.
Upon the foregoing findings of fact, conclusions of law,
and the entire record of this consolidated proceeding,238
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER239
The Respondent, The Hartz Mountain Corporation,
Jersey City, New Jersey, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Giving effect to a recognition agreement dated
November 30, 1973, and to certain collective agreements
entered into between The Hartz Mountain Corporation
and International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 806, or
General Teamster Industrial Employees Local Union
#806, affiliated, with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, dated December 1, 1973, or to any of its terms or
provisions, and refrain from any renewal or extension
thereof; without prejudice, however, to any wage scale,
rate, increment , increase, vacation, or holiday or sick leave
period, hospitalization , sickness , medical, dental or other
insurance or indemnity coverage, or any other economic
benefit or emolument granted thereunder, or accruing or to
accrue to any employee or former employee of The Hartz
Mountain Corporation thereunder or in consequence
thereof. With regard to any such existing insurance or
indemnity coverage maintained by or through said Team-
sters Local 806, Respondent shall forthwith provide an
equivalent substitute so that no such coverage shall be
discontinued or lapse while in Respondent's employ.
238 Cf., e.g., Russell Motors, Inc.; Amalgamated Local Union 355, 198
NLRB 351 (1972), enfd. as modified 481 F.2d 996 (C.A. 2, 1973), cert. denied
414 U.S . 1062 (1973). No remedial order is made against Teamsters Local
806 since the consolidated complaint as amended contains no allegation of
violation by the Union of Sec . 8(bX2) or other provision of the Act.
239 In the event no exceptions are filed as provided in Sec. 102.46 of the
563
(b) Giving effect to, or maintaining, or asserting the
validity of any membership card or bargaining representa-
tion authorizational card executed by any employee of the
Jersey City, New Jersey, plant of The Hartz Mountain
Corporation on or since November 1, 1973, for the purpose
of recognizing said Teamsters Local 806 as the representa-
tive of the signatory of such card.
(c) Giving effect to any authorization executed by any
employee of the Jersey City, New Jersey, plant of The Hartz
Mountain Corporation on or since November 1, 1973,
requiring or authorizing The Hartz Mountain Corporation
to check off, deduct, withdraw, withhold, or otherwise not
pay to any such employee, or to pay over to Teamsters
Local 806 for initiation fees, dues, hospitalization, or other
insurance or indemnity, pension or retirement, or any other
obligation or incident of membership in Teamsters Local
806, any part of such employee's wages due; and return
each such authorization to the signatory employee, with a
letter or notation in English and Spanish stating only: "This
card is no longer effective. It is returned to you by order of
the National Labor Relations Board."
(d) Directly or indirectly giving, contributing, or extend-
ing any assistance, support, or preferential treatment to
Teamsters Local 806 or to any labor organization, in
violation of the Act.
(e) Directing, authorizing, or permitting any of its
officers, officials, supervisors, or agents to enlist or solicit,
directly or indirectly, any of its employees to join any labor
organization, or to withdraw or refrain from membership in
any labor organization, in violation of said Act.
(f) Threatening not to recognize, deal, or negotiate with
Distributive Workers District 65 (or any other labor
organization), in the event employees of The Hartz Moun-
tain Corporation select said District 65 (or any other labor
organization) as their bargaining representative in a unit
appropriate for collective bargaining.
(g) Encouraging or discouraging membership in any
labor organization by discriminating in regard to hire or
tenure of employment or any term or condition of employ-
ment, in violation of the Act.
(h) Terminating the employment of, discharging, laying
off, suspending, disciplining, or reprimanding any employ-
ee because of lawful membership in, activity on behalf of,
or sympathy with any labor organization, or because of his
or her lawful failure or refusal to join or affiliate with any
labor organization, or because he or she exercises any right
protected under said Act.
(i) In any other manner interfering with, restraining, or
coercing any employee in the exercise of the right to self-
organization; to form, join, or assist any labor organiza-
tion; to bargain collectively through representatives of his
own choosing; to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection; or to refrain from any and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Forthwith withdraw and withhold recognition from, Gladys Diaz
or negotiate or deal with, said Teamsters Local 806 as the Luz Fabiola Diaz
bargaining representative of any unit of employees at the Amada Flores
Jersey City, New Jersey, plant of The Hartz Mountain Alejandrina Fontanez
Corporation, unless and until said Teamsters Local 806 has Jacinta Fontanez
been duly certified by the Board to be such representative Maria J. Gonzalez
following a Board election . Lucia Malave
(b) Reimburse each employee or former employee of the Pascual Malave
Jersey City, New Jersey, plant of The Hartz Mountain Alejandrina Nieves
Corporation who has paid or been charged, or who has had
deducted from his or her wages , by checkoff or otherwise,
under or in consequence of the aforesaid recognition of or
collective agreements with Teamsters Local 806 or any
checkoff authorization or otherwise , or any modification,
renewal , or extension of any of the foregoing, any and all
initiation fees, dues, and other charges, payments, exac-
tions, and amounts paid by or on behalf of such employee,
on or since November 1, 1973,240 plus interest.
(c) Reimburse Distributive Workers District 65 for its
expense of organization incurred in connection with the
employees at the Jersey City, New Jersey, plant of The
Hartz Mountain Corporation prior to December 1, 1973,
and for its reasonable counsel fees and disbursements
incurred in the consolidated proceeding resulting in this
Order, the amounts thereof to be determined , if agreement
cannot be reached thereon , by order on petition to the
Board, i jurisdiction being expressly retained for that pur-
(d) Offer the following persons immediate and full
reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights,
privileges , and emoluments , expunge from their personnel
folders and all other records and entries of Respondent,
every indication that they were terminated , discharged, or
laid off for any reason involving poor or unsatisfactory
work performance or conduct , and make them whole for
any loss of pay they may have suffered by reason of
Respondent's discrimination against them , in the manner
set forth in "The Remedy" portion of the Decision of which
this Order forms a part:
Rita Acevedo Virginia Otero
Clara Aguilar Cecilia Pacheco
Fernando Aguirre Elsa Pacheco
Julia Aguirre Alida Pagan
Maria Elena Arguello Daisy Pagan
Irma Avellaneda Enriqueta Pagan
Elesa Bello Gladys Pelliccia
Damiana Cancel Eloisa (Aloisa) Perez
Milagros Cancel Luis (Enrique) Ramos
Luz C. (Celenia) Cardona Amalia Rivera
Mariana Castro Lydia M. Rivera
Dominga Cintron Mercedes Rivera
,Marie Diana Rosa M. Rivera
240 This provision is deemed particularly appropriate in view of the
inclusion in the unlawful collective agreements between Respondent and
Teamsters Local 806 , of mandatory maintenance-of-membership and check-
off requirements . Cf., e.g., Virginia Electric & Power Company v. N.LRB.,
319 U.S. 533, 539-541 (1943); Russell Motors, Inc., supra, N.L.A.B. v.
Raymond Buick, Inc, [Amalgamated Local Union 3551, 445 F .2d 644, 645
(C.A. 2, 1971); Bernhardt Bros Tugboat Service, Inc. v . NLR.B, 328 F.2d
757 (C.A. 7, 1964).
Marta Ocasio
Damiana Ruiz
Maria del Carmen Salcedo
Angel Santiago
Maria Estelle Santiago
Maria Teresa Santiago
Ada Iris Vargas
Ana Ventura
Rosa Villegas
Ana Zapata (DeKalb
Street)
Ana Zapata (Bright Street)
(e) Expunge from the personnel files of the following
persons, and from all other records and entries of Respon-
dent, every disciplinary warning or notation issued to them
in relation to their visit to Respondent's Jersey City, New
Jersey, Plant Manager Petrera on or about July 2, 1974:
Nilda Lopez Eloisa (Aloisa) Perez
Carmen Navarro Albertine (Albertina)
Rodriguez
Alejandrina Nieves Maria Sanchez
Concepcion Pastrana Maritza Tiburcio.
(f) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports , and all other records
necessary to analyze the amount of refunds and other
payments due under the terms of this Order.
(g) Post at its factory in Jersey City, New Jersey, copies of
the attached notice marked "Appendix," in Spanish as well.
as in English .242 Copies of said notice , on forms provided
by the Regional Director for Region 22 shall, after being
duly signed by Respondent's authorized representative, be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including its plant cafeteria in its
Jersey City, New Jersey, plant and all places in said plant
where notices to employees are customarily posted. Rea-
sonable steps shall be taken to insure that said notices are
not altered, defaced, or covered by any other material.
(h) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the consolidated amended
complaint in this proceeding be and the same is hereby
dismissed insofar as it relates to Respondent's termination
of employment of the following employees:
Jose Peguero Maria Lopez
Rafael Bueno Wilfredo Lorenzana
Francisco Altamirano Jose Maisonet
Miriam Arango Elsia Martinez
Fulvia Benjumeda Raul Salcedo
Maria Cruz Maria L. Sanchez
Natalia Esquilin Awilda Soto
241 Cf. Local57, International Ladies' Garment Workers' Union, AFL-CIO
[Garwm Corp. et all v. N.LR.B., 374 F.2d 295, 304, fn. 22 (C.A.D.C., 1967),
cert. denied 387 U.S. 942.
242 In the event that 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."