Ramar Dress Corp.

National Labor Relations Board - Board Decisions

Apr 10, 1969

175 N.L.R.B. 320 (N.L.R.B. 1969)

320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ramar Dress Corp .; Samuel Todaro Individually and
International Ladies' Garment Workers' Union,
AFL-CIO. Case 3-CA-3434
April 10, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, ANDZAGORiA
On September 19, 1968 Trial Examiner Samuel
M. Singer issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that the Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that such allegations
be dismissed. Thereafter, the General Counsel, the
Respondent and the Charging Party filed exceptions
to the Trial Examiner's Decision and the General
Counsel filed a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Ramar Dress Corp.,
Buffalo, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
and
REPORT ON CHALLENGED BALLOTS
SAMUEL M SINGER, Trial Examiner These are
consolidated cases heard before me in Buffalo, New York,
on various dates between June 5 and 26, 1968.' In Case
3-CA-3434 General Counsel of the National Labor
Relations Board, by the Regional Director for Region 3,
issued a complaint on April 29 and consolidated
complaint on May 16, based on charges and amended
charges filed on various dates between February 19 and
April 11 The complaint alleged that Respondent violated
Section 8(a)(l) and (3) of the National Labor Relations
Act, as amended , through interference , restraint, and
coercion , including interrogation and threats, and by
unlawfully discharging and refusing to reinstate seven
employees for protected concerted and union activities.
Case 3-RC-4369 arises out of a representation election
conducted by the Regional Director on March 13, which
the Union lost by a vote of 21 to 26, with 12 ballots
challenged It appearing after investigation that some of
the challenges raised substantial issues identical to issues
raised in the unfair labor practice case (i.e , the right of
seven alleged discriminatees to vote in the election) and
that the challenges were sufficient to affect the election
results, the proceedings were consolidated for hearing.
All parties appeared at the hearing and were afforded
full opportunity to be heard , to examine and
cross-examine witnesses , and to introduce relevant
evidence . Only Respondent filed a brief
Upon the entire record2 and my observation of the
witnesses , I make the following
FINDINGS AND CONCLUSIONS
I BUSINESS OF RESPONDENT ; LABOR ORGANIZATION
INVOLVED
Ramar Dress Corp (Ramar), a New York corporation,
is engaged in the manufacture and sale of dresses at its
plant in Buffalo, New York, the only plant here involved.
During the past year, a representative period, Ramar
shipped from that plant to points outside of New York
State products valued in excess of $50,000. I find that at
all material times Ramar has been and is an employer
engaged in commerce within the meaning of the Act.
The Charging Party is a labor organization within the
meaning of the Act
II THE UNFAIR LABOR PRACTICES
A. Introduction; Union Organizational Drive
Ramar commenced business in early December 1967, as
a subcontractor, manufacturing girls' low priced dresses
for two New York contractors (Casco Fashions and
Wendy James) While the latter supply the materials and
patterns Ramar furnishes the labor. Practically all of
Ramar's production workers (sewers) are on piece work
Those not producing in sufficient quantity to earn the
New York State $1 60 hourly minimum wage are given
"make-up" pay
Samuel Todaro. one of Ramar's four stockholders and
directors, is its president and general manager.' Elizabeth
Bunza, the floorlady who reports to Todaro, supervises all
of the sewers. Todaro has overall supervision over the
entire plant, including cutters, spreaders, and maintenance
men.
The Union launched its campaign to organize
Respondent's employees on February 6. Mannis, a paid
organizer, visited the plant, spoke to employees outside
the shop, distributed leaflets, and solicited adherents On
'Dates are 1968 throughout unless otherwise stated
'Transcript corrected by my order on notice dated August 28, 1968
'Todaro is also named individually as a respondent, for convenience, the
corporate and individual respondents are collectively referred to herein as
"Respondent "
175 NLRB No. 52
RAMAR DRESS CORP. 321
February 13, he visited the homes of employees Rios,
Gauthier, and Concepcion, signed up all three, and left
with them Union cards for distribution to other
employees.
General Counsel contends that on February 16 and 19
Respondent discriminatorily discharged the above-named
three employees and four others because of suspected
Union affiliation and activity. Respondent, on the other
hand, contends that all were discharged for cause - for
failure to achieve sufficient production, or poor
workmanship, or misbehavior
On the basis of the entire record, I find and infer
(contrary to Respondent's contention) that prior to the
discharges Respondent was aware of all seven employees'
Union sympathies as well as of the Union's organizational
drive. I rely particularly on the following circumstances:
1 Employee Rios credibly testified that during lunch
break on February 14 or 15 she was signing up employees
in the restroom while another employee stood guard
outside to "watch out" for Floorlady Bunza. When told
that Bunza "was coming," Rios told the six or seven girls
in the restroom to return the cards to her One girl said
that Bunza "had nothing to do with us . . . this was a free
country." While Rios was still collecting the cards, Bunza
walked in, saying, "I heard that . . Sam Todaro wasn't
long enough in the business to have a Union come into
the shop." Rios left and Bunza remained in the ladies'
room.4
2. Teonila Alvarado credibly testified that employee
Vera Bunza, Floorlady Bunza's sister-in-law, twice came
to her machine to inquire "who had the cards." Alvarado
said she did not know, but Vera "kept insisting" that she
did According to employee Rios' uncontradicted, credited
testimony, Alvarado later reported the incident to Rios.
Believing that Vera "maybe . . wanted to sign a card,"
Rios went to see Vera on February 16 (the day Rios was
discharged). Vera said that she "wasn't sure" that she
wanted to sign a card because she anticipated leaving the
shop before "too long." Soon afterward, Rios saw Vera
converse with Todaro, both "looking" toward hers
3. All of the seven discharged employees are Puerto
Ricans. At least two of them (Gauthier and Teonila) were
instrumental in steering others in the group (Concepcion,
Bonilla, and Norie Alvarado) to jobs with Respondent
All associated together in the shop, eating lunch at the
same table every day, within view of the Company office
It was at this table during lunch on February 14 that Rios
signed up Puerto Rican coworkers. Floorlady Bunza
customarily ate lunch at a table with floorgirls working in
front of the shop' Employees Teonila Alvarado and
Gauthier credibly testified that Respondent employed only
two Puerto Ricans, other than the seven dischargees, on
February 16 and 19 (Diaz and Mendez).'
'Bunza recalled seeing the girls in the restroom , but denied saying
"anything to them " She also claimed that Rios "wasn ' t there," although
in her preheanng affidavit she admitted the contrary, there swearing that
as she " unexpectedly " entered the washroom " Daisy Rios and some of the
other girls were discussing the union " She further denied mentioning the
incident to Todaro, claiming she "never spoke to him about the Union"
until she learned that a Board election was scheduled in March I do not
credit Bunza's version of the washroom incident
'Vera Bunza was not called to contradict Rios and Alvarado or
otherwise to explain this incident
'Bunza's testimony that she never saw the Puerto Rican employees
lunching at one table or for that matter "anybody else" eating in groups, is
incredible Todaro testified that employees ate at tables "all over the
shop," the plant having no cafeteria
'While Todaro indicated that he had hired " maybe 15 or 20 Puerto
Rican girls" since he opened shop , he did not testify how many were in the
4. Company President Todaro's testimony as to when
and circumstances under which he first learned of the
organizational drive is vague, equivocal, and confusing.
Thus, while Todaro testified that he first heard of the
drive on the night of Rios' discharge (February 16) or
"the night after" when "somebody" told him that Rios
was passing out Union cards, in his prehearing affidavit
he indicated that he first heard of Rios' activity "during
the lunch period from 12 to 12:30" and later again saw
her after 4 30 p m. quitting time on the day she was
discharged! And while he testified that Rios' activity was
called to his attention by the janitor or sweeper, he also
testified that it was an employee waiting outside to be
picked up by her husband who directed him to this
activity; at another point, however, he stated that it was
his floorlady (Bunza ) and two other employees (Favata
and Randazzo) who did this'
5. Floorlady Bunza admitted that she "overheard"
employees talking Union among themselves even before
the February 14 or 15 washroom incident (supra, A, 1)
She also admitted talking about the Union to her
brother-in-law, Angelo Licata, who worked in the plant
(infra, III), when she and Licata exchanged home visits
Viewing the record as a whole - including the small
size of the plant," Floorlady Bunza's admitted knowledge
of union discussions in the restroom, her knowledge that
Rios was one of the Unionists, her close association with
her sister-in-law Vera and brother-in-law Licata who knew
of the organizational drive, the fact that all seven
dischargees were closely associated and included leading
Unionist Rios, and President Todaro's transparent
attempt to belittle or conceal his knowledge of the Union
drive - I find that prior to the discharges Respondent
knew or suspected that all seven dischargees were union
sympathizers. "Proof of knowledge of union activities may
be established by circumstantial as well as by direct
evidence." Tru-Line Metal Products Company, 138
NLRB 964. Indeed, such knowledge, being a state of
mind, "must usually be discovered by inference." F W
Woolworth Company v. N L.R B, 121 F.2d 658, 660
(C A. 2). See also Hartsell Mills Company v N L R.B ,
111 F.2d 291, 293 (C A 4); NL.R.B v Schill Steel
Products, 340 F 2d 568, 573 (C.A. 5)
B. Discharge of Daisy Rios
Rios, hired on December 30, 1967, worked as a sewing
machine operator until discharged on February 16
Company President Todaro described her as a
"satisfactory" worker meeting production requirements
who "was improving quite a bit." Rios credibly testified
without contradiction that when she asked for a raise at
the end of January, Todaro told her "to wait and be
patient, because pretty soon [she] was going to see an
increase in [her] pay." She similarly testified that on
February 13 or 14, Todaro told her that he had checked
her production, that she "was doing real good," that she
Company's employ on February 16 and 19 According to Todaro
"around" five Puerto Ricans were employed at the time of the hearing
(June)
°Todaro sought to explain away the discrepancy by contending that he
"saw [Rios] at 4 30 and another girl during lunchtime " At another point
he stated , "I seen Daisy[Rios] at 12 to 12 30, but not on that day "
'Randazzo , an antiunion employee (infra, fn 12), testified that she knew
of the Union activity even before she left for a trip to New York during
the week of February 12.
''Angwell Curtain Company v N L R B , 192 F 2d 899, 903 (C.A. 7),
N L R B v. Dove Coal Company, 369 F 2d 849, 851 (C A 4)
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should "not listen to anybody else, and that pretty soon
[she] was going to be making a lot of money."
As previously noted, Rios was the leading union spirit
in the plant. It was she who contacted the Union in the
first week'of February after discussing the need of a union
with her Puerto Rican coworkers. She signed a union card
when Union Representative Mannis visited her home on
February 13. During the lunchbreaks on the 3 succeeding
days, she openly solicited union memberships at
lunchtables and in the ladies' washroom, signing up no
less than 20 employees, including her Puerto Rican
friends. Vera Bunza , the floorlady's sister-in-law, was
included among the women to whom she spoke about
joining the Union on the day of her discharge, Friday,
February 16 (supra, A, 2). Following her discharge, Rios
continued her Union activity on the next workday
(Monday, February 19), distributing cards outside of the
plant.
Rios was apprised of her discharge by Todaro, who
informed- Rios and Gauthier (who also was called to the
office, infra, D, 3.) that he "won't be able to use you
anymore." When Rios asked "why," Todaro said he
"didn't like what was going on." When Rios again asked
for the reason, Todaro replied that he "didn't have to give
[her] a reason," adding that she "should be able to figure
it out by [herself].""
When first asked to explain what led to Rios'
discharge, Todaro testified:
Well, a couple of times I found her standing on
tables, opening windows, and I told her not only was it
causing confusion in the shop, but she could fall and get
hurt. She had a couple little arguments with the girls on
the line . I was getting talks from my floor lady too.
She was getting into a few arguments with the girls on
the line close to her.
In later testimony, Todaro portrayed what he initially
described "couple little arguments" among the girls as
major everyday clashes - involving "jumping up and
down" and opening the window and "screaming" by Rios
- followed by threats of employees to quit unless the
window was kept closed in cold February weather and
repeated warnings to Rios by Todaro and his floorlady to
comply with instructions against opening the window. To
corroborate Todaro, Respondent called Floorlady Bunza
and employee Randazzo, 2 but no other of the allegedly
many other employees involved in these claimed incidents.
Rios denied the arguments attributed to her, recalling only
a single instance , about a week before her discharge, when
Todaro talked to her about the window. She testified that
she opened the window at the request of Randazzo, who
had "difficulty in breathing and . . . needed air," and that.
others, including Todaro, had similarly opened the
window for Randazzo.
I do not credit the testimony of .Todaro, Bunza, and
Randazzo concerning the window incidents - testimony
in large part vague, confusing , contradictory, and
exaggerated. Randazzo and Bunza admitted that shop
"Based on the credited testimony of Rios who impressed me as a
forthright and credible witness . Todaro and his secretary (Donna Stevick,
who also was present) admitted that Todaro did not give Rios the reason
for her discharge , although he did state that Gauthier was discharged for
poor production (infra, D, 3).
"Randazzo , an antiunion employee, admittedly refused outright even to
talk to General Counsel' s representative during investigation of the case.
She volunteered to be the Company 's observer in the election after learning
that another employee acted as Union observer . As hereafter noted (infra,
II, E), Randazzo initiated a poll to determine the employees' sentiments
toward the Union.
conditions were such as to "certainly" require outside
ventilation even in February and that they both requested
employees to keep the window "open awhile" or to "some
extent" because of excessive heat from "the motor with
the shaft" where Randazzo and Rios were working and
because of "the dust" flying around. Randazzo also
admitted asking Rios to open the window "on several
occasions, maybe one or two occasions" since she herself
could not," but claimed that Rios would open it too
much. Although Todaro claimed that Randazzo had
complained to him about Rios' opening the window and,
indeed, that Randazzo "threatened to quit because of the
window situation," Randazzo, however, explicitly denied
talking to Todaro about any "window problems."
According to Randazzo, Todaro had come to her area in
regard to the window only once. Bunza herself testified
that she saw Rios open the window only once and even
then "not much ." Bunza was extremely vague as to the
nature and frequency of her alleged "warnings" to Rios
about the window, even admitted that Rios was not
warned of discharge.10 She also admitted making no
recommendation concerning her termination. Todaro
exhibited difficulty in recalling the nature of Bunza's
reports, claiming "I just knew she [Bunza ] didn't like it."
Todaro had similar difficulty in recalling the number of
times, including the last time he spoke to Rios concerning
the window.
In view of all of the foregoing and the entire record, I
find and conclude that the reason advanced for Rios'
discharge is contrived and pretextuous, designed to
disguise Respondent's discriminatory motivation.
Moreover, it is significant that although Respondent's
chief managerial officials (Todaro and Bunza) contended
that the window episodes were daily occurrences lasting
over a period of 3 to 4 weeks, Rios' work record shows
only a single entry relating to this matter, allegedly made
by Todaro's secretary on February 13, to the effect that
"there have been complaints about her arguing with other
girls [and] giving the floorlady a hard time." Also
significant is the fact that although he admitted at the
hearing that he did not give Rios the specific reason for
the discharge (the window incidents), in his prehearing
affidavit Todaro indicated that he did and, indeed, that he
told her he "would put her back if she stopped making all
the trouble about the windows." Furthermore, if, as
Todaro claimed, he offered to retain Rios, it would appear
that Rios' prior conduct was not as intolerable as he
attempted to portray • at the hearing. Considering the
inadequacy of Respondent's explanations for the
discharge, the fact that Rios was a highly satisfactory
worker in a period of extreme operator "shortage" (infra,
fn. 33), Rios' known unionism , the fact that she was the
leading union protagonist, the timing of the discharge
within 3 days after she started distributing Union cards,
and the fact that Respondent did not give her any reason
for the discharge at the time of dismissal , I find that there
"Respondent's witnesses described the window as "pretty heavy,"
admitting that it was necessary to "climb up" on the window ledge or on a
table to open it. Randazzo stated that Rios, a young slim girl , "put her
hands on the ledge and picked herself up ." She testified that she requested
others to open the window also, naming the, only two males on the
production floor , Todaro and Licata . Bunza's testimony at one point that
Rios was "the only" girl that wanted the window open is incredible and
inconsistent with the testimony of Respondent 's own witness Randazzo.
"Bunza also stated that "the last time" she talked to Rios about the
window "could have been the day before or two days before" her
discharge , but then added "it could have been a week before ... I used to
talk to her everyday about it."
RAMAR DRESS CORP. 323
was "considerably more than a coincidental connection"
(N.L R B v. Condenser Corporation of America, 128
F 2d 67, 75 (C.A. 3)), between Rios' intensive union
activity and her discharge . The refusal to tell Rios the
reason for the discharge was a circumstance which might
"alone . be enough to support an inference that the
[discharge] was discriminatory " N L R.B v. Griggs
Equipment , Inc., 307 F 2d 275, 278 (C.A. 5).15
C Discharge of Norie Alvarado and Teonila
Alvarado
1. None Alvarado
None Alvarado ("Norie"), hired on January 23,
worked as a trimmer on an hourly basis until discharged
on February 19. She had learned of the job through her
cousin, Teonila Alvarado. As a trimmer, she cleaned
dresses (cutting and removing threads), tagged them, and
did "whatever she was needed for" in her department in
the rear of the plant with five to seven other employees,
including pressers. Todaro described her as "a very good
employee" until shortly before the discharge.
Norie signed a union card at lunch on Wednesday,
February 14, at Rios' solicitation at the table. On
Monday, February 19, Todaro told her he "did not need
[her] anymore." According to Todaro, he let Norie go
because her work had "deteriorated" before the discharge.
Although at one point claiming he did not "know the
reason why" her work deteriorated, at another point he
attributed it to the fact that she was pregnant and had
difficulty in standing and raising her arms (Norie was 1
month pregnant when she started to work on January 23).
Further according to Todaro, a week before the discharge
None had complained about the strenuousness of the
work in view of her condition and requested a transfer to
another job, but he told her nothing else was available.
However, he also testified that he did transfer her to
turning collars - "a simple operation" - during her last
week 16
Although in his testimony Todaro referred to quality
"deterioration" in Norie's work and in his prehearing
affidavit assigned poor "workmanship" as the ground for
her discharge, Todaro nevertheless claimed that he was
only concerned with Norie 's "general slowing down of her
work." Todaro admitted, however, that "it is hard to
figure production on that type of job" (no production
records were kept for the operation as in the case of
sewers) and that he could tell that Norie was slowing
down "just from observation." Floorlady Bunza testified
that she spoke to Norie about her decreased output, but
she was vague as to when and the circumstances under
which she did this, indicating that she actually talked to
her only when "she would be with the other [six or seven]
girls in a group" in the rear department where a general
"slowdown" existed "
Todaro indicated that the "general attitude" of None
and her cousin Teonila were also factors in his decision to
discharge these employees Todaro testified, "It had been
that [Norie] was very cooperative. She was doing her
work well at the time. In the last two or three weeks
there, I noticed that she wasn't producing, she wasn't
working There was a lot of talking, a lot of giggling, a lot
of stuff along that line. . . However, there is no
evidence, nor claim, that this "attitude" was ever raised
with Norie. Moreover, Todaro testified that he "didn't
actually like firing this particular girl" and that "If [he]
could have found another job for her [after the discharge,
he] might have called her" back. He also testified that
"when I did let her go, to me it appeared like she more or
less wanted to leave."
Todaro indicated that although he had no fixed policy
regarding recall of employees off for maternity reasons, he
recalled at least one instance in which he told such an
employee to return
2. Teonila Alvarado
Teonila Alvarado ("Teonila"), hired as a presser on
January 3, worked as an hourly employee until discharged
on February 16. In addition to manually pressing
garments , she packaged and checked them out. According
to Todaro, she was "a very good employee, quiet, did her
work" until prior to her discharge when her ironing
became "a little sloppy" and some of her work had to be
redone.1e Teonila credibly testified, without contradiction,
that Todaro had complimented her work "quite often"
and that only 2 weeks before her discharge Todaro
prevailed upon her not to carry out her intention to resign
because underpaid Todaro testified that he had no
"problem" regarding her rate of production, but only her
"workmanship." At the outset of his testimony, Todaro
listed "another problem with her," namely, that a "couple
of times she didn't show up" to work. And, as in the case
of her cousin Norie, Todaro also stated that he had
detected a change in her "general attitude" toward her
work. In a letter to the Regional Director reciting reasons
for the discharge, company counsel mentioned still
another alleged dereliction on the part of Teonila -
"behavior in the plant ... resented by her coworkers," for
which Teonila was given "warning."
Like None, Teonila signed the union card Rios handed
her at lunch on February 14 As noted (supra, A, 2), Vera
Bunza, the floorlady' s sister-in-law, later approached her
to ascertain "who had the cards." On the same day
(Friday, February 16), Teonila was scheduled to work
"Contrary to Respondent 's suggestion the fact that in addition to filing
unfair labor practice charges, Rios and the other six Puerto Rican
dischargees also filed with the New York State Commission for Human
Rights complaints of discrimination because of "race and national origin,"
in no way negates the allegations of discrimination based on Union
membership and activity Plainly there is no inconsistency nor any duty to
elect Nor, of course, does the State agency's dismissal of the charges (in
this case after preliminary investigation and without conducting a hearing
thereon) in any way affect the Board's jurisdiction and power to pass upon
the unfair labor practice charges here Cf N L R B v. Stafford Trucking,
Inc, 371 F 2d 244, 249 (C A 7), N L R B v Western Meat Packers,
Inc. 368 F 2d 65, 70 (C A. 10)
"None denied that she had complained to Todaro that her work had
become strenuous because of her physical condition She worked every day
in the last 2 weeks of her employment.
"Asked what she told None, Bunza testified, "Like I tell anybody
When I go, I'll say, what's the holdup9 The dresses are going out And I
told them they had to hurry up . " She could not recall how often she
spoke to None, stating , " I don't know exactly how many times I talked
to everybody I talked to everybody all day long " She admitted that she
never actually warned None that she would have to leave if her production
failed to "pick up."
"Although in the latter part of his testimony Todaro sought to convey
the impression that Teonila ' s pressing was intolerable , at the beginning of
his testimony he admitted that it was only a "couple of times we had to
have it [her pressing] reironed."
"At the hearing Todaro repudiated this as a reason for the discharge,
conceding that the "things" he had heard about Teonila were mere
"rumors," that his counsel "could have misunderstood " what he had said,
and that he "didn't let her go for that reason "
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
overtime, but Todaro later in the day told her she "had to
go and could not work overtime." On Monday,
February 19, Teonila telephoned Todaro that she was ill
Todaro asked her "why was [she] calling him because he
fired [her] on the past Friday X20 Todaro testified that
when he told Teonila that he "couldn't use her anymore,"
Teonila "sounded like she was happy about it."
Insofar as Teonila's alleged "poor" workmanship is
concerned, the credited evidence establishes that it was
difficult to determine which of Respondent's two pressers
was responsible for alleged poor work Respondent's other
presser, a young girl just out of school, without prior
experience, worked side by side with Teonila.21 Teonila
credibly testified that after dresses were pressed they were
tied together and mingled 22 Although Floorlady Bunza,
like Todaro, testified that she "didn't like the work" of
Teonila, she admitted that she had no occasion to check
the work or had little to do with this work. Also,
according to Bunza, Teonila's performance "wasn't
compared to anybody else[s] " Todaro, who claimed that
he did inspect the work, testified that he "just kept talking
to her that she had to do her work a little bit better,"
warning her a "couple of times" on the matter He had
"no idea," however, when he "warned" her prior to the
discharge.23 And Todaro's secretary (Stevick), who from
time to time was instructed to note adverse performance
and conduct on production cards, admitted that there was
none on Teonila's
3. Conclusions
I find and conclude that, as in the case of Rios, the
reasons advanced for the discharge of the two Alvarados
were pretexts to conceal the true motive for the
discharges, namely, the employees' suspected union
sympathies. I rely particularly on the false, contradictory,
and inconsistent reasons given for the discharges,20 the fact
that the claimed derelictions commenced shortly before
advent of the Union, prior to which they were admittedly
"The above findings are based on Teonila ' s credited testimony , Todaro
did not dispute her testimony regarding overtime While Todaro indicated
that he had discharged Teonila on February 16 and Teonila gave the
discharge date as February 19 (as also did General Counsel), the difference
in date is apparently based on a misunderstanding , Teonila construing
Todaro's February 16 statement that she "had to go" as merely a
cancellation of Todaro's prior request to work overtime whereas Todaro
intended his statement as a discharge Under all the circumstances, I find
that Teonila was discharged on February 16
In her complaint with the New York State Commission for Human
Rights alleging discrimination based on "race and national origin" (supra,
fn 15), Teonila is quoted as saying that when Todaro asked her to work
overtime (on February 16), Todaro said that he "wasn 't satisfied with my
work " However, at the hearing Teonila asserted that this statement was
taken down inaccurately and was "incorrect ," explaining that, to the
contrary, Todaro said "that he was satisfied" with her work I credit the
testimony of Teonila, whose testimonial demeanor impressed me
Moreover, it seems unlikely , in the absence of explanation , that Todaro
would have asked her to work overtime if dissatisfied with her work
"This presser was the daughter of Mrs Sciandara , an antiunion
employee
"Floorlady Bunza admitted that she could not tell which presser had
pressed a particular garment unless she saw the "garment real close to her
iron" since "once they' re pushed over, sometimes you lose track of them
She insisted , however, that the garments were also kept separately
"At one point, Todaro indicated that Teonila 's poor performance toward
the end of her employment may have been due to her "trying to push the
dresses out faster because we told her about that time that we were going
to start to put dresses on a piecework basis and she was starting to push
them out fast " After Teonila's discharge the pressers were placed on
piecework
satisfactory workers; the vague and confusing testimony
concerning warnings given the employees; and the timing
of the discharges within several days after they signed
Union cards. I am persuaded that Respondent fired the
two Alvarados because it suspected them of union
sympathy, in view of their close association with Rios, the
sparkplug of the union movement in the plant. "The
Company's vacillation and the multiplicity of its alleged
reasons for firing" (N.L R B. v. Schill Steel Products,
Inc , 340 F 2d 568, 573 (C A. 5)), as well as the fact that
"the complaints urged against [the employees] had to do
with a time concurrent with [union] activities" (N L R.B
v. Richter's Bakery, 140 F 2d 870, 872 (C.A 5)), reinforce
the conclusion that Respondent's motivation was
discriminatory and illegal.
D. Discharges of Bonilla, Suarez, Gauthier, and
Concepcion
Company President Todaro testified that these four
employees were discharged for low production. The thrust
of his testimony is that he operated a small new company
which could not continue if required to pay low producing
employees substantial "makeup" pay (i.e , the difference
between piece-rate earnings and the $1.60-per-hour
statutory minimum wage rate).
As noted (supra, A), Respondent started production in
early December 1967. The four employees here involved
were hired in late December or January and were
terminated after only a few weeks. All were sewing
machine operators, originally paid the straight
$1 60-per-hour minimum until shifted to piecework in the
beginning of February. As appears below, since none
produced sufficiently in any of the 3 weeks prior to
termination (weeks ending February 2 through February
16) to earn the minimum hourly wage rate, they were
therefore each given substantial "makeup" pay.
1. Diana Bonilla was hired as a sewer at the end of
December 1967 and discharged on February 19. Floorlady
Bunza described her as "good" but "very slow." Todaro
stated that her rate of production "was bad all of the time
from the time she started." According to Todaro, Bonilla
"never got close" to earning the minimum $1.60-per-hour
wage rate 25 Both Todaro and Bunza discussed with
Bonilla her performance. Shortly prior to her discharge
Bonilla was switched to an "overlock" machine (which
was "easier to operate" than her last machine) in the hope
that she might improve her production, but according to
Bunza she continued to be "very slow." Todaro testified
that "[p]ractically nobody that we have put on that
machine has failed to make their time" but that Bonilla
"failed to make her time" even on that machine.26
"As to None Alvarado alleged work deterioration , work slowdown, and
"general attitude " As to Teonila Alvarado poor "workmanship,"
absenteeism, "general attitude," and "behavior resented by her
co-workers "
"Apparently Bonilla was not even aware that she was on piecework since
she testified that she was paid by the "hour "
"To the extent indicated, I credit Todaro's and Bunza's testimony
regarding the production and work record of Bonilla and of the other three
dischargees hereinafter described Although I have discredited portions of
their testimony regarding the discharge of employees Rios and the
Alvarados, their testimony respecting the performance of Bonilla, Suarez,
Gauthier , and Concepcion is corroborated by production records, by
portions of the employees ' own testimony, and by objective circumstances
Some of the employee testimony appears to be inherently improbable -
as, for example, the testimony that no management official ever discussed
or warned the employees concerning insufficient production and, indeed,
that they had been complimented concerning production - testimony I
RAMAR DRESS CORP. 325
Bonilla's production card shows the following piece-rate
earnings and "makeup" payments for each of the 3 (full,
40-hour) weeks before discharge.27
Feb. 2 Feb. 9 Feb. 16
Piece
rate 20.94 16.51 32.33
Makeup 47.49 31.62
Total 61.60 64.00 64.00
Bonilla, like most of the dischargees , signed a Union
card given her by Rios at lunch on February 14. She did
not otherwise participate in union activity. At the end of
the day on February 19, Todaro told her he "didn't need"
her any more. Todaro testified that he brought over
Bonilla's production card and "showed her where I just
couldn't keep her anymore and she understood me very
well."
2 Erohita Suarez was hired on January 2 and
discharged on February 19. Bunza and Todaro testified
that Suarez "never made her rate," Todaro indicating that
she was kept as long as she was only because of his
difficulty in getting a replacement due to a shortage of
operators in the Buffalo area (infra, fn. 33). Both recalled
going over her production card and admonishing her to
improve production. Suarez' production card shows the
following piece-rate earnings and "makeups " for the 3
weeks before discharge:
Feb, 2 Feb. 9 Feb, 16
(16 hours) (44.5 hrs.) (39.5 hrs.)
Piece
rate 13 65 31.85 38.32
Makeup 11.95 42.95 24.88
Total 25 60 74.80 63.20
Suarez signed the union card that Rios handed her on
February 14. She was discharged on February 19, Todaro
telling her, "I don't need you anymore."
3. Maria Gauthier, hired on December 22, 1967 and
discharged on February 16, 1968, performed various
operations , including setting zippers. She signed a union
card on February 13 and solicited, but failed to obtain,
card signatures from two or three other employees. At the
time of hire, she told Floorlady Bunza that she had I1
years' sewing experience. She also showed Todaro her
Union card , disclosing the fact that she had been a union
member in other (New York City) shops.
Floorlady Bunza described Gauthier as a "fair
operator," but indicated (as did Todaro) that she had
consistently failed to make production. Todaro and Bunza
testified that they had discussed with Gauthier her poor
production record on several occasions , warning her that
have difficulty accepting in view of objective and admitted evidence
demonstrating consistent production deficiencies
"Respondent started to record hourly production figures when it hired
its office girl or secretary (Donna Stevick) at the end of January The
entries were based on daily production sheets which the operators were
required to complete, the employee retaining a copy Where, as often was
the case, the production sheets were incomplete (e g , the operator kept no
record , or failed to list her time number, or the item she worked on, or the
price of the style), the employee was credited with and paid straight time
($1 60 minimum hourly wage). There is no evidentiary showing that the 3
weeks' production reflected on Bonilla' s production card (or on that of any
other dischargee here involved) was atypical although, to be sure, it is
argued that had she been allowed to remain she would have improved - a
speculative contingency I cannot indulge in
she would have to show improvement. Although Gauthier
claimed that she had been "every day . . increasing the
quantity" of zippers produced, her records, kept in her
own handwriting, do not support this claim."
Respondent's records (Gauthier's production card)
shows her piece -rate earnings and makeup pay as follows-
Feb. 2 Feb. 9 Feb. 16
(39.75 hrs.)(39.75 hrs.)(34.25 hrs.)
Piece
rate
Makeup
33.82 28.66 40.52
27.41 34.94 14 28
Total 61.23 63 60 54.80
Todaro testified that on examining Gauthier's card the
night before her discharge, he "couldn't wait until she
came in in the morning to talk to her." When he called
her on the next day, he told her that he "couldn't use her
anymore," giving as his reason poor "production.""
4. Rosa Concepcion worked for Respondent for 3
weeks (January 29 - February 16) at different
operations, the last few days on zippers. She testified that
she had 30 years' experience as a machine operator,
working on all sections of a garment and had set zippers.
When she applied for the job, she told Todaro that she
had been a union member for 16 years and showed him
her union book Concepcion signed a union card on
February 13, testifying, "I think I gave out two [other]
cards and the third one was refused."
Todaro and Bunza testified that despite her claimed
extensive experience in the dress industry, Concepcion was
"a very slow operator" and that they had to warn her
about rate of production. Bunza testified "there [were]
times that I would go to her and she would give me a
hard time and tell me that her work was all right, and I
would have to show it to her and explain to her it wasn't
"Gauthier sought to convey the impression that she had only little
experience in setting zippers, despite the fact that she had been an
all-around operator for 11 years She admitted, however, that she handled
"the complete garment" and "worked on zippers" at previous jobs in New
York Although first testifying that she began to set zippers only "a couple
of days before [she] was fired," she admitted that she did such work prior
thereto (end of January and early February) after being confronted with
her record book According to this record book, she set only 80 to 100
zippers on January 30 and February 1, but as many as 255 on February
14 Yet she also testified that "the most" she ever produced was 198
(Employee Rios, who was considered a good operator, supra, II, B, was
able to set 250 zippers when she was discharged ) I place no reliance on
Gauthier's confusing testimony on this subject , nor on the entries in her
record book She conceded that "this book is mixed up ," that it "is not
complete," that pages were missing , and that she had forgotten to make
entries therein
"For reasons indicated in the preceding footnote, I have misgivings
about the reliability of Gauthier' s production as reflected on her card, since
it was based on Gauthier's own daily production records which, as shown,
were totally unreliable With regard to those days on which Gauthier's
records showed no production , it is unreasonable to assume that her
production exceeded or even equaled that which she would have earned at
the prevailing piece rates in order to arrive at the $1 60 required minimum
hourly rate which was paid where her record failed to show production (see
fn 27, supra)
"As related supra , II, B, Gauthier and Rios were called in at the same
time However , unlike in the case of Rios, Gauthier was furnished the
reason for her discharge ( I do not credit Gauthier' s testimony to the
extent that it implies that she was not given such reason ) Todaro's
testimony that he told Gauthier she was discharged for low production is
corroborated by the office girl (Stevick) who heard the conversation
Stevick and Todaro admitted , however , that Rios was not given the reason
for Rios' discharge , Todaro merely telling Rios "she knew the reason "
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the way I wanted it "" Todaro testified that she
constantly complained about the piece rates and was more
"interested in raising the prices" than in meeting
production requirements. Concepcion admitted that the
number of zippers she turned out between February 12
and 16 (she was on zipper production on those days) was
low, asserting only that she "was trying to do [her] best
each day.s32 Her production card shows her piece-rate
earnings and makeup payments as
Feb 2 Feb. 9 Feb 16
(39.75 firs )(39.75 hrs.)(33 hours)
Piece
rate
Makeup
32.73 31 19 24.08
28.50 32.41 28.72
Total 61.23 63.60 52 80
Concepcion testified that she was called to the office on
the morning of February 16 and told by Todaro that he
"could not stand [her] any longer and he did not need
[her]," explaining that she "did not produce enough."
Todaro testified, "I felt that I had enough of her in the
plant and I felt that I just better get rid of her."
Apparently believing that she was fired for union activity
(she did not, however, express this belief to Todaro),
Concepcion went over to the Union girls and told them
"to continue fighting for the Union Don't stop, don't be
afraid... "
5. Conclusions
Based on the entire record , I find that General Counsel
has failed to meet the burden of establishing by a
preponderance of the substantial credible evidence that the
discharges of Bonilla, Suarez , Gauthier , and Concepcion
were discriminatorily motivated I find that the reason for
the discharges was the employees' failure to produce
sufficient amounts on piece rate, thereby requiring
Respondent to give them substantial " makeups" in order
to meet the statutory $ 1.60-per-hour minimum wage rates.
The record shows that while Bonilla's actual piece-rate
earnings in the 3 weeks before discharge ranged from
$16.51 to $32.38, her makeup pay ranged from $31 62 to
$47.49. Suarez ' actual earnings were $13.65 to $38.32, but
her makeups were $11 95 to $42.95 Gauthier had
earnings of $28.66 to $40.52 and makeups of $ 14 28 to
$34.94 Concepcion ' s earnings ranged from $24.08 to
$32.73, while her makeup ranged from $28.50 to $32.41.
The credited evidence also shows that each of the four
employees was specifically warned about her low
production . For ought that appears, Gauthier ' s production
may even have been lower than reflected in Respondent's
records, since those records were based on her own
personal reports which , as we have seen , were unreliable.
"Bunza's testimony was corroborated by Concepcion herself when she
stated, "Elizabeth [Bunza would ] show me the way to make zippers, but I
have another way to make zippers and I make in my own way She show
[sic] her way , but I start to make in my own way and then she came to me
and she told me, to make them the way she showed me I said , 'That way
is easier to me, that is the way I used to make' Sometimes I make
her way and sometimes I make mine "
"Concepcion asserted that she was not "a zipper maker of experience"
although as previously noted, she also testified that she had worked on all
operations , including zippers, in her 30 years in the industry Concepcion's
own records show that she produced only 72 zippers on February 12, 107
on February 13, and 118 on February 14 and 15 As previously noted,
Daisy Rios, who had little if any poor experience in this field , was able to
set as many as 250 zippers
And Concepcion's low production may be due in part to
her admitted failure to follow her floorlady's work
instructions. To be sure, the record discloses that
Respondent retained other low producers," but it also
shows that Respondent discharged at least three other
employees with makeup records comparable to those of
the four alleged discriminatees14 and still others for whom
no production records were kept because they were let go
as untrainable after only a brief time on the job.35 And
since (with insignificant exceptions) there is nothing in the
record to show the union affiliation or nonaffiliation of
the retained poor producers, no pattern of discrimination
against Union employees with low production has been
demonstrated. Finally, while it may be, as General
Counsel and the Union suggested at the hearing, that the
alleged discriminatees' low output could in part be due to
factors such as machine breakdowns, job transfers, and
size of bundles worked on,36 it is clear that the extent to
which these factors operated to reduce production was
also reflected in the records of other employees who met
production and who received little or no makeups. There
is no showing, or even claim, that the four employees here
involved were given any different treatment in respect to
work distribution and machine assignments.
In reaching the conclusion herein that these discharges
were for cause. I have not overlooked circumstances
tending to show discriminatory motivation. To begin with,
the four employees were associates of the leading union
exponent (Rios) and were part of the group which
Respondent suspected of unionism. However, union
membership or suspicion of membership "does not
immunize conduct which would otherwise be grounds for
discharge." N.L R B v. Lowell Sun Publishing Company,
320 F.2d 835, 841 (C.A. 1). Furthermore, there is the
coincidence in time between union activity and the
discharges. But this, too, "without more is not
substantially indicative of a discriminatory motive "
Beaver Valley Canning Company v. N.L.R B., 332 F 2d
429, 433 (C.A. 8). The critical circumstance leading to the
discharge of the four employees - absent in the discharge
of Rios and the Alvarados - is that Respondent has
"Among these were Rinaldo whose earnings for the first 3 weeks
(February 2-16) ranged from $24 72 to $35 20 and makeups from $28 80 to
$49 48 , Stark , with earnings of $10 40 to $38.92 and makeups of $25 08 to
$29 01, and Velardita whose earnings were $22 98 to $28 04 and makeups
of $35 96 to $38 96 rodaro and Floorlady Bunza testified that because of
the shortage of operators in Buffalo , slow but trainable operators were
"sometimes" retained for awhile longer in the hope that they might show
improvement On the other hand, they testified that some hires were not
given more than a I- to 6-day trial periods when it became apparent that
they could never make suitable operators The uncontradicted evidence
establishes that there was indeed a large turnover of employees in the plant
and that Respondent has run help -wanted advertisements continuously, 6
days a week , since it began operations
"Bielwa whose makeups in her first 3 weeks of employment ranged from
$18.34 to $43 53, Bologna, with $34 41 to $36 51 makeups , and Kirkum,
with makeups of $24 11 to $35 26
"Employees Alaimo, Gonzalez , and Le Tempio
"As previously noted, employees on machine breakdown time were paid
at the minimum ($1 60) hourly rate Although employees were expected to
record time waited to repair the machine many who consistently failed
to make production apparently did not, since, as Todaro testified, "any girl
not making her time could care less" because she was assured of receiving
the minimum rate "whether she was standing around having her machine
fixed or not" Concepcion admitted that she did not lose "very much"
because of machine breakdown, and another employee (Swiatkowski)
recalled only one machine breakdown in 7 weeks The credible evidence
indicates , however, that it was more difficult to make production with
"small" bundles than with "large " ones, since the latter contained more of
the same style and entailed less time in tying and untying
RAMAR DRESS CORP.
demonstrated a valid and rational basis for its action,
thereby rebutting the prima facie showing of unlawful
motivation supported by other circumstances in the case.
In view of all of the foregoing, and despite the fact that
certain circumstances surrounding the discharges of
Bonilla, Suarez, Gauthier, and Concepcion may be
suspicious, I find that Respondent rebutted whatever
inferences of discrimination could otherwise reasonably
arise from such circumstances and from its other illegal
conduct. I conclude that the discharges of these four
employees were not violative of Section 8(a)(3) and (1) of
the Act.
E. The Employee Poll
1 The evidence
On March 1, during the 10 a.m. break, employee
Randazzo, assisted by employee Favata, polled the
employees concerning their union sentiments . Distributing
slips of paper, obtained from the office girl (Stevick), the
two employees asked the girls to mark the ballots "Yes"
if they favored, and "No" if they opposed, the Union "
When Randazzo approached employee Swiatkowski, the
latter remarked that the polling was "not legal."
Randazzo "got angry" and retorted that Company
President Todaro wanted to know how he "stood" with
the Union and accused Swiatkowski of "put[ting] up
Daisy [Rios] to go ahead and start the [Union] trouble."
Randazzo and Favata then took the box containing the
ballots to Todaro's office where the office girl (Stevick)
counted them. Favata, who was there when the counting
was over, announced to the employees that the Company
had won the election.J9 When Todaro returned to the
office after lunch the same day (March 1), Stevick
reported to him on the poll, exclaiming , "What do you
know, the girls had an election and we won." Todaro
telephoned his attorney who advised "Don't discuss it [the
poll] with anybody."°0
Later on the same day (March 1) Swiatkowski, upset at
her "argument" with Randazzo, told Floorlady Bunza
that she wanted to go home. Bunza asked her not to "feel
hurt" that Randazzo "accused [her] of starting things."
When Swiatkowski remarked, "I don't feel hurt so
easily," Bunza said , "[I]f you do so want a Union, - if
you people want a Union, why didn't you go to a shop
where there is a Union After all, why don't you give Sam
[Todaro] a chance to pickup, because he's a new owner.""
"The inference that the poll took place on March I is based on credited
testimony of witnesses on both sides to the effect that it occurred on the
morning that Todaro attended the preelection Board conference, which
concededly was on March I I do not credit Company witness Randazzo's
vague recollection that it took place in the week of February 19 or "a
week later," nor General Counsel witness Swiatkowski's equally uncertain
recollection that it "might have been around March 5th or 6th or shortly
after or before the election "
"Based on the credited , composite , and substantially mutually
corroborative testimony of employees Diaz and Swiatkowski to the extent
indicated Randazzo admitted that Swiatkowski said to her she "had no
business" polling the employees because there ultimately "would be a
posted sign when to take the [Board ] election "
"Stevick testified , " I don't remember the exact number, but we won
I'd say there was about 10 more girls that didn't want it [the Union] than
did "
"Based on credited testimony of Todaro and Stevick
"Based on Swiatkowski ' s credited testimony Respondent 's witness
Randazzo admitted hearing Bunza tell Swiatkowski that " if she wanted to
join a union , why doesn ' t she work in a union shop" Bunza 's testimony
that she "never" talked to Swiatkowski about the Union is incredible
2. Conclusion
327
I find, contrary to General Counsel's contention, that
the record does not support a finding that Respondent is
responsible for the conduct of the poll. There is no
evidence that employee Randazzo, who initiated the poll,
and Favata, who assisted her in conducting it, did so at
the request or suggestion of a company supervisor. Nor
can I draw any inference of condonation or ratification
from the mere fact that Respondent's secretary supplied
the employees the paper for ballots, and, at their request,
tallied the votes. These circumstances do not supply the
necessary link between the polling and management. Cf.
Stewart & Stevenson Services, Inc., 164 NLRB 741, 65
LRRM 1314, 1317; Southern Tours, Inc., 167 NLRB No.
42.
However, I find that Floorlady Bunza's post polling
statement to Swiatkowski to the effect that if Swiatkowski
and other employees wanted a union they should go to
work in a union shop constitutes an encroachment upon
or an interference with the right to self-organization.
Bunza's remark could reasonably be interpreted by
Swiatkowski that union employees were unwelcome in the
plant. It therefore operated to interfere with and coerce
employees in their unfettered exercise of their rights freely
to decide whether they wished representation by a labor
organization , in violation of Section 8(a)(1) of the Act.
III REPORT ON CHALLENGED BALLOTS
As indicated at the outset of this Decision, the
representation proceeding (Case 3-RC-4369) was
consolidated with the unfair labor practice case
(3-CA-3434) for the purpose of determining questions of
fact governing the right of the seven alleged
discriminatory dischargees to vote in the March 13
election. Also referred for consideration in this case is the
voting eligibility of five additional individuals (Santos
Giambra, Joseph Giambra, Michael Gennaci, Anthony
D'Alba, and Angelo Licata) challenged by the Union.
Insofar as the dischargees are concerned, it has been
found that Respondent discriminatorily discharged Daisy
Rios, Norie Alvarado, and Teonila Alvarado prior to the
voting eligibility date (February 23) and election (March
13). These three therefore were employees of Respondent
entitled to cast ballots. Since it has been found that
Respondent discharged the remaining four employees
(Bonilla, Suarez, Gauthier, and Concepcion) for cause
prior to February 23, it follows that they were not
employees of Respondent qualified to vote in the election
The record does not disclose the basis, if any, upon
which the Union challenged the five additional voters at
the election. At the hearing it contended that none of
them should be included in the appropriate unit02 -
Santos Giambra, Joseph Giambra, and Michael Gennaci
because they were "not regular employees" of Respondent
and, furthermore, because Santos was an "independent
contractor"; Anthony D'Alba because he was hired as a
"truckdriver" and his "interests were [not] allied with the
employees"; and Angelo Licata, because he was a
"supervisory or managerial employee or [has an] interest
contrary to general work in the unit " The findings and
conclusions respecting these individuals follow.
""All production and maintenance employees excluding all office clerical
employees, professional employees, guards and supervisors as defined in
the Act "
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A Santos Giambra
Santos Giambra worked as a garment cutter from the
beginning of December 1967 to around March 26, 1968,
at a $3 hourly rate." He was Respondent's sole cutter
until about 2 weeks before he left when he started to train
a new cutter (" Bernie") to help with Respondent's
increased production. While employed by Respondent,
Giambra worked as a full-time cutter for another dress
manufacturer (Rugby Knitting Mills) where he is still
employed. He would report to work at Ramar at 5.30
p.m. and there remain until completing the cutting work
around 9:30 or 10 p.m. He also worked 7 or 8 hours on
Saturday and from 8 a.m. to 1 p.m. on Sunday to cut
sufficient patterns to keep up with the production sewing
powerline on the first floor of the premises. Giambra
received his instructions directly from Company President
Todaro. However "[b]ecause the floorlady and cutter have
to work hand in hand," he would also consult with
Floorlady Bunza concerning the patterns of garments. As
is customary in the trade, Giambra used some personal
tools such as cutting knife, scissors , and clamps.
Giambra testified credibly that when he entered
Respondent's employ it was his "intention . . . to stay
there quite awhile . . . to accumulate a few thousand
dollars to put [his] son Joseph through college."" He
testified, however, that his expectations did not
materialize, having decided to quit when Todaro denied
his request for a salary increase and he then gave Todaro
1 week's notice. Even before this decision, it became
apparent that he could not alone handle the increased
cutting work because of his full-time day job at Rugby,
and he undertook to "teach" a new employee (Bernie) the
cutting operation. Giambra testified that he would have
remained to train this employee (who was to work
daytime) "if Mr. Todaro had met [his] requirements," i.e.,
the requested wage raise, and that "between all of us, we
could cut enough dresses to keep the factory going."
According to Giambra, he rejected Todaro's request that
he quit his day job to work full time at Respondent
because he liked his work at Rugby where he had worked
steadily for 10 years.d5
I find that Santos Giambra was a regular part-time
employee with reasonable expectancy of employment and
with interests common to the other part-time and full-time
employees and, therefore, includable in the appropriate
unit . Contrary to the Union' s suggestion , the record does
not support a finding that Giambra was an independent
contractor, since, so far as appears, Respondent retained
full and complete control over his work, an integral part
"Prior to December Giambra helped Company President Todaro set up
the cutting tables in the basement He learned of the job opening from
Leonard Capizzi , a company director and stockholder , whose father was a
friend of the Giambra family
"Giambra explained that he hoped to raise $ 10,000 in several years with
the assistance of his son Joseph who , as presently noted, also worked
part-time for Respondent Respondent ' s payroll records show that Santos
Giambra ' s weekly earnings ranged from $42 to $99 and Joseph's from
$19 20 to $37 50
"The findings in this section are based almost entirely on the credited
testimony of Santos Giambra, in part corroborated by his son Joseph and
by Todaro I credit and accept Santos Giambra ' s explanation that certain
answers inconsistent with his testimony , which appear in a questionnaire
submitted to him by General Counsel ' s representative while hospitalized
for a serious cardiac condition (he was often under sedation), were
incorrect Giambra's substantially uncontradicted testimony , which was
subject to cross-examination , is entitled to full weight I was highly
impressed with his testimonial demeanor and, despite his modest claim to
the contrary , he displayed a remarkable memory of the events
of its business . Cf. N L R.B v. United Insurance
Company, 390 U.S. 254.
The fact that Giambra worked "full-time" elsewhere
did not automatically relegate him to the category of
either an independent contractor or "casual" employee.
Economy Food Center, Inc., 142 NLRB 901, 910-911,
enfd. 333 F.2d 468 (C.A. 7). Nor did the fact shown infra,
that he trained and directed two part-time spreaders,
constitute him a supervisor. "[T]he Board has long
frowned on the view that a craftsman with one or two
helpers who makes the customary recommendations with
respect to them is a supervisor, stating that `to do
otherwise would be to attribute to Congress a result never
intended.' "Advance Envelope Manufacturing Company,
Inc., 170 NLRB No. 166.
I conclude that Santos Giambra should be included in
the bargaining unit. See Mark J. Gerry, Inc d/b/a Dove
Manufacturing Company, 128 NLRB 778, 779; Quality
Markets Inc, 160 NLRB 44, 51-52.
B. Joseph Giambra and Michael Gennaci
Joseph Giambra (Santos' son) and Michael Gennaci
worked as "spreaders" from early January until they quit
with Santos Giarnbra around March 26. They were high
school students, working part time and paid on an hourly
($1.50 or $1.60) basis. Dnving to work with Santos
Giambra, they would usually work with him from 5:30 to
9 or 9.30 p.m. on week nights and from 9 a.m to 5 p.m.
on Saturdays. As spreaders they worked closely with and
assisted Santos, laying out and preparing the cloth for the
cutting operation. In additon, they bundled the cut
material for production, helped unload trucks, and
performed odd jobs. It was Santos Giambra who initially
taught them the spreading operation and it was he who
directed them in this work. Santos would also give them
permission to leave early.
Joseph Giambra and Michael Gennaci were hired by
Todaro on Santos Giambra's suggestion. When Santos
told the boys that he was quitting because Todaro denied
his request for a wage raise, the boys also agreed to leave's
I conclude that Joseph Giambra and Michael Gennaci
were regular part-time employees included in the unit. See
Economy Food Center, Inc., supra; H W. Elson Bottling
Company, 155 NLRB 714, 724.
C. Anthony D'Alba
D'Alba was hired by Company President Todaro on
February 9 as a truckdriver and quit on March 29. He
never actually drove for Respondent, having merely
accompanied Leonard Capizzi (a company director and
stockholder who drove the truck) on two trips to deliver
finished dresses to a plant in Auburn, New York, assisting
him in loading and unloading the merchandise. These trips
were taken "at the beginning" of his employment in order
"to familiarize [himself] with the run and [his] duties."
"The credited testimony of Santos Giambra and Michael Gennaci.
Although Joseph Giarnbra indicated that he did not like the spreading
work and that he intended to quit when Respondent could hire a
replacement for his father , there is no evidence that this intention was
communicated to Respondent Furthermore, Santos Giambra 's testimony
that he intended to stay with Respondent for years until he and his son
saved enough money to put Joseph through college is corroborated by
Joseph's testimony that his father "was putting it [Joseph 's earnings] away
for college " Michael Gennaci testified that he had intended to remain
"indefinitely" with Respondent
RAMAR DRESS CORP. 329
Shortly thereafter, D'Alba was assigned to "odd jobs" in
the basement cutting room, including sweeping, cleaning,
moving equipment, and assisting in loading and unloading
the truck. He also tried to learn the cutting operation, but
gave this up as unsuitable for him Todaro was "the only
person" who gave him "instructions."
Under his hiring arrangement, D'Alba was to receive a
guaranteed $80 weekly wage, irrespective of hours worked,
although he was expected to put in 40 hours a week. In
practice, he worked those hours between 8 a.m. and 4:30
p.m , and normally punched a clock like other employees.
In middle of March, D'Alba's salary was increased to
$100 a week.
Dissatisfied with his "inside" job and disappointed at
Todaro's failure to assign him to "outside" truckdriving
for which he was originally hired, D'Alba quit on March
29. Although he had made up his mind to quit even before
the March 13 election, he did not communicate this
intention to Respondent.
I find and conclude that D'Alba was included in the
unit . Although hired to be or become a truckdnver, he
worked as a maintenance man, a category expressly within
the stipulated unit. Moreover, to exclude him from the
unit on the basis of a possible or eventual truckdriver
classification - the only employee that conceivably could
come within that category - would deprive him alone of
all representation. See H W. Elson Bottling Company,
155 NLRB 714, 725. The fact that D'Alba intended to
quit before the election is of no consequence since "[the]
test for determining eligibility is the individual's actual
status on the eligibility date and the election date "
Otarion Listener Corp , 124 NLRB 880, 881.
D. Angelo Licata
Todaro testified that he hired Licata at the beginning of
December 1967 to "help set up the equipment and to act
as a mechanic if I thought that he could handle the job."
Initially on a $2.50 hourly rate, he was soon put on a
weekly $100 and then $105 salary. Although Licata spent
the large bulk of his time as a maintenance man, repairing
and keeping the sewing machines in good order, he also
performed a variety of other tasks, including loading the
truck, carrying to and supplying the sewing operators with
cut material, and directing employees (whether on his own
or on instruction from Todaro is disputed) on matters
such as overtime work and movement of employees from
machine to machine or job to job. Licata's hours were
flexible, usually arriving between 7 and 7:30 a.m. and
leaving at 4.30 p.m. but sometimes staying late and also
working on Saturdays. He did not punch in as did
production employees and he was not paid extra for
overtime.
Licata is Floorlady Bunza's brother-in-law and also is
an uncle of Richard Del Regno ("Ricky"), an 18-year old
student and part-time worker, performing janitorial and
various services - among them assisting Licata in caring
for the machines and loading trucks. The credible evidence
establishes that Licata directed and oversaw Ricky's work 17
"I do not credit Licata's testimony that he had "no authority to tell
[Ricky] anything" and that when he requested Ricky to do a job, he was
merely transmitting Todaro's wishes, telling Ricky, "Sam Todaro wants
you to do this, do that" Employee Rios credibly testified that she heard
Licata "instruct" Ricky to sweep and do odd jobs such as painting clothing
racks Bunza herself, when asked if she had "seen or heard Mr Licata
direct anyone to do any work," answered, "No, except Ricky "
Norie and Teonila Alvarado credibly testified that
Licata had transferred them from job to job" and that he
directed them to work overtime."' Licata did not, however,
have authority to hire and fire employees Nor is there
substantial credible evidence that he had authority to
discipline them.50 The credible evidence establishes that
employees regarded Licata as a "boss" or managerial
representative. Thus, employees (including Rios, Diaz, and
Teonila Alvarado) testified that when Todaro was away,
Licata "used to take care of the shop" and "look after
things " He would stay in the office, sit at Todaro's desk,
answer the telephone, and talk to visitors and show them
around. Also, employees would "ask him for things and
he used to give them to [the employees]." Furthermore,
employees credibly testified that even when Todaro was
around they heard Licata tell Floorlady Bunza "what
work had to especially get out the next day" and that "the
girls had to stay overtime . . to finish up." Bunza, in
turn, would urge the employees "to hurry up, because the
dresses were going out that evening."
Based on all of the foregoing and the entire record, I
find that even if it is assumed that Licata was not a
supervisor strictly within the meaning of Section 2(11) of
the Act (i.e., that he possessed no "authority, in the
interest of the employer . . . responsibly to direct"
employees), he was at least a managerial representative
and, therefore, outside the appropriate unit . Cf. I A.M.
[Serrick Corp.] v. N.L.R.B, 311 U.S. 72, 80; N.L.R.B. v.
Mississippi Products, Inc., 213 F.2d 670, 672-673 (C.A.
5); Looney Sheet Metal Construction Co , Inc , 160
NLRB 1635, 1637. The fact that Respondent may not
have actually vested Licata with authority to act on
matters affecting the employer-employee relationship is
immaterial if, as Respondent did, it held Licata out to
employees as an agent or management spokeman. There
is no evidence whatever that Respondent had put the
employees on notice that Licata acted only as a conduit,
without authority to speak for it.
I conclude that Licata was not an employee qualified to
vote in the March 13 election ; and that Santos Giambra,
Joseph Giambra, Michael Gennaci, and Anthony D'Alba
were employees eligible to vote.
"None was corroborated by Rios There is no credible evidence that
Licata exercised similar authority over sewers who worked directly under
Floorlady Bunza, although it is clear that when a machine was being
repaired Licata would ask the sewer to move temporarily to another
machine None was a trimmer and Teonila a presser , not under Bunza's
direct supervision
"Licata admitted requesting employees to work overtime, but, as in the
case of other instructions to employees , insisted that he was merely
relaying messages from Todaro He did not claim, however, that he so
informed employees It is evident that throughout his testimony Licata
studiously strove to minimize his role and importance , and that he
frequently withheld facts which, he surmised , might prejudice his
employer's position in the litigation He disclaimed authority even as to so
routine a matter as ordering parts for machines he serviced , claiming that
"Mr Todaro tells me to order what parts I may need ," a matter difficult
to believe Furthermore, some of his testimony is vague, inconsistent, and
self-contradictory, as, for example , his testimony respecting his hours of
work , his carrying or supplying of cut material to girls, and his knowledge
of cutting operations in the basement I was not impressed with Licata's
testimonial demeanor
'"Although employee Swiatkowski testified that she heard Licata tell
employee Mendez (through Diaz who interpreted ) that "we won't be able
to keep her if she doesn't produce more work," Diaz' testimony
indicates that in this case Licata advised her that he spoke for Todaro In
his prehearing affidavit, Licata stated that "Todaro did not tell me to tell
[Mendez] this ," but in his testimony he claimed that he only acted as "a
good fellow" since he "wanted her [Mendez ] to avoid" being discharged
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
I By discharging Daisy Rios, Norie Alvarado, and
Teonila Alvarado, and thereafter failing or refusing to
reinstate them, in order to discourage Union activities,
Respondent has discriminated in regard to hire and tenure
of their employment, in violation of Section 8(a)(3) of the
Act.
2. By making a statement to an employee that if
employees desired Union representation they should
obtain employment in a union shop, Respondent intruded
upon, interfered with, and restrained employees in the
exercise of their Section 7 right to self-organization, in
violation of Section 8(a)(1).
3 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4 Respondent has not violated Section 8(a)(3) and (1)
of the Act by discharging and refusing to reinstate
employees Diana Bonilla, Rosa M. Concepcion, Maria
Gauthier, and Erohita Suarez; nor Section 8(a)(1) of the
Act by polling or questioning employees regarding their
union sympathies.
5 The following individuals had employee status on
both eligibility date and date of election (March 13, 1968)
and were qualified to vote with the employees included in
the appropriate unit Daisy Rios, Norie Alvarado, Teonila
Alvarado, Santos Giambra, Joseph Giambra, Michael
Gennaci, and Anthony D'Alba.
6. The following individuals were not employees eligible
to vote in the election. Diana Bonilla, Rosa M
Concepcion, Maria Gauthier, Erohita Suarez, and Angelo
Licata.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that it
cease and desist therefrom and take certain affirmative
actions designed to effectuate the policies of the Act.
The affirmative relief will also include the customary
provision that Respondent offer to the three employees
discriminated against (Daisy Rios, Norie Alvarado, and
Teonila Alvarado) immediate and full reinstatement to
their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges,
and to make them whole for any loss of earnings they
may have suffered by reason thereof, by payment to each
of them of a sum of money equal to that which each
normally would have earned as wages from the date of
such unlawful discharge to the date of Respondent's offer
to reinstate them, together with interest thereon, less net
earnings if any during such period, backpay and interest
to be computed in the manner prescribed in F. W
Woolworth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716.
Because the unfair labor practices committed are of a
character striking at the roots of employees' rights
safeguarded by the Act, it will also be recommended that
Respondent be required to cease and desist from
interfering in any manner with the rights of employees
guaranteed in Section 7 of the Act.51
"Since the Recommended Order is directed against the corporate
Respondent 's "officers" and "agents" as well as against the corporation, it
is unnecessary to specifically name Todaro, its president and one of four
directors who owns 20 percent of its stock However, since practically all
of the unfair labor practices found herein were committed by his conduct,
Todaro will be required to sign the notices to be posted
I am also recommending that the challenges to the
ballots of the five employees named in above paragraph 6
be upheld and their ballots not be counted; and that the
challenges to the ballots of the remaining seven employees
listed in above paragraph 5 be overruled and their ballots
opened and counted.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record, and
pursuant to Section 10(c) of the Act, I hereby make the
following.
RECOMMENDED ORDER
Ramar Dress Corp , of Buffalo , New York, its officers,
agents, successors , and assigns , shall:
I Cease and desist from.
(a) Discouraging membership and activities in
International Ladies' Garment Workers' Union,
AFL-CIO, by discriminating in regard to the hire and
tenure of employment of Respondent ' s employees or by
discriminating in any other manner in regard to any other
terms and conditions of their employment , in order to
discourage membership or activities therein.
(b) Indicating to employees that they should leave
Respondent ' s employ and seek employment elsewhere if
they desired union representation.
(c) Interfering in any other manner with, restraining, or
coercing any employee in the exercise of his right to
self-organization, to form , join, or assist any labor
organization , 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 which it is
found will effectuate the policies of the Act.
(a) Offer Daisy Rios, Teonila Alvarado, and Norte
Alvarado immediate and full reinstatement to their former
or substantially equivalent positions , without prejudice to
their seniority or other rights and privileges , and make
them whole for any loss of pay they may have suffered as
a result of their discharge , in the manner set forth in "The
Remedy" section herein.
(b) Notify the above-named employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended , after discharge
from the Armed Forces.
(c) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records,
timecards , personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its plant in Buffalo , New York, copies of
the attached notice marked " Appendix ." 52 Copies of said
notice, on forms provided by the Regional Director for
Region 3, after being duly signed by its authorized
representative, shall be posted by Respondent,
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter , in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
"In the event that this Recommended Order is adopted by the Board,
RAMAR DRESS CORP.
(e) Notify the Regional Director for Region 3, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
IT IS ALSO RECOMMENDED that the challenges in Case
3-RC-4369 to the ballots of Diana Bonilla, Rosa M.
Concepcion, Maria Gauthier, Erohita Suarez, and Angelo
Licata, be upheld; and that the challenges to the ballots of
Daisy Rios, Norie Alvarado, Teonila Alvarado, Santos
Giambra, Joseph Giambra, Michael Gennaci, and
Anthony D'Alba be overruled and their ballots opened
and counted.
IT IS FURTHER RECOMMENDED that Case 3-RC-4369 be
severed and referred to the Regional Director for Region
3 for appropriate disposition.
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"in the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES OF RAMAR DRESS CORP
THIS NOTICE IS POSTED PURSUANT TO A
RECOMMENDED ORDER OF A TRIAL EXAMINER OF THE
NATIONAL LABOR RELATIONS BOARD, AN AGENCY OF
THE UNITED STATES GOVERNMENT
After a trial at which all sides had the chance to give
evidence, it has been decided that we, Ramar Dress Corp.,
violated the National Labor Relations Act, as amended,
and we have been ordered to post this notice.
The National Labor Relations Act gives you, as an
employee, these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative of
your own choosing
331
To act together with other employees to bargain
collectively or for other mutual aid or protection,
and,
If you wish, not to do any of these things.
Accordingly, we give you these assurances:
WE WILL NOT do anything that interferes with any of
your rights listed above.
WE WILL NOT make any statements to the effect that
if you desire to be represented by a union, you should
seek employment elsewhere.
WE WILL NOT fire or take any reprisal against any of
you because you have joined or supported, support, or
will support the organizational campaign of
International Ladies' Garment Workers' Union,
AFL-CIO, or any other union.
WE WILL offer to give back their jobs, with full
seniority and all other rights and privileges, to
employees Daisy Rios, Norie Alvarado, and Teonila
Alvarado, who were found to have been discharged
because they supported the organizational campaign of
the above-named Union.
WE WILL also make up all pay these three employees
lost with 6 percent interest.
WE WILL notify them if presently serving in the
Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
All of you are free to join or not to join, support,
assist, or be active on behalf of International Ladies'
Garment Workers' Union, AFL-CIO, or any other union,
as you see fit, without any interference, restraint, or
coercion from us in any way, shape, or form.
RAMAR DRESS CORP.
(Employer)
Dated By Samuel Todaro
President and General Manager
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Fourth Floor,
The 120 Building, 120 Delaware Avenue, Buffalo, New
York 14202, Telephone 842-3100.