Colony Knitwear Corp.

National Labor Relations Board - Board Decisions

Apr 2, 1975

217 N.L.R.B. 245 (N.L.R.B. 1975)

COLONY KNITWEAR CORPORATION 245
Colony Knitwear Corporation andLocal 107, Interna-
tional Ladies ' Garment Workers' Union,
AFL-CIO and Local 918, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America , Party to the Contract. Cases
29-CA-3561 and 29-CA-3678 -
April 2, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On June 28, 1974, Administrative Law Judge
Thomas F. Maher issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions to the Decision and
briefs in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent they are consistent with the findings below.
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)(2) and (1) of the Act
when, in the face of the Garment Workers claim for
recognition, Respondent recognized and entered into a
contract with Teamsters Local 918 within a few days
after the Garment Workers made its demand.' How-
ever, we also agree with the General Counsel and the
Charging Party that Respondent directly assisted in the
securing of cards on behalf of Local 918, through its
agents and under circumstances clearly conveying to
the employees that it was the desire of Kaplan, Respon-
dent's president and chief managing official, that the
employees should be represented by Local 918. In so
finding, we agree with the General Counsel that Lead-
man Steve Schlyfestone acted as an agent of Respon-
dent in securing signed cards in support of Local 918.
The record is clear that Kaplan is the primary and sole
manager of the plant. However, the record is also clear
that Kaplan, both during his presence in the plant and
while away from the plant, conveys his directives to
Schlyfestone, who in turn relays these directives to the
employees of the leadman on the succeeding shift. The
record also shows that Schlyfestone frequently uses
employee Galvan as an interpreter to convey messages
to those Spanish-speaking employees who have dif-
ficulty with the English language. On September 6,
1973, Schlyfestone asked Galvan to sign a Local 918
I Midwest Piping & Supply Co., 63 NLRB 1060 (1945)
card. Galvan signed such a card and then later Galvan,
along with Schlyfestone, called employees Bogdanov
and Quiroga into the Respondent's office and discussed
with them the benefits that would result from represen-
tation by Local 918, and had each of them sign a Local
918 card. Employee Imbert, the leadman on the night
shift, was called into the office on September 7, and, in
the presence of Kaplan, Schlyfestone gave Imbert a
Local 918 card to sign. Imbert signed the card and at
Schlyfestone's direction Imbert called employee Sierra
into the office and had him sign a Local 918 card. From
the above, it is clear that Schlyfestone was acting on
behalf of Kaplan in securing Local 918 cards and that
most if not all of the Local 918 cards were procured by
coercion. Accordingly, we find that Respondent, acting
through its agents, violated Section 8(a)(2) and (1) of
the Act by coercively causing employees to sign mem-
bership cards for Local 918.
We also agree with the General Counsel and the
Charging Party that Respondent violated the Act when
it entered into its contract with Local 918 and enforced
the union-security clause therein. Local 918, as noted
above, did not at the time have an uncoerced majority
when it executed the contract with Respondent. Ac-
cordingly, we find that by entering into the contract
with Local 918 and enforcing the union-security clause
therein, the Respondent violated Section 8(a)(3) of the
Act.' In such circumstances, we further agree with
the General Counsel that Respondent's employees are
entitled to reimbursement from Respondent of all dues
and initiation fees collected pursuant to the unlawful
solicitation of membership in Local 918, and the en-
forcement of the unlawful union-security clause, and
will so order.3
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce
within the meaning of Section 2 (6) of the Act.
2 Raymond Buick, Inc, 173 NLRB 1292, 1308 (1968); Hi Temp Inc., 203
NLRB 753 (1973).
3 In view of the nature of the violations found herein, we agree with the
Administrative Law Judge's conclusion that under the unusual circum-
stances of this case the facts do not warrant the issuance of a bargaining
order As a consequence, the question of whether or not the Garment
Workers achieved majority status is not before us and we find it unnecessary
to pass on the Administrative Law Judge's conclusions with respect to the
validity of the authorization cards of employees Niccolini and Quiroga. In
addition, with regard to the Administrative Law Judge's recommendation
that the Niccolini and Quiroga matter be referred to the appropriate govern-
mental agencies, we have been administratively advised by the General
Counsel that shortly after the Administrative Law Judge issued his Decision
herein the matter was referred to the Social Security Administration for
consideration by that agency. In our opinion, no further action is necessary
or appropriate and we will consequently not act on the Administrative Law
Judge's recommendation in this matter. Our colleague correctly points out
that the evaluation of Quiroga's and Niccohm's cards presents difficulties,
and it is for this reason that we note that we do not unnecessarily undertake
the task here.
217 NLRB No. 38
246 DECISIONS OE NATIONAL LABOR RELATIONS BOARD
2. The Unions are labor organizations `within the
meaning of Section 2(5) of the Act.
3. By granting recognition to Local 918 as exclusive
bargaining agent at a time when the Garment Workers
had made a claim for representation based on a claim
of majority' status among Respondent's employees, Re-
spondent violated Section 8(a)(2) and (1) of the Act.
4. By coercively causing Respondent's employees to
sign membership cards on behalf of Local 918, Re-
spondent violated Section 8(a)(1) and (2) of the Act.
5. By entering into, maintaining , and enforcing a
collective-bargaining agreement containing a union-
security clause when Local 918 did not represent an
uncoerced majority of the employees in an appropriate
unit, Respondent violated Section 8(a)(3) and (1) of the
Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found and concluded that Respondent rend-
ered unlawful assistance and support to Teamsters Lo-
cal 918 thereby interfering with, restraining, and coerc-
ing its employees in the exercise of rights guaranteed
them by Section 7 of the Act, we shall order that Re-
spondent cease and desist therefrom. Affirmatively, we
shall order that Respondent withdraw and withhold
any recognition it had granted the aforesaid Teamsters
Local 918, including revocation of its collective-bar-
gaining agreement with said Union , unless and until
Teamsters Local 918 is certified as majority representa-
tive of Respondent's employees, pursuant to a Board-
conducted election in the unit found appropriate
herein, for purposes of collective bargaining. We shall
also order the Respondent to cease and desist from
coercively inducing its employees to sign membership
cards for Local 918 and we shall order Respondent to
reimburse all those employees of Respondent who
joined or began paying dues to Local 918 as a result of
the coercion in forcing them to join Local 918 and those
employees who joined or began paying dues to Local
918 as a result of the unlawful union-security clause for
all moneys paid by them or deducted from their earn-
ings for initiation fees, dues, assessments, or other obli-
gations of membership in Local 918 computed on the
basis as prescribed in F W. Woolworth Company, 90
NLRB 289 (1950), together with interest at the rate of
6 percent per annum as prescribed in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962). We shall also
order Respondent to post customary notices to em-
ployees.
In addition, although there has been no petition for
an election among the employees in the appropriate
unit, we shall order that in any election that may here-
after be petitioned for the Regional Director shall ac-
cept as a proper-showing of interest those membership
cards submitted herein by the Garment Workers in
support of its claim of representation status. At the
same time, and in the event Local 918 desires to partici-
pate in any election that might be directed herein, be-
cause of the taint on the membership cards of Local 918
due to Respondent's unlawful conduct, the Regional
Director shall not accept any showing-of-interest cards
on behalf of Local 918 unless said cards are signed and
dated at a time following Respondent's having fully
complied with the posting requirements of our Order
herein.
ORDER4
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, Colony Knit-
wear Corporation, Farmingdale, Long Island, New
York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively causing its employees to,sign member-
ship cards on behalf of Local 918, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America.
(b) Rendering aid, assistance, or support to Team-
sters Local 918, or any other Labor organization, by
recognizing it or bargaining with it as a representative
of Respondent's employees, unless or until it is certified
by the National Labor Relations Board as such repre-
sentative in the unit found appropriate herein.
-(c) Entering into, maintaining , and enforcing a col-
lective-bargaining agreement containing a union-
security clause when the labor organization does not
represent a majority of its employees in an appropriate
unit.
(d) In any like or related manner interfering with,
restraining, or coercing its, employees in the exercise of
rights guaranteed them by Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which we
find will effectuate the policies of the Act:
(a) Withdraw and withhold recognition of Local 918
as the bargaining representative of its employees in the
aforesaid appropriate unit, and revoke its collective-
bargaining agreement with said Union.
(b) Rehaburse employees in the aforesaid appropri-
ate unit who were coerced into joining said Union or
4 Nothing in this Order shall require Respondent to vary or abandon any
wage, hours, seniority, or other substantive feature on behalf of its em-
ployees which Respondent has established while bargaining with the afore-
said labor organization , or prejudice the assertion by its employees of any
rights they may have derived as a result of membership in or representation
by said labor organization
COLONY KNITWEAR CORPORATION
who became members of said Union or paid it any
money in accordance with the collective-bargaining
contract with Local 918, for all moneys paid by them
or deducted from their earnings for initiation fees, dues,
assessments , or other obligations of membership in said
Union, together with interest at the rate of 6 percent
per annum.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, timecards, personnel records and re-
ports, and all other records necessary to determine the
moneys due under the terms of this Decision.
(d) Post at its Farmingdale, Long Island, New York,
plant, copies of the attached notice marked
"Appendix. ,5 Copies of said notice, on forms pro-
vided by the Regional Director for Region 29, after
being duly signed by Respondent's representative, shall
be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices 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.
(e) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS ALSO ORDERED that in the event the Charging
Party desires to file a petition for an election in the
appropriate unit the Regional Director for Region 29
shall accept as a proper showing of interest those mem-
bership cards submitted herein by the Garment Work-
ers Union in support of its claim of representation
status.6
IT IS FURTHER ORDERED that in the event the Charging
Party does file a petition for an election in the appropri-
ate unit herein and Teamsters Local 918 desires to
appear on the ballot the Regional Director for Region
29 shall not accept any showing-of-interest cards on
behalf of Local 918, unless said cards are signed and
dated at a time following Respondent's having fully
complied with the posting requirements of our Order
herein.
5 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:'
6 As noted in fn. 3, supra, we found it unnecessary to pass on the Adminis-
trative Law Judge's conclusions with regard to the showing-of-interest cards
of Niccolim and Quiroga, and, in view of the fact that the Charging Party's
remaining cards are sufficient to support a showing of interest to support an
election, we again find it unnecessary to pass on these cards at this time
247
MEMBER KENNEDY, concurring:
I do not agree with my colleagues' observation in
footnote 3 that it is unnecessary to pass upon the con-
clusions of the Administrative Law Judge for rejecting
the authorization cards of Quiroga and Niccolini.
The Administrative Law Judge correctly observed:
I am hard pressed to understand the logic
of accepting the word-and the union
designations-of a man whose basic purpose un-
derlying the whole manipulation was admittedly
an attempt to defraud the Government by filing a
false unemployment insurance claim . I am ,not
persuaded that the fact that the claim was not
actually filed serves in any way to purify his initial
motives.
It is arguable that this man did sign this card, be
it by an "X" or by someone else's name, because
he did want this representative. But it ill behooves
public officials, myself included, to underwrite
this basic dishonesty inherent in the purposeful
misuse of names, or to tolerate resort to such
handiwork in the furtherance of the Board's pro-
cesses, as is urged here. On the contrary, it would
seem to be our duty to protect these processes
from such abuse. The two cards before us consti-
tute the evidence by which we are asked to believe
that Quiroga selected two different unions to
represent him in as many days. Because I deem his
admitted scheme of procuring unemployment in-
surance while gainfully employed to be the very
genesis of the cards, I refuse to become a party to
this deceit. I accordingly reaffirm my ruling to
reject the cards of Quiroga for all purposes.
What applies to Quiroga who admittedly con-
trived the scheme which Niccolini thereafter
obligingly adopted also applies to Niccolini him-
self. And for these obviously related reasons I re-
ject his authorization cards for all purposes as
well.
In my view, this Board should adopt the Administra-
tive Law Judge's conclusions . In my view, such cards
should not be counted in this or future cases. Accord-
ingly, I agree with the Administrative Law Judge's
rejection of those cards and his fmding that the Union
lacked majority status.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
collective-bargaining agreement with Teamsters
Local 918, for all moneys paid by them or de-
ducted-from their earnings for initiation fees, dues,
assessments , or other obligations of membership
in said Union, together with interest at the rate of
6 percent per annum.
COLONY KNITWEAR CORPORATION
The National Labor Relations Act gives all em-
ployees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other aid or protection
To refrain from any or all of these things.
WE WILL NOT coercively cause our employees to
sign membership cards on behalf of Local 918,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
WE WILL NOT recognize or deal with Teamsters
Local 918, as the representative of our employees
unless and until it has been certified as the exclu-
sive representative of our employees in the appro-
priate unit by the National Labor Relations
Board. The appropriate unit consists of:
All full-time and regular part-time employees at
our Farmingdale plant, exclusive of all clerical
employees, guards and all supervisors as defined
in the Act.
WE WILL 9OT enter into, maintain, or enforce a
collective-bargaining agreement containing a
union-security clause when the labor organization
does not represent a majority of our employees in
the appropriate bargaining unit.
WE WILL NOT vary -or abandon any wage, hours,
seniority, or other substantive features established
in behalf of our employees while bargaining with
Teamsters Local 918, nor will we deny our em-
ployees any right derived as a result of their mem-
bership in or representation by said labor organi-
zation.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce our employees in the
exercise of rights guaranteed them by Section 7 of
the Act.
WE WILL withdraw and withhold recognition of
Teamsters Local 918 as the bargaining representa-
tive and revoke our collective-bargaining agree-
ment with said Union.
WE WILL reimburse our employees in the appro-
priate unit who were coerced into joining said
Union or who became members of said Union or
paid said Union any money in accordance with the
DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER, Administrative Law Judge: Upon
charges filed on January 7, 1974, in Case 29-CA-3678 and
on September 24, 1973, in Case 29-CA-3561 with- an
amendement thereto filed on December 19, 1973, by Local
107, International Ladies' Garment Workers' Union,
AFL-CIO, herein referred to as the Garment Workers,
against Colony Knitwear Corporation, Respondent herein,
the Regional Director for Region 29 of the National Labor
Relations Board, hereincalled the Board , issued complaints
against the Respondent on December 19, 1973, and February
28, 1974, on behalf of the General Counsel of the Board,
alleging violations of Section 8(a)(1), (2), (3) and (5) of the
National Labor Relations Act, as amended (29 USC § 151,
et seq.), herein called the Act. In its duly filed answers the
Respondent, while admitting certain allegations of the com-
plaints, denied the commission of any unfair labor practice.
By order of March 6, 1974, the Regional Director con-
solidated the complaints herein.
Pursuant to notice a hearing was held before me in Brook-
lyn, New York, at which all parties were present, represented,
and afforded full opportunity to call , examine, and cross-
examine witnesses, present oral argument, and file briefs.
Briefs were filed by counsel for the General Counsel, Re-
spondent, and the Garment Workers on May 29, 1974. Upon
consideration of the entire record, including the briefs filed
with me, and the several documents introduced into the re-
cord, and upon my observation of the witnesses appearing
before me, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I THE NATURE OF THE RESPONDENT'S BUSINESS
Colony Knitwear Corporation, Respondent herein, is a
New York corporation maintaining its plant and principal
office in Farmingdale, Long Island, New York, where it is
engaged in the manufacture and distribution of knitted fab-
rics and related products. During the year preceding the date
of the trial herein the Respondent, in the course and conduct
of its business operations, caused to be manufactured and
distributed at its plant knitted fabrics valued in excess of
$50,000, of which products valued in excess of $50,000 were
furnished to firms located in New York State which did
business in excess of $50;000 with customers located outside
the State of New York.
Upon the foregoing facts stipulated by the parties I con-
clude and find the Respondent to be an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
COLONY KNITWEAR CORPORATION 249
II THE LABOR ORGANIZATIONS INVOLVED
It is stipulated by the parties that Local 107, International
Ladies' Garment Workers' Union, AFL-CIO, and Local
918, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Sequence of Events
Impelled by the efforts of Employees Jaime Perez a number
of Respondent's employees, all knitters, signed cards in late
August and early September 1973 authorizing the Garment
Workers to represent them in collective -bargaining negotia-
tions with the Respondent. To this end Organizer Gaspar
Sciacca, accompanied by Business Agent John DiGirolamo,
visited Respondent's plant on the morning of September 6,
1973, and met with Respondent's president, Robert A. Ka-
plan. After appropriate introductions, Sciacca informed Ka-
plan that the Garment Workers represented a majority of his
employees and was ready to sit down and negotiate a con-
tract. When Kaplan expressed surprise and his lack of knowl-
edge in union matters Sciacca suggested that he might want
to contact his lawyer. On this note the Garment Workers
representatives left the plant, Sciacca stating that they would
be in touch and leaving his card.
There is dispute in the record as to whether on this visit
Sciacca mentioned possessing signed authorization cards and
having them checked by a disinterested third party. Any
confusion on this point is dispelled by the telegram admit-
tedly sent Respondent by the Garment Workers and recieved
on the following day (September 7), wherein the demand for
recognition and bargaining was confirmed and the Union
stated that "we are prepared to prove our majority status."
Immediately following the Garment Workers visit Presi-
dent Kaplan called his father-in-law and partner, a Mr.
Karol, and told him he -had had a visit from two union
representatives. Karol asked Kaplan if they had shown him
anything or asked for anything and Kaplan replied that they
had not. Karol closed the conversation by stating, "Okay,
leave it to me." On the following evening, September 7,
Sciacca of the Garment Workers learned that some of the
employees had signed papers "with the horse on it," referring
to Teamsters' authorization cards bearing the printed seal of
the International organization. This, of course, comports
with the testimony of President Kaplan who testified to a visit
from John Barresi, a representative of Local 918 of the Team-
sters, sometime shortly before September 13.1 Barresi told
Kaplan that the Teamsters represented Respondent's em-
ployees and showed to Kaplan a group of authorization cards
signed by them. Kaplan took the cards proffered to him by
Barresi and checked the signatures against cancelled pay-
checks. Kaplan then called his partner, Karol, and, told him
that a representative of the Teamsters was in his office and
had presented him with cards. Karol announced that he
would come to Respondent's office immediately. When he
1 This date has not been definitely established but it had to occur prior
to September 13, the date on which Sciacca returned to the plant and
learned of the Teamsters visit. Theretofore, apparently, he had learned only
that the employees had signed Teamster cards
arrived he checked over the cards himself and asked and
received Kaplan's assurance that they were "correct and au-
thentic." On the basis of this inspection, according to Kaplan,
"we agreed at that time to recognize this Union." Whereupon
Barresi presented Kapland and Karol with a typed memoran-
dum of agreement. The three of them discussed the memo-
randum 's contents in some detail and made corrections and
additions but did not sign it until September 21.
Meanwhile on September 13, Sciacca and DiGirolamo of
the Garment Workers paid a second visit to Respondent's
plant seeking to follow up their, earlier request for recogni-
tion, "to find out if Kaplan had decided on sitting down with
the Union." Upon meeting Kaplan he told the Garment
Workers representatives that he had "signed a letter recogniz-
ing the Teamsters." Whereupon, after a few salty words,
Sciacca and DiGirolamo left, stating, "You will be hearing
from us."
Thereafter, on September 25, 1973, Respondent, Karol
signing, executed a contract with the Teamsters which in-
cluded among its terms a provision for the checkoff and
remittance of union dues and initiation fees and a union shop,
provision requiring continued membership in the Teamsters
of Respondent's employees following their hire or the execu-
tion of the contract, whichever would be applicable.
The union-security and checkoff provisions of the contract
have been enforced throughout the term of the contract, to
and through the date of the hearing herein, excepting only
that upon receipt of the complaint in this matter Respondent
notified the Teamsters that it no longer would remit moneys
under the terms of the contract but would make the required
collections and retain the moneys in an escrow account.
Subsequent to the events detailed above Employee Jaime
Perez, the prime mover in the Garment Workers organizing
campaign, for which he received $300 in compensation, and
thereafter the designated shop steward of the Teamsters for
which he accepted a $10 payment, was laid off and was
thereafter refused reinstatement. This occurred under cir-
cumstances which the General Counsel considers discrimina-
tory and of such an aggravated nature as to justify the issu-
ance of a bargaining order on behalf of the Garment Workers
against the Respondent. For reasons which I shall set forth
in detail hereafter, I have found that Perez was discharged for
cause.
B. Credibility Evaluation
The major conclusions in this case will hinge directly upon
credibility determinations relating to the testimony of a num-
ber of witnesses appearing before me and upon the weight
that I place upon certain of the documents introduced into
evidence.
In an effort to establish the majority representative status
of the Garment Workers as of September 6, 1973, the date
upon which Gaspar Sciacca made his recognition demand in
its behalf, counsel for the General Counsel offered in evidence
two signed authorization cards of questionable authenticity.
These were identified in the record as General Counsel's
Exhibits 2(f) and (g), being the Garment Workers authoriza-
tion cards of Armando Quiroga and Miguel Angel Niccolini,
respectively. Thereafter, in support of the allegation that Re-
spondent unlawfully assisted the Teamsters counsel intro-
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duced Teamsters authorization cards signed by the same in-
dividuals. These were identified as General Counsel's
Exhibits 3(f) and (g)_ The complicating factor concerning
each of these cards is that the names and signatures on each
card are interchanged even as they were interchanged on
Respondent's payroll. Thus Quiroga was known as, identified
himself as, and signed his authorization card as Miguel Angel
Niccolini; and Niccolini did likewise under the name of Ar-
mando Quiroga. When asked at the trial for explanation of
this unusual behavior Quiroga testified that when or immedi-
ately before he signed the Garment Workers authorization
card the was also working for another employer, Robert
Todd,' and expected a layoff there. Hoping to collect unem-
ployment insurance _for this layoffwhile working at his new
job with Respondent, Quiroga used Niccolim 's social security
number and.signed his name. It appears, as things turned out,
that he did not collect the unemployment insurance because
his Richard Todd job resumed or continued, and for a period
he held two jobs.
Next, Niccolini's Garment Workers card dated September
10, and signed with the name Armando Quiroga, bears Nic-
colini's correct address but the incorrect age and , of course,
the wrong name. Niccolini explains that, knowing of his fel-
low worker Quiroga's unemployment insurance ploy at
Todd, he indulged in this manipulation to accommodate him,
and when he came to Respondent's plant where Quiroga was
already at work under Niccolini' s name, Niccolini main-
tained the fiction and continued to use Quiroga's name. The
two of them continued the misrepresentation when they
thereafter signed Teamster authorization cards.
In the course of Niccolini's testimony the pretrial affidavits
signed and sworn to by him were referred to and eventually
admitted into evidence. His first affidavit, given to a Board
agent on October 19, 1973, was signed with the name Ar-
mando Quiroga and appears in the record as ALJ Exhibit 1.
The second affidavit was given to the same Board agent on
November 8, 1973, and it too bears the signature of Armando
Quiroga. It appears in the record as ALJ Exhibit 2. Nic-
colini's third affidavit, which bears his true name and signa-
ture, was given to counsel for General Counsel on April 4,
1974. This contained Niccolini's admission of his earlier
misuse of Quiroga's name and signature on the four cards and
two previous sworn statements and provides an explanation
of the reasons for doing so, as I have set it forth above. In
summary total, therefore, it appears that that we are con-
fronted with six misrepresentations: four as to authorization
cards and two as to sworn affidavits.
At the trial, during the course of Niccolini's explanation,
I entered the following findings upon the record:
My decision will show by footnote or otherwise that I do
not rely and will not rely on the testimony of this witness
in any form nor will I consider his card for any purposes
of tabulation of majority status.
When asked by counsel for the Teamsters if this finding
would reach to Mr. Quiroga also, I replied, "Yes, it does."
I now reaffirm these rulings as to the cards and the testimony
of Niccolini and Quiroga.
2 Quiroga signed his card on September 5 He testified he commenced
work with Respondent at the end of August or the beginning of September
I am mindful, of course, of the holding of the United States
Court of Appeals for the Second Circuit in N.L.R.B. v. Uni-
versal Camera Corporation,3 wherein it was held that it is
not uncommon "to believe some and not all" of a witness'
testimony. I am equally mindful of the vigorous argument
presented me by both counsel for the General Counsel and for
the Garment Workers in their respective briefs, urging that
I reconsider the credibility resolution which I made at the
trial, and that I give credence to the witness' testimony as to
the cards, and accept the-cards themselves. Thus it is urged
that the individual employee, by his own admission, signified
his intent to be represented by means of the card he submit-
ted, regardless of the name he used, and so "it is the man, not
the name which should be the controlling factor." Addition-
ally, it is urged by counsel for the Garment Workers, refer-
ring to an evidentiary conflict between Quiroga's testimony
and a statement in one of his affidavits, as follows:
The Judge should conclude that Quiroga made an
honest mistake in his affidavit which is corrected on the
stand. A close reading of Quiroga's affidavit will show
that that was the only statement (the disputed inconsist-
ent one) which was inconsistent with his testimony.
Quuiroga admitted that he worked under Niccolini's
name because he planned to collect unemployment in-
surance benefits from his former job at the time he
worked for Colony. He never collected those benefits,
however, according to both his testimony and his affida-
vit. That fact is not disputed.
Except for working under Niccolini' s name, Quiroga
did nothing improper or unlawful. In light of the facts
and arguments adduced here, his testimony should be
credited and his card counted towards the Captional
ILGUW proof of majority.
I am hard pressed to understand the logic of accepting the
work-and the union designations-of a man whose basic
purpose underlying the whole manipulation was admittedly
an attempt to defraud the government by filing a false unem-
ployment insurance claim. I am not persuaded that the fact
that the claim was not actually filed serves in any way to
purify his initial motives.
It is arguable that this man did sign this card, be it by an
"X"' or by someone else's name, because he did want this
representative.-But it ill behooves public officials, myself in-
cluded, to underwrite this basic dishonesty inherent in the
purposeful misuse of names, or to tolerate resort to such
handiwork in the furtherance of the Board' s processes, as is
urged here. On the contrary, it would seem to be our duty to
protect these processes from such abuse. The two cards before
us constitute the evidence by which we are asked to believe
that Quiroga selected two different unions to represent hire
in as many days. Because I deem his admitted scheme of
procuring unemployment insurance while gainfully em-
ployed to be the very genesis of the cards, I refuse to become
a party to this deceit. I accordingly reaffirm my ruling to
reject the cards of Quiroga for all purposes.
3 179 F 2d 749, 754.
COLONY KNITWEAR CORPORATION
What applies to Quiroga who admittedly contrived the
scheme which Niccolini thereafter obligingly adopted also
applies to Niccolini himself. And for these obviously related
reasons I reject his authorization cards for all purposes as
well.
Finally we come to Niccolini's affidavits. I am not per-
suaded that simply because Niccolini, in his April 10 affidavit
taken by counsel for the General Counsel, made full breast
of his misrepresentations on the cards and on his two sworn
affidavits signed as "Armando Quiroga," he thereby ex-
onerated himself. Nor am I persuaded that simply by swear-
ing in his third and properly signed affidavit that the facts
supplied in his two falsely signed affidavits are true he is
thereby fortified in truth and worthy of belief. On the con-
trary, Niccolini' s willingness to sign the first two affidavits as
he did underscores, in my judgment, a propensity to trifle
with the truth which he first manifested when he accom-
modated Quiroga's efforts to fraudulently obtain social-
security payments. It is on the basis of the foregoing, in
addition to my observation of both Quiroga and Niccolim on
the witness stand, that I have reaffirmed my conclusion not
to credit the testimony of either, nor to accept their improp-
erly signed authorization cards, nor their testimonial expla-
nations of why they did it, as evidence of their intent to
authorize their representation by either of the unions whose
cards they signed.
Employee Jaime Perez presents a further credibility prob-
lem that is determinative of the issues involved herein.
A study of Perez' testimony discloses numerous contradic-
tions with his own previous testimony and the testimony of
other witnesses called by the General Counsel. Illustrative of
this is his testimony that during a 3-week period an employee
alleged to be a supervisor, Steve Schlyfestone, ate lunch in the
office with the secretary "most of the time." Upon cross-
examination Perez, hesitantly and obviously agitated, admit-
ted that this occurred "about three times that I remember,"
and finally stated "I don't remember how many times."4
Garment Workers Representative Sciacca testified that he
obtained copies of Teamsters authorization cards signed by
Respondent's employees from Jaime Perez, who had told him
he had taken these cards from a desk in Respondent's office
to bring to him. I credit this testimony. Perez, on the other
hand, testified that he never went into the office and took
anything, that he' never came into possession of Teamster
cards, and that he never gave Teamster cards to Sciacca.
Additionally, Perez testified that he never talked to other
witnesses about the case during the course of the trial, all
witnesses excepting Perez, an alleged discriminatee, having
been excluded from the hearing room pursuant to a ruling
sequestering witnesses. Upon cross-examination Perez admit-
ted that'he had discussed items of testimony with these peo-
ple.
For all of the foregoing, being illustrative of what I con-
sider a relaxed approach to matters of truth and falsity, and
upon my observation of Perez' demeanor as he testified, and
4 Counsel for the General Counsel's brief, at p. 5, states the following
"While the knitters have no lunch period and have to eat at their machines
while working, Schlyfestone often eats in the office with the secretary." In
the light of Perez' own confused testimony, including his failure to recall
more than three such occasions, I must rejeci counsel's statement to me as
unsupported.
251
as he sat in the hearing room throughout the trial, I find him
to be an unreliable witness and will credit his testimony only
as it is corroborated by credible witnesses or constitutes an
admission against interest.
In addition to my determination of the credibility of the
foregoing three witnesses I am persuaded that other witnesses
appearing in behalf of General Counsel took an equally am-
bivalent approach to the truth. These I shall comment upon
as they significantly relate to findings that I make. With
respect to such testimony as well as to my findings relating
to Perez, Niccolini alias Quiroga, and Quiroga alias Nic-
colini, I have, as already noted, relied upon the demeanor of
the respective witnesses and have made my findings accord-
ingly. And, apart from considerations of demeanor I have
taken into account, as illustrated herein, inconsistencies and
conflicts evidence. My failure to detail each of these is not to
be deemed a failure on my part to have, fully considered
it.,
C. The Unit Appropriate for Bargaining
In his brief to me counsel for the General Counsel reasserts
the allegation of the complaint that the unit appropriate for
the purposes of collective bargaining is all full-time and regu-
lar part-time employees of Respondent at its Farmingdale
plant, exclusive of all clerical employees, guards, and all
supervisors as defined in the Act. In the absence of argument
and evidence to the contrary, I conclude and find the unit to
be appropriate as alleged.
1. Composition of the unit
The parties appear to be in general accord as to the compo-
sition of the unit. Thus there is no dispute that Carol Altoltz,
listed on Respondent's payroll as secretary, would be prop-
erly excluded, and that Jose Aguilar, Jose Fuentes, and David
Christ, all Sunday workers employed as of September 6, be
properly included as regular part-time employees. It is con-
tended, however, that Employees Steve Schlyfestone, the
leadman on the 8 a.m. to 4 p.m. shift, possesses supervisory
authority and should be excluded from the unit for that rea-
son and Respondent be charged with responsibility for con-
duct attributed to him as its agent.
2. Supervisory status
Respondent operates 16 knitting machines on 3 shifts: 8 to
4, 4 to midnight, midnight to 8. Four employees are assigned
to each of these shifts and included in each group of four is
a leadman. On the day shift this is employee Steve Schlyfe-
stone; during the significant periods herein the leadman on
the evening shift was employee Eber Rodrigues, who upon his
quitting was replaced by employee Buitargo; and on the mid-
night shift it was employee Luis Imbert. Each of these em-
ployees punched timecards. As to September 6, their rates of
pay differed. Rodrigues and Schlyfestone received $4.50 per
hour and Imbert $4 per hour. Rodrigues terminated his em-
ployment shortly thereafter, Schlyfestone received a 25-cent
raise under the Teamsters contract. The record is silent as to
5 Bishop and Malco, Inc., d/b/a Walker's, 159 NLRB 1159, 1161 (1966).
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Imbert's current wages. All three leadmen, including Schlyfe-
stone, run their own machines in addition to performing
other duties on their respective shifts.' While the operation
of the machines was in great measure automatic there was
frequent need for repairs, and when a new fabric was run
changes were made in the yarns being used. It is generally
agreed that Schlyfestone was responsible for machine repair
on his shift, as was Rodrigues on his.' There is no testimony
concerning Imbert's fixing the machinery.
None of the leadmen admit to giving orders except as to
the routine operational ones involving the changing of yarn;
and this change emanates from President Kaplan. But what
did occur was that the leadman on each shift received neces-
sary instructions for the running of the machines and the
operations of the shift and the yarns to be used from the
leadman on the previous shift. This system of relays began,
of course, with President Kaplan who was present on the day
shift and who gave the necessary instruction to Schlyfestone
to carry out and to pass on in turn to the leadmen of the
following shifts.' Each of the three, Schlyfestone, Imbert,
and Rodrigues, in fact considered themselves in charge of
their respective shifts and testified to having been so advised
by Kaplan. None of them, however, conveyed any orders
excepting the routine ones referred to above which involved
the running and changing of yarns or the relaying of such
other instructions to employees as directed by Kaplan. In this
respect it is particularly significant that many of the em-
ployees called as witnesses by the General Counsel testified
that they were not given orders by Schlyfestone, or the other
leadmen, but only by Kaplan.'
Quite apart from the findings I- have made to this point
concerning leadman, the essence of the problem is the alleged
peculiar position of Steve Schlyfestone whom General Coun-
sel and the Garment Workers claim to possess supervisory
authority, as an adjunct to their legal theory that Respondent,
through Schlyfestone, indulged in conduct alleged to be viola-
tive of the Act.
Significantly, no claim is made that the leadman on either
the evening or midnight shift should be excluded from the
bargaining unit-only Schlyfestone. It remains to be deter-
mined, therefore, how Steve Schlyfestone's duties differ, if
they do, from those of the other two.
Upon the credited testimony of President Kaplan it is evi-
dent that Schlyfestone has no authority to either hire or fire.
Thus the only instance alleged to have been a
hiring-Montoya-is one where Schlyfestone was introduced
to a potentially good knitter, told Kaplan about him over the
telephone at the time of the introduction, and put him to
work for the two remaining hours of the shift, at Kaplan's
direction. On the following morning Kaplan hired the
man.10 Nowhere does it appear in the record that Schlyfe-
6 The credited testimony of Employee David Galvan and President Ka-
plan.
7 The credited testimony of employees Ruben Bogdanov and Rodrigues.
8 The testimony of President Kaplan and employees Schlyfestone, Ro-
drigues, Imbert, and Sierra
9 Employees David Galvan, Ignazio, Montoya, and Ricardo Romero
10 1 do not credit Montoya's testimony that he was not hired by Kaplan.
Furthermore, the best testimony this witness could otherwise supply on
Schlyfestone 's status is that "he thought" he was in charge. And even when
he did go to Schlyfestone following his hiring for the usual directions on the
stone, or any other leadman, was responsible for the dis-
charge of an employee." What the leadmen did do, how-
ever, according to Employee Rodrigues' evaluation of his
own responsibilities, was to point out to Kaplan, at his re-
quest, the workers who were doing the work correctly and
those who were not. Thus he stated that, "if I watched, took
care of the second shift, it would be logical to communicate
to him who was a good worker and who wasn't." And he did
so.
Specifically in support of his claim respecting Schlyfes-
tone's status counsel for the General Counsel set forth a
number, of factors. A consideration of these follows:
That employees had been told by Kaplan that Schlyfestone
was "in charge" is based upon testimony to that effect by
Perez. As I do not credit Perez, I reject such conclusions as
are based thereon.
Reliance upon employee Rodrigues' testimony that
Schlyfestone told him he had practically all of the responsibil-
ity inside the factory appears from a study of the record to
be an exaggeration and taken out of context. Thus when
Rodrigues was asked whether Kaplan (not Schlyfestone) had
told him that Schlyfestone was in charge of the first shift all
the time or only when Kaplan was absent, his reply was "No
I think Steve was in charge all the time on the first shift, like
I was on the second shift, like Imbert on the third."
Employees Montoya and Perez are relied upon for the
conclusion that Schlyfestone walks around the shop and
checks work and machines every day on the day shift. Aside
from the fact that Schlyfestone is charged with fixing ma-
chines and should be checking them, Montoya testified exten-
sively that Kaplan never checked anything in the shop, never
assigned work, and in fact did nothing. Thus he would imply
that Schlyfestone does this in his place. But the testimony of
the bulk of General Counsel's witnesses is to the contrary,
and to the effect that Kaplan is very much in evidence about
the plant during the day shift and that he gives them orders.
In any event I accept the credited testimony of Kaplan that
he is in full charge of the operation and acts accordingly.- I
do not rely upon Perez' testimony, nor, in this respect, Mon-
toya's.
As to the giving of instructions relating to what jobs to run,
what color and style of yarn to use on the machines, when to
change yarn, and other instructions given by Schlyfestone,
General Counsel's claim that he gives these on his own or
regularly relays them as orders from Kaplan appears to over-
look the fact that the leadman on the other shifts do exactly
the same, by their own testimony and that of other witnesses
called by General Counsel.
There are countless other duties and activities attributed to
Schlyfestone which have been categorized by counsel for the
General Counsel as evidence of his superivsory position and
agency. These are clearly the variety considered by the Board
as the duties of a leadman-the passing out of materials,
shutting down and starting machines, ordering supplies on a
regular basis in small quantity, with overall management
changing of yarn, for example, he noted that Schlyfestone always consulted
Kaplan.
11 The testimony of President Kaplan and employees Schlyfestone and
Rodrigues is to the contrary
COLONY KNITWEAR CORPORATION
approval,12 relaying requests for time off, on direction,
relaying instruction of the boss in his absence, and,acting as
a conduit for operational problems of individual employees.
None of these, either individually or in bulk, impress me as
the mark of a supervisor, and I find no authority to support
a conclusion that the}-have been considered such elsewhere.
Two elements of testimony give rise to the need for more
consideration of this issue than the foregoing. One is Schlyfe-
stone's position when Kaplan is on vacation, and the other
is his alleged close association with Kaplan.
With respect to the latter consideration we have no way of
knowing how closely Kaplan would have associated with
either Rodrigues or Imbert if Kaplan's hours of work coin-
cided with either of these leadmen's hours. Moreover, quite
apart from Kaplan's and Schlyfestone's credible denial of
close affinity, the record is clear that Schlyfestone has the
greatest seniority of all the employees, having started when
the plant opened, and that he initially obtained his job as a
result of some undescribed referral to Karol, one of the part-
ners of the business. In any event, I know of no case that
stands for the proposition that seniority or the manner of
hiring is determinative either of agency or supervisory au-
thority.
As to the claim that Schlyfestone is "in charge" when
Kaplan is on vacation the credited testimony of Schlyfestone
is clear . Kaplan took a week of vacation in January 1972, and
3 days in Christmas week 1973, for a total of 8 days. In the
latter period Schlyfestone was in charge of his shift, Galvan
was in charge of the second shift, Rodrigues having left Re-
spondent's employ, and Imbert was in charge of the third
shift. Schlyfestone was, in fact, in charge of the plant opera
tion during this 3-day period, and explained it thus: "I was
told that before he left. By Mr. Kaplan." No payroll checks
were issued during either of Kaplan' s absence and Schlyfe-
stone had no knowledge of other checks being issued by
anyone.
It defies logic and commonsense to expect that someone
would not be in charge of a going operation in the absence
of a supervisor. But to conclude as an absolute, however, that
such a substitute automatically becomes a supervisor would
appear to stretch beyond its outer limit the doctrine of the
regular exercise of right to control set forth by the United
States Court of Appeals for the Sixth Circuit in Ohio Power
Company v. N.L.R.B., 176 F.2d 385. Such appears to have
been the view of the Supreme Court when, in Marine Engi-
neers Beneficial Association v. Interlake Steamship Co., 370
U.S. 174 at 179, fn. 6, it cited with approval the following
quotation from a decision of the First Circuit:
... the gradations of authority "responsible to direct"
the work of others from that of general manager or other
top executives to "straw boss" are so infinite and subtle
that of necessity a large measure of informed discretion
is involved in the exercise by Board of its primary func-
tion to determine those who as a practical matter fall
within the statutory definition of "supervisor ." N.L.R.B.
v. Swift & Co. [d1b/a New England Processing Unit], 292
12 It would seem that the fact that Schlyfestone is the leadman on the day
shift and is available for the regular visit of the supply salesmen, while the
two on the late shifts are not, would make his handling of this detail an
obvious assignment not necessarily attached supervisory status.
253
F.2d 561, 563 [1961].
I accordingly conclude and find that Schlyfestone, by his
assigned duties during the 8 days of Kaplan's absence over a
period of over 2 years, does not "as a practical matter fall
within the statutory definition of `supervisor."' -
With respect to the sum total of all of Schlyfestone's duties
as considered herein I conclude and find that he is neither an
agent of Respondent nor a supervisor within the meaning of
the Act. By the same token I conclude and find that neither
of the remaining two shift leadmen are supervisors. Accord-
ingly, I would further conclude and find that ajf three lead-
men, including Schlyfestone, be included as employees in the
unit appropriate for collective bargaining.
D. The Alleged Discrimination, Interference, Restraint, and
Coercion
1. The warning of Perez
It is alleged in the complaint that on or about December
10, 1973, Respondent, by President Kaplan, warned and di-
rected its employees not to discuss the Union during their
time in the plant. In support of this allegation counsel for the
General Counsel adduced testimony from Employee Jaime
Perez that President Kaplan called him to the office on
December 12, and told him that if he continued to talk to the
employees about the Union he would have to fire him. He
quotes Kaplan as telling him he was disrupting employees'
work.
Kaplan's version of the incident differs considerably. Thus
he testified that on the day in question Perez walked into the
factory on the shift immediately preceding his own, wearing
a Garment Workers button, 2 inches in diameter, on his shirt.
By this period of time, it should be particularly noted, Re-
spondent had recognized and negotiated a contract with the
Teamsters, and all of its employees, including Perez, were
members of the Teamsters pursuant to the contract's unit-
security provision. According to Kaplan the employees on
this shift stopped their work when Perez came in and came
over to him and began talking with him. Kaplan then called
Perez into the office and told him he wanted 8 hours of work
from him and that he should not disrupt the work of em-
ployees. He did not discuss the union situation with Perez nor
did he tell Perez not to talk about the Union.
In his original account of this incident Perez did not in-
clude the button episode. On rebuttal, however, he admitted
to having worn it, but stated that no one left his machine to
come talk to him until employee Imbertcame over to him
some time after he had arrived.
As previously concluded, I do not credit the testimony of
employee Perez. On the contrary, I accept Kaplan's version
as set forth above and find nothing in it that would constitute
employee interference, restraint, or coercion. I will, therefore,
recommend that so much of the complaint as alleges this
incident to be a violation of the Act be dismissed.
2. Perez' discharge
During the period encompassed by this proceeding two
layoffs occurred at Respondent's plant, both of them for
reasons of economic necessity. The first occurred over the
Thanksgiving weekend 1973, and the employees were called
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
back on December 5; the second occurred on December 13.
It is not disputed that both layoffs were effected in order of
seniority. In the November layoff all the employees were laid,
off except Schlyfestone, Imbert, and Buitargo, the. three
leadmen.13 In the December 13 layoff Respondent laid off
Perez, Romero, Montoya, Gonzalez, Sierra, and Niccolini
(known to Respondent as Quiroga). By the first week of
January these employees, with the exception of Perez, had
been recalled. Some of them did not return, having found jobs
elsewhere. Thereafter, several replacements were hired. Perez
was not recalled.
When questioned at the trial concerning Perez' status Ka-
plan conceded that shortly after the first of the year his layoff
culminated in a discharge. Kaplan's credited explanation of
the series of events leading to the decision to place Perez in
discharge status follows:"
Sometime during the period between the first and second
layoff Perez, then working on the night shift, allegedly went
into Kaplan's office and removed a chair for use elsewhere in
the plant. Kaplan'learned of this from the other employees
on the night shift. Prior to this time Kaplan had noted that
Perez had absented himself without calling in and had been
-late several times. On November 11 he had so notified the
Teamsters with whom Respondent had contractual relations.
Upon learning of the chair incident Kaplan again notified the
Teamsters by a communication date December 11, as follows:
Subject without permission came into my office at night
and removed my chair to the knitting floor. I am going
to warn him again not to disrupt my place of business.
Subject is continually disrupting my business.
Thereafter, as previously found, Perez appeared at the plant
several hours before his shift on the day before the December
13 layoff, wearing on his' shirt a Garment Workers button.
This created what Kaplan categorized as a disturbance
among employees then at work, all of whom belonged to the
incumbent Teamsters. For this Kaplan called Perez into the
office and told him not to disrupt the work, and that he
expected "eight honest hours of work from him." He also
referred to Perez' removal of the chair from his office and
reprimanded him for it stating, "If he even touches anything
of mine again I'm going to fire him."15 Kaplan's testimony
also makes it clear that he told Perez that any future disturb-
ance would be a cause for dismissal. Kaplan's layoff of Perez
on the following day, however, was not connected with the
reprimand of Perez. On the contrary, as noted above, it in-
volved the layoff of a number of employees because of slack
business and was admittedly effected on strict seniority.
Kaplan, in the course of his conversation with Perez on the
occasion discussed above, never discussed Perez' conduct
with him in terms of his union activity and Perez himself
conceded that Kaplan never asked him to remove the union
button that had caused the disruption in the first place.
13 Buitargo succeeded Rodrigues
14 For reasons previously stated, Perez' explanations and denials are not
considered as credible evidence
is Perez testified that he never removed the chair from the office but
nevertheless, to mollify Kaplan at the time of the reprimand, he did not deny
that he had taken it I would suggest that this particular mental gymnastic
of Perez is further evidence of his inability to cope with matters of truth or
falsity.
Sometime during his second layoff Perez came into the
office in the evening and removed from the timecard rack the
cards of the working employees in order-to identify the new
hires.16 At 'the same time, according to the testimony of
Garment Workers Organizer Sciacca, Perez took from the
top of the desk in the office copies of the Teamsters authoriza-
tion cards signed by Respondent's employees and brought
them to Sciacca who copied down the names. The record is
unclear as to what happened to these copies thereafter.
Kaplan was apprised of Perez' visit and his handling of the
timecards by an employee working on the night shift. He was
not told, however, that Perez had taken anything from the
office. Upon learning of Perez' unauthorized visit Kaplan
determined to discharge Perez. On December 31, 1973, he
wrote the. Teamsters to advise them, thus:
Subject while not in my employ came in to factory then
to office to copy names off of timecard rack. This action
was illegal please handle. Subject disrupted the work of
the workers who were present at the time. This hap-
pened during or before Xmas week.
By January 5, 1974, the callback of all laid-off employees
had been accomplished, excepting for Perez. Although he did
not so notify him Kaplan considered Perez discharged and
did not recall him. Several of the laid-off employees had
found jobs elsewhere in the meantime so Respondent hired
new employees in their place, some of whom had also left and
have been replaced.
Upon the filing of the complaint in this matter Respondent,
on advice of counsel, on January 15, 1974, telegraphed Perez
to return to work, conditioning the return upon reporting-by
Friday, January 15, 3 days later. In reply Perez informed
Respondent he was then working and that the short notice he
was being given was unfair, he being required to give 2-weeks
notice in order to advise his present employer of his planned
return. Thereafter, on February 28, Respondent reconfirmed
its January 15 offer, protesting that it had intended the origi-
nal one to be unconditional, and indicating that the new offer
would remain open for a period of 2 weeks.
Upon consideration of the foregoing findings, based as they
are upon credible testimony, I am persuaded that Employee
Jaime Perez was discharged by failure to be recalled for the
reasons stated by President Kaplan, namely his unauthorized
visit to the plant office and the handling and checking of the
timecards while there, and his removal of a chair from Ka-
plan's office. I am fully aware, of course, that Perez was
active in behalf of the Garment Workers and was indeed
responsible for the organization's activity among the em-
ployees. And I have no hesitancy in finding, as I do, that
Kaplan was fully aware of Perez' union activities. I know of
no rule of law, however, that provides such employees with
immunity from the usual consequences of misconduct, in-
cluding, as here, discharge. Having thus found and concluded
that Perez was discharged for cause and not for reason of his
union membership and activity I shall recommend that so
much of the complaint as alleges his discharge to be a viola-
tion of Section 8(a)(3) of the Act be dismissed.
16 I do not credit Perez' denial that he removed the cards from the rack.
COLONY KNITWEAR CORPORATION 255
E. The Alleged Refusal To Bargain
As I have detailed earlier, Garment Workers representa-
tives appeared at Respondent's plant on September 6 and
requested of President Kaplan that he recognize the Garment
Workers as the majority representative of the employees and
negotiate a contract. Kaplan's equivocal reply evoked from
Organizer Sciacca the suggestion that he consult an attorney
and, depending upon the version accepted, get in touch with
the Union or the Union would get-in touch with him. By
telegram dispatched immediately after the request and re-
ceived by Respondent the following day the Garment Work-
ers repeated its demand and stated its willingness to prove its
majority status. All of this is conceded by Respondent.
Extensive testimony and documentation was adduced at
the trial, including employees' signed cards authorizing the
Garment Workers to represent them. It is upon the basis of
these cards, claimed by counsel for the General Counsel to
represent a majority of the employees in an appropriate bar-
gaining unit, and Respondent's failure to recognize and bar-
gain with the Garment Workers, that General Counsel bases
his contention that'there has been an unlawful refusal to
bargain which warrants the issuance of a bargaining order.
In N.L.R.B. v. Gissel Packing Company, 395 U.S. 575,
614-615 (1969), the Supreme Court stated that a bargaining
order should issue "[i]f the Board finds that the possibility of
erasing the effects of past practices and of ensuring a fair
election by the use of traditional remedies, though present, is
slight and the employee sentiment once expressed through
cards would, on balance, be better protected by a bargaining
order." The alleged misconduct which General Counsel
claims to be such as would preclude the holding of a fair
election and would thus require the issuance of a bargaining
order was the discharge of Perez which, upon credible evi-
dence, I have found to have been for cause, and the substance
of Kaplan's reprimand of him which I have found, also upon
credible evidence, not to constitute unlawful interference,
restraint, or coercion. So much of the legal basis which would
support a bargaining order having evaporated, all that re-
mains is the unlawful assistance which Respondent has been
alleged to have given to the Teamsters by recognizing it under
most peculiar circumstances, negotiating a contract with it,
agreeing in the contract to a provision for a union shop
requiring continuing Teamsters membership, for the checkoff
of dues and initiation fees, and for maintaining and enforcing
this contract. In greater detail hereafter I shall consider this
particular allegation and will find it to be violative of the Act.
I am not persuaded, however, that this is the variety of ag-
gravated conduct that the Supreme Court had in mind in
Gisselas would preclude the holding of a free election. On the
contrary, the multiplicity of signed authorization cards here,
some executed under peculiar circumstances (Quiroga and
Niccolini, supra) seems to be a representation situation
which cries out for the holding of an election to resolve the
confusion.
Upon consideration of the foregoing, and upon considera-
tion of the lack of credible evidence to support a finding of
unlawful conduct of the nature contemplated by the Court in
Gissel, I find an analysis of the cards unnecessary,17 and will
recommend that as of so much of the complaint as alleges a
violation of Section 8(a)(5) requiring the issuance of a bar-
gaining order be dismissed. -
F. The Unlawful Assistance to the Teamsters
The circumstances surrounding the efforts of the Garment
Workers-to be recognized by Respondent and the counterplay
which followed thereafter have been so sufficiently detailed
to this point in the Decision as to not require further repeti-
tion. Suffice it to say that immediately upon being presented
with the Garment Workers demand for majority recognition,
followed by the telegrams of offer to prove that majority,
Respondent admittedly undertook, through the apparent
aegis of its silent partner, Karol, a liaison with the Teamsters
which quickly resulted in the presentation of signed Team-
sters authorization cards. At least some of these, it was testi-
fied, were signed in Respondent's office. There immediately
followed a verification of card signatures with cancelled pay-
checks, the recognition of the Teamsters, the signing of a
memorandum of agreement, the execution of a collective
agreement which included union-security and checkoff provi-
sions, and the implementation and enforcement of this agree-
ment thereafter.
Nothing is so firmly established in the law of labor rela-
tions as the obligation of an employer to maintain a position
of strict neutrality when faced with the conflicting claims of
two or more rival unions which give rise to a real question
concerning representation in a unit appropriate for collective,
bargaining." Implicit in this concept of neutrality is the ex-
istence of a real representation question. And in this respect
it is understood, of course, that the filing of a representation
petition by a rival organization, a condition not present here,
is not the sine qua non. 19 What is significant is the character
of the rival claim. Thus it is well established that "employer
does not violate the Act by extending recognition to one of
the competiting [sic] unions where the rival union 's claim is
clearly unsupportable or specious, or otherwise a colorable
claim."20
In the instant situation certain things are clear: The rivals
exist, the claim was made, and by Respondent's recognition
of the Teamsters and the execution of a contract, after the
making of the claim, the neutrality was breached. What re-
mains to be determined then is whether, by established stan-
dards, the claim of the Garment Workers failed to create a real
question concerning representation. I find no such deficiency.
It is of no consequence that the majority status of the
Garment Workers has not been established, nor should it be
required to be. Findings based upon evidence adduced at the
hearing disclosed that 6 of the 13 employees in the appropri-
t7 A review of the record discloses that as of September 6, the date of the
Garment Workers' demand, there were 13 employees in the bargaining unit,
including Schlyfestone and 3 Sunday workers As of the same date cards had
been signed by employees Whiteman, Bogdanov, Sierra, Imbert, Marquez,
and Perez, a total of six For reasons of credibility previously stated I have
not included the card signed by employee Quiroga (alias Niccolini).
18 Midwest Piping & Supply Co., Inc., 63 NLRB 1060; William Penn
Broadcasting Company, 93 NLRB 1104.
19 Novak Logging Company, 119 NLRB 1573, 1574 (1958), 'and cases
cited at In. 4.
20 The Boy's Markets, Inc., and Food Employers Counci4 Inc, 156 NLRB
105 (1965)
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ate unit had authorized the Garment Workers to represent
them at the time the claim was made. To the extent, therefore,
that the complaint herein alleges a violation based upon the
Garment Workers being designated by a "majority of the
employees," I would conclude and find that the General
Counsel has failed in its proof. But as neither substantiality
nor majority is of moment in the circumstances presented
here I would further conclude that, having made its claim,
which for reasons previously considered must necessarily be
considered colorable, being based as it is upon authorization
cards 'of seven employees, the Garment Workers thereby
created a real question concerning representation. Upon the
foregoing, therefore, it is clear that during the pendency of a
real question concerning representation Respondent
breached the neutrality required of it by recognizing and
bargaining with the Teamsters.21 As such conduct has con-
sistently been held to be interference, restraint, and coercion
of employees in the exercise of their statutory rights and
unlawful assistance to a labor organization, I conclude and
fmd that Respondent has thereby violated Section 8(a)(1) and
(2) of the Act.22
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its business operations
21 American Bread Co'mpany, 170 NLRB 85, fn. 1 (1968)
22 The Boy's Markets, Inc, supra; Scherrer and Davisson Logging Com-
pany, 119 NLRB 1587 (1958), William Penn Broadcasting Company, supra;
Midwest Piping and Supply Co., Inc., supra
23 The Bassick Company, Spring Valley Division, a division of Stewart-
Warner Corporation, 127 NLRB 1552 (1960).
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found and concluded that Respondent rendered
unlawful assistance and support to the Teamsters, thereby
interfering with, restraining, and coercing its employees'in
the exercise of rights guaranteed them by Section 7 of the Act,
I shall recommend that it cease and desist therefrom. Affir-
matively I shall recommend that Respondent withdraw and
withhold any recognition it has granted the aforesaid Team-
sters or any labor organization unless and until the National
Labor Relations Board has certified it, or such other labor
organization as may qualify as majority representative of
Respondent's employees, following a Board-conducted elec-
tion in the unit which I have found to be appropriate for the
purposes of collective bargaining. I shall further recommend
that nothing in the Board's order be construed as-varying or
abandoning wages, hours, seniority, or other substantial
benefits contained in any outstanding agreement between the
Respondent and the Teamsters.23 I shall further recommend
that Respondent post customary notices.
In addition I shall recommend that the Regional Director
be directed to refer the record in this case to the United States
attorney for the Eastern District of New York and agencies
of the Federal and state governments responsible for the ad-
ministration of unemployment insurance matters for appro-
priate action.
[Recommended Order omitted from publication.]