Eddie Garofalo

National Labor Relations Board - Board Decisions

Jun 22, 1961

131 N.L.R.B. 1260 (N.L.R.B. 1961)

1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rock was a party to the contract and the hiring policy which gave rise to the labor
dispute. Shelter Rock is a mere instrumentality of Searington . Their premises was
the locale of and harbored the dispute.
Under such circumstances Searington and Shelter Rock were primary employers
as well as Bomat . The three were allies in the initiation of the policy which pre-
cipitated the controversy . The construction site was therefore a primary situs at
which the Respondent could lawfully picket and seek to induce action by others
in respect to the dispute. Ryan Construction Corporation , 85 NLRB 417 (overruled
in respects not here material in Crystal Palace Market, 116 NLRB 856; and in
Virginia -Carolina Chemical Corporation , 126 NLRB 905); Douds v. Federation,
75 F. 2d 672 (D.C.N.Y.).
So far as Searington and Shelter Rock were concerned , there was no other location
at which the Respondent could lawfully reach and effectively protest their manner
of operations . True they sought to induce Bomat to modify the policy of hiring
only nonunion plumbers on the project. But when Bomat refused Searington and
Shelter Rock did not exercise their unquestioned power to order the policy to be
terminated immediately . Had they done so there would have been no occasion for
further controversy . The Respondent confined its picketing to the situs of the dis-
pute. The picket signs clearly and truthfully advised the public of the nature of
the dispute . Since Searington and Shelter Rock were not mere contractors , and the
premises not a temporary location at which they were transiently doing business,
but instead was their principal and permanent base of operations , the project con-
stituted a primary and not a mixed or common situs. The picketing therefore did
not have to comply with the standards of the Moore Dry Dock case, 92 NLRB 547.
[Recommendations omitted from publication.]
Eddie Garofalo and Dress Makers Joint Council , International
Ladies' Garment Workers Union, AFL-CIO. Cases Nos. 2-CA-
7612 and 2-CA-7612-2. June 22, 1961
DECISION AND ORDER
On March 9, 1961, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that he cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner found
that the Respondent had not engaged in other alleged unfair labor
practices and recommended that such allegations be dismissed. There-
after, the General Counsel and the Respondent filed exceptions to the
Intermediate Report. A supporting brief was also filed by the Gen-
eral Counsel.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner.
'In the absence of any exceptions thereto , we adopt pro forma the Trial Examiner's
conclusion that the record does not support the allegations of the complaint regarding
surveillance of a union meeting by the Respondent , or his solicitation of employees to
report to him any union activities.
131 NLRB No. 157.
EDDIE GAROFALO
ORDER
1261
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Eddie Garofalo,
Brooklyn, New York, his agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Dress Makers Joint Council, In-
ternational Ladies' Garment Workers Union, AFL-CIO, or in any
other labor organization, by discharging or laying off any of his
employees or in any other manner discriminating in regard to their
hire or tenure of employment, or any term or condition of their
employment.
(b) Interrogating employees concerning their interests in and in-
tentions with respect to joining the above-named or any other labor
organization, in a manner constituting interference, restraint, or co-
ercion within the meaning of Section 8 (a) (1) of the Act.
(c) Threatening employees with discharge or other economic re-
prisals for their union activities.
(d) Circulating a statement for the signature of his employees
that they do not want the Union.
(e) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to
join or assist the above-named Union, or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities or to refrain from any or
all such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment, as authorized by Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer employees Elba Roman, Leida Lugo (del Toro), Margot
Lugo, and Myrna Lugo 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 earnings they may have suffered by reason of the dis-
crimination against them, in the manner set out in the section of the
Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary for the determination of the amount of
backpay due and the right of reinstatement under this Order.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its Brooklyn, New York, plant, copies of the notice
attached hereto marked "Appendix." 2 Copies of said notice, to be
furnished by the Regional Director for the Second Region, shall,
after being duly signed by the Respondent, be posted immediately
upon receipt thereof, and be maintained for a period of 60 consecutive;
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of this Order, what steps have been taken
to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that Respondent engaged in or threatened
to engage in, or solicited the surveillance of employees' union activities
in violation of Section 8(a) (1) of the Act.
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the-
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor-
Relations Act, as amended, I hereby notify you that :
I WILL NOT discourage membership in Dress Makers Joint Coun-
cil, International Ladies' Garment Workers Union, AFL-CIO,
or in any other labor organization, by discharging or laying off
my employees or in any other manner discriminating in regard
to their hire or tenure of employment or any term or condition of
employment.
I WILL NOT interrogate employees concerning their interest in,
and intentions with respect to joining the above-named or any-
other labor organization, in a manner constituting interference,
restraint, or coercion within the meaning of Section 8(a) (1) of
the Act.
I WILL NOT threaten employees with discharge or other eco-
nomic reprisals for their union activities.
-I WILL NOT circulate a statement for the signature of my em-
ployees which states that they do not want the Union.
I WILL NOT in any other manner interfere with, restrain, or
coerce my employees in the exercise of their right to self--
organization, to form labor organizations, to join or assist the
above-named or any other labor organization, to bargain col--
EDDIE GAROFALO 1263
lectively through representatives of their own choosing and to
engage in other concerted activities or to refrain from any or all
such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as
a condition of employment as authorized by Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
I WILL offer Elba Roman, Leida Lugo (del Toro), Margot
Lugo, and Myrna Lugo 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 earnings they may have suffered by reason
of the discrimination against them.
EDDIE GAROFALO,
Employer.
Dated---------------- By------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been filed and served in the above -entitled cases; an order con-
solidating cases, a complaint , and notice of hearing thereon having been issued
and served by the General Counsel of the National Labor Relations Board; and
an answer having been filed by the above-named Respondent , a hearing involving
allegations of unfair labor practices in violation of Section 8(a) (1) and ( 3) of the
National Labor Relations Act, as amended, was held in New York, New York, on
January 31 and February 1, 1961, before the duly designated Trial Examiner.
At the hearing all parties were represented by counsel and were afforded full
opportunity to present evidence pertinent to the issues , to argue orally , and to file
briefs. All counsel argued orally upon the record. Although belated by a full
week, a brief received from the Respondent on March 6 has been given full con-
sideration . Disposition of the Respondent 's motion to dismiss a certain allega-
tion of the complaint , upon which ruling was reserved at the conclusion of the
hearing, is made by the following findings , conclusions , and recommendations.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Eddie Garofalo is an individual proprietor, with principal office and place of busi-
ness in Brooklyn, New York, where he is engaged in the business of providing and
performing sewing and other manufacturing services on women 's and children's
dresses and related products on behalf of other persons.
During the 12 months before issuance of the complaint, the Respondent performed
such services valued at more than $50,000 upon garments for a concern in Hoboken,
New Jersey, and shipped such garments from his plant to that concern.
The Respondent concedes, and it is found, that it is engaged in commerce within
the meaning of the Act.
II. THE CHARGING UNION
Dress Makers Joint Council , International Ladies' Garment Workers Union, AFL-
CIO, is a labor organization admitting to membership employees of the Respondent.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
All of the issues raised by the complaint stem from events occurring within a few
days after a number of the Respondent's employees signed cards authorizing the
Charging Union to serve as their bargaining agent in October 1960.
The substance of the violations alleged in the complaint and denied in the answer
includes the discharge of four employees: Elba Roman, Leida Lugo (del Toro),
Margot Lugo, and Myrna Lugo, as well as various alleged acts of interference, re-
straint , and coercion of employees in the exercise of rights guaranteed by the Act.
The plant is a small one, employing about 30 persons. Although Eddie Garofalo,
a comparatively young man, as sole proprietor appears to have final management
control, he is assisted by one forelady, Carmen Maldonado, admittedly a supervisor
within the meaning of the Act, and his mother, Mona Garofalo, whose precise
status as a supervisor is in question.
B. The events in issue
On October 4, 1960, employees Elba Roman and Leida Lugo (del Toro) visited
the office of the Charging Union, signed cards authorizing that labor organization to
represent them in collective bargaining, and obtained blank cards of the same nature
to be distributed among other employees at the plant. Such cards included some
with English text and others with Spanish text, many of the employees being from
Puerto Rico.
The next day Roman, Leida Lugo, and the latter's mother, Margot Lugo, also an
employee, distributed the cards among employees at the plant.
As a witness Eddie Garofalo admitted that he promptly became aware that
Roman and Leida Lugo were distributing cards and he further admitted that he be-
came "hot" about it.
At the close of that workday Leida Lugo was called into Garofalo's office, being
accompanied by her mother, Margot. In the office were Eddie Garofalo and his
mother, Mona. It is undisputed that Eddie told Leida that he did not like her trying
to get a union in the plant-"they wouldn't have the union in the shop"-and warned
her that "all the girls who signed the union cards will get fired." Mona Garofalo
declared that they had "a lot of money to spend" to prevent the Union coming in,
and told Leida that her "best girl friend" had turned in one of the cards distributed.
When Leida Lugo reported for work the next morning, October 6, Garofalo met
her at the clock and would not permit her to punch in. He said there was no
work for her, but declined to give her a layoff slip in order that she might obtain
unemployment benefits. Leida went out for breakfast and then returned to the plant
for her umbrella. Mona Garofalo saw her return and called her into the office.
There, in Eddie's presence, Mona again berated her for "trying to get the union in
the shop" and told the employee that "all the girls who had signed the cards (had)
ripped them up." When Leida expressed some doubt about this, stating that she
had possession of the signed cards, Mona became angry, and drove her out of the
plant, calling out loud enough for other employees to hear: "Get out, you rat." 1
That same morning October 6, Eddie and his mother went into the plant and
had the machines shut down. According to the former's own testimony, he called
all the girls together. Being a "little hot," as he testified, he told them "there would
be no union thing in here," and declared that he had "found out girls were distribut-
ing cards." He directed those who had signed cards to raise their hands, and then
told those who did so to "finish their work and leave." Apparently he relented as
to carrying out his last order, but thereafter, also according to his own testimony,
he had his forelady, Carmen Maldonado, "fill out" and pass out among the em-
ployees, for their signature, papers both in Spanish and English bearing the text:
We the people who word for Eddie Garofalo at 276 Baltic St. Do not wont
[sic] the union of any kind. We are happy and want to work as we are.
We are not forced to sign this paper. We wont [sic] to sign it at our own
will.
It appears not surprising that following Eddie's remarks, as admitted by himself,
a number of employees should have signed the paper given to them by their fore-
lady.
1 The quotations are from Leida Lugo's uncontradicted testimony.
EDDIE GAROFALO 1265
Later the same morning Elba Roman was called into the office, where Eddie and
his mother, Mona, and his father, Angelo, were waiting. Angelo showed her an
authorization card in Spanish and Mona demanded to know whether she had signed
one. She denied it. Angelo told her she would be "chucked out" if she wanted
the Union. She went back to work but in a few minutes Mona came to her, called
her a "rat," and told her to "Go." Elba left .2
Neither Elba Roman nor Leida Lugo have been reinstated .3
It is undisputed, and found, that Mona Garofalo on October 5 asked employee
Perez if she had signed a union card and interrogated her as to who else signed.
It is undisputed, and found, that on October 6 Eddie Garofalo called employee
Carmen Maldonado (not the forelady) to him and said he had heard she had signed
a card. She admitted the fact but said she had left the card at home. Mona Garo-
falo then instructed her to "tear it up" when she got home, and not "give it in."
Thursday night, October 13, a union meeting was held at a Brooklyn restaurant.
Margot Lugo and her daughter, Myrna, both went to the meeting in company with
two union representatives.4 It is uncontradicted that the Respondent had knowledge
of the meeting and that the next morning both Margot and Myrna were spoken to
by Mona Garofalo regarding their attendance. Both were discharged later the same
day.
The circumstances of Myrna's discharge, as described by her credible and largely
undisputed testimony, are as follows: As floor girl, Myrna was instructed by Eddie
Garofalo to go to a deaf mute's place of work and pick up certain dresses for count-
ing and cleaning. She obeyed instructions. Another employee, Hannah Wheeler,
objected to Myrna's taking the dresses, despite the fact that the latter told her she
was acting under Garofalo's instructions. An -argument developed. Eddie came up
and promptly discharged Myrna.
And the end of the same day it is undisputed that Margot was called into the
office, given her money by Eddie, and told by him that he did not need her or
Myrna anymore, because he did not "want to have anything [anyone] here con-
nected with the union." 5
C. Conclusions
The foregoing facts, based largely upon admissions of Eddie Garofalo and undis-
puted testimony of employees, establish beyond question, in the opinion of the Trial
Examiner, that all four discharges involved were discriminatorily and for the pur-
pose of discouraging membership in the Charging Union.
In addition to the discharges, it is concluded and found that by the following
above-described conduct the Respondent interfered with, restrained, and coerced
employees in the exercise of rights guaranteed by the Act:
(1) The threats of reprisals uttered by both Eddie and Mona Garofalo to Elba
Roman in the office on October 5; 6 (2) Mona's berating of Leida Lugo in the office
2 Elba Roman's account of the circumstances leading up to her discharge by Mona is
undisputed by Eddie, Mona, or Angelo Garofalo. Eddie, however, said that he dis-
charged her that morning because she protested his criticizing her for "slow" work. His
testimony lacks any support in the record as to this discharge, and the Trial Examiner
does not credit it.
8 Eddie Garofalo did claim that later in the day of Leida Lugo's discharge he asked her
mother to have her return. Margot Lugo, however, denied this claim, and the Trial
Examiner cannot credit Garofalo. In any event, it is clear that no offer of reinstatement
was made directly to Leida.
4 Despite some testimony regarding a "white Cadillac" being in the neighborhood, the
Trial Examiner is unable to find sufficient evidence in the record to support the allegation
in the complaint of "surveillance." It will be recommended that this allegation be
dismissed.
6 The Trial Examiner finds without merit Eddie Garofalo's claim that he fired Myrna
because she could not "get along with" Hannah, or that he let Margot go because "she
had leaned toward her daughter."
6 It appears to the Trial Examiner that General Counsel exerted a good deal of effort
in an attempt to prove that Mona Garofalo was a supervisor within the meaning of the
Act. It seems unnecessary to determine this precise legal point. It is clear that Mona's
antiunion conduct was mainly in Eddie's presence and obviously with his approval, or in
pursuance of an example set up by her son. In this capacity she plainly served as the
Respondent's agent, and the Respondent must be held accountable.
599198-62-vol. 131-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on October 6 because of her union activity; (3) Garofalo's threat to all employees
on October 6 that those who had signed cards must "leave"; (4) his instructions to
these employees that they must reveal whether or not they had signed cards by
raising their hands; (5) the circulation by the forelady, at Eddie Garofalo's instruc-
tions, of the statement for signature by employees that they did not want the Union;
(6) the interrogation by Mona Garofalo, in her son's presence, of Elba Roman as
to whether she had signed a card, and the similar interrogation, not in her son's
presence, of employee Perez; and (7) similar interrogation by Eddie Garofalo of
employee Maldonado and Mona Garofalo's instruction to her to tear up the card
she had signed.?
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent 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 burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices the Trial
Examiner will recommend that it cease and desist therefrom and take certain action
to effectuate the policies of the Act.
It will be recommended that the Respondent offer employees Elba Roman, Leida
Lugo (del Toro), Margot Lugo, and Myrna Lugo immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their rights
and privileges, and make them whole for any loss of pay suffered by reason of the
discrimination against them, by payment to each of them of a sum of money equal
to that which she would normally have earned as wages, absent the discrimination
from the date of the discharge to the date of the offer of reinstatement, less their net
earnings during said period and in a manner consistent with Board policy set out
in F. W. Woolworth Company, 90 NLRB 289, and Crossett Lumber Company, 8
NLRB 440.
Since the violations of the Act which the Respondent committed are related to
other unfair labor practices proscribed by the Act, and the danger of their commis-
sion in the future is reasonably to be anticipated from its past conduct , the preven-
tive purposes of the Act may be thwarted unless the recommendations are coexten-
sive with the threat. To effectuate the policies of the Act, therefore, it will be
recommended that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed employees by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Dress Makers Joint Council, International Ladies' Garment Workers Union,
AFL-CIO, is a labor ogranization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of employees,
thereby discouraging membership in the above-named labor organization, the Re-
spondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
7 As noted in a preceding footnote, the Trial Examiner is unable to find sufficiently
identifying evidence to sustain the allegation of surveillance Likewise-perhaps because
of the confusion of the one witness on the point-there is insufficient evidence, in the
opinion of the Trial Examiner , to sustain an allegation in the complaint to the effect that
after the four discharges the Respondent solicited employes to attend union meetings
and report occurrences to the Respondent.