H. S. Knitting Mills, Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1974

211 N.L.R.B. 355 (N.L.R.B. 1974)

H.S. KNITTING MILLS 355
H. S. Knitting Mills, Inc . and Blouse , Skirt and
Sportswear Workers Union Local 23-25, Interna-
tional Ladies' Garment Workers' Union , AFL-CIO.
Case 29-CA-3578
June 12, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On February 28, 1974, Administrative Law Judge
Ramey Donovan issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief and the General Counsel filed
cross-exceptions and an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order as modified
herein.
AMENDED REMEDY
We shall order Respondent to make whole those
employees who made unconditional application for
reinstatement on December 7 and 10, 1973, respec-
tively, by payment to them of a sum of money equal
to that which they normally would have earned as
wages beginning 5 days after the date on which they
applied for reinstatement.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
H. S. Knitting Mills, Inc., of Brooklyn, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in said recommended Order, as so
modified:
1. Change paragraph 1(c) to 1(d) and insert the
following as 1(c):
"(c) Refusing to reinstate discharged strikers
because they participated in a strike or because they
engaged in other concerted activities for collective-
bargaining purposes."
2. Substitute the following for paragraphs 2(a)
and (b):
"(a) Offer to Modesta Suriel, Lidia Nunez, Eladio
Aquino, Maria Rodriguiz, Maria Martos, Elidia M.
Crus, Peter Di Girolamo, and Alice Rodriguez
immediate and full reinstatement to their former
positions or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges,
dismissing, if necessary, any employees hired subse-
quent to the discharges of September 26, 1973.
"(b) Upon application, offer to Maria Ferrera,
Lolita Delgado, Matilda Corria, Florenzo Lascano,
Aluzangela Tomaayas, Grace Martos, and Maxima
Batista, immediate and full reinstatement to their
former positions or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges,
dismissing, if necessary, any employees hired subse-
quent to the discharges of September 20, 1973."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with harm or
reprisal if they engage in union or concerted
activities that are protected by Section 7 of the
National Labor Relations Act.
WE WILL NOT discharge employees because
they engage in union or concerted activity on
behalf of Blouse, Skirt and Sportswear Workers
Union Local 23-25, International Ladies' Gar-
ment Workers' Union, AFL-CIO, or any other
union.
WE WILL offer to Modesta Suriel, Lidia Nunez,
Eladio Aquino, Maria Rodriguez, Maria Martos,
Elida M. Crux, Peter Di Girolamo, and Alice
Rodriguez immediate and full reinstatement to
their former positions or, if those jobs no longer
exist, to substantially equivalent positions, dis-
missing, if necessary, any employees hired after
the discharges on September 20, 1973.
WE WILL offer, upon request, to Maria Ferrera,
Lolita Delgado, Matilda Corria, Florenzo Lasca-
no, Aluzangela Tomaayas, Grace Martos, and
Maxima Batista immediate and full reinstatement
to their former positions or, if those jobs no
longer exist, to substantially equivalent positions,
dismissing, if necessary, any employees hired
after the discharges on September 20, 1973.
WE WILL make whole the 15 employees above-
named for any losses in pay they may have
suffered by reason of their discharge on Septem-
ber 20, 1973.
211 NLRB No. 38
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner, interfere
with, restrain, or coerce employees in the exercise
of their rights, as guaranteed by Section 7 of the
National Labor Relations Act, to join or assist
Blouse , Skirt and Sportswear Union Local 23-25,
International Ladies' Garment Workers' Union,
AFL-CIO, or any other labor organization, to
bargain collectively through representatives of
their own choosing or to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or
to refrain from any and all such activities except
to the extent that such right might be affected by
an agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3) of the said Act, as
modified by the Labor-Management Reporting
and Disclosure Act of 1959.
WE WILL NOT discourage concerted activity or
union activity on behalf of Blouse, Skirt and
Sportswear Union Local 23-25, International
Ladies' Garment Workers' Union, AFL-CIO, or
any labor organization, by discharging or discrim-
inating against strikers or employees who refrain
from work during a strike.
H. S. KNITTING MILLS,
INC.
(Employer)
ees with discharge and other reprisals if they became
members of the Union or assisted or supported the Union.
All the foregoing conduct is alleged to constitute violations
of Section 8(a)(1) and (3) of the Act. In its answer
Respondent denies the commission of the alleged unfair
labor practices. The case was tried in Brooklyn, New York,
on December 17, 1973, with all parties represented by
counsel.
FINDINGS AND CONCLUSIONS
1. JURISDICTION
At all times material , Respondent is a New York
corporation that maintains its principal office and place of
business at Berriman Street , city and State of New York,
herein called the plant . At the plant , Respondent manufac-
tures, sells , and distributes knit goods and related products.
During a representative 12-month period in 1973,
Respondent , in the course of its business , purchased and
caused to be transported at its plant , yarn and other goods
and materials valued in excess of $50 ,000, of which goods
and materials valued in excess of $50,000 were transported
and delivered to its plant in interstate commerce directly
from states of the United States other than New York.
Respondent , at all times material , is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
The Union , at all times material , is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 16 Court Street, Fourth Floor,
Brooklyn, New York 11201, Telephone
212-596-3535.
DECISION
RAMEY DONOVAN, Administrative Law Judge: The
charge in this case was filed on October 2, 1973, by the
Union, and the complaint issued on November 21, 1973.
The complaint alleges that, on or about September 20,
1973, Respondent, H. S. Knitting Mills, Inc., discharged 15
named employees because they engaged in a concerted
work stoppage and strike ; and that Respondent on
December 7 and 10 , 1973, refused to reinstate eight named
dischargees upon their unconditional request for reinstate-
ment . It is alleged that Respondent threatened its employ-
Gerstein , director of organization of the Union , testified
that a delegation of Respondent 's employees had ap-
proached the Union and had asked the latter to represent
them. Thereafter, on Tuesday, September 11, 1973,
Gerstein and Gomez , a union organizer , went to Respon-
dent's plant and spoke to Sher , the sole stockholder and
principal operating official of Respondent.
According to Gerstein's and Gomez' credible testimony,
after Gerstein introduced himself and Gomez to Sher,
Gerstein informed Sher that a majority of Respondent's
employees had come to the Union to ask the Union to
represent them . The union representatives said that they
represented a majority of the employees and would like to
negotiate a contract . Sher said that he paid his employees
$3 an hour, as well as vacations , holidays, and benefits.
Sher said that Gerstein was not interested in the employees
but in himself as a union official . Gerstein said that the
Union represented a majority of Sher's employees and that
the latter had signed union cards. When Sher asked which
employees had signed, Gerstein said that at the proper time
the Union would present the cards to the National Labor
Relations Board. Sher repeated that Gerstein and Gomez
were not interested in the employees but only in them-
selves. The two union representatives then left.'
On the following morning, Wednesday, September 12,
about 7 a.m., a union picket line appeared in front of
Respondent's plant. The signs carried by the pickets read,
I Sher testified that the union representatives had asked him to sit down
and negotiate and when he said, let me think about it, they left
H. S. KNITTING MILLS 357
H. S. Knitting, On Strike, and the name of the Union. By
about 8 a.m. there were approximately 20 of 21 employees
outside the plant who had not gone in to work.2 Some of
these employees had joined the picket line while others had
simply refrained from going into the plant and remained
outside. When Sher arrived, sometime around 7:30 a.m., he
thereafter told all the employees who had not come into
the plant that they should not be afraid and that if they
wished to work they should go into the plant.3 According%
to Sher, "about seven" employees then went into the plant
to work .4
From and including September 12 through Thursday,
September 20, 1973, 14 employees had not reported for
work. By certified letter dated September 20, 1973, to all 14
employees who had not reported for work, and in some
cases by additional manual transmission of the letter,
Respondent notified these employees that they were
"permanently discharged for failure to report for work
during the period commencing Wednesday, September 12,
1973, to the present date." Consistently, in his testimony
throughout this hearing, Sher has affirmed that he
discharged the employees because they failed to report for
work during the strike.
Peter Di Girolamo, an employee, went to work and
worked on September 12 and 13, 1973, the first 2 days of
the strike. Thereafter, he did not report to work. In the
period when he, Di Girolamo, did not come to work, Sher
telephoned him and said, "Peter, come back to work."
Peter, however, did not report for work after this call.
The Reverend Cono De Paola is a priest stationed in a
church about a block from Respondent's plant. Most of
the Spanish-speaking employees of Respondent are parish-
ioners of the church. Cono De Paola has known Peter Di
Girolamo about 5 years.
On apparently 1 or 2 days during the initial stages of the
September 12 strike, Cono De Paola went to the plant and
spoke to Sher. One of these conversations occurred after
Peter Di Girolamo did not report for work and Cono De
Paola testified that it was probably on Friday.5 Sher told
Cono De Paola to tell Peter that Sher "would fire Ignazo
too if Peter wouldn't come [to work]" and Peter could find
himself another job. Thereafter Cono De Paola conveyed
this message to Peter, telling Peter that "if he didn't go
back to the job, to work, he [Sher] would fire Ignazo."6
Peter Di Girolamo testified that after working the first 2
days of the strike, he decided to join the strike and not to
work. He signed a union card. Sher testified that he
discharged Peter Di Girolamo when he stopped coming to
work. Peter received his paycheck and termination letter
on September 21, 1973. His brother Ignazo had brought
them to him since Peter was not at the plant. The letter was
the same as the letters sent and given to the other 14
2 One employee, who customarily came into the plant at 6 a m to open
the premises , was already inside the plant
3 During the course of the morning police had appeared on the scene
The police sergeant announced to the employees and others outside the
plant that whoever wanted to work could go to work
4 When asked the names of these employees Sher named eight, to wit,
Milleaeppo, Duria; Wolcszyn (this is the girl who had gone in at 6 am,
before the work customarily started), Bonita Rodriguez, Peter Di
Girolamo: Igazo Di Girolamo, Pennisi, Gold This would be seven,
excluding Wolcszyn
5 Peter did come to work on Wednesday and Thursday, September 12
employees on September 20 and who had not come to
work because of the strike. In short, Peter was advised that
effective September 20, 1973, he was permanently dis-
charged for failure to report to work.
On Friday, December 7, 1973, Union Organizer Escobar
went to the plant with employees Modesta Suriel, Eladio
Aquino, and Lidia Nunez.7 Escobar told Sher that the
three employees wanted reinstatement to their jobs.
Escobar also handed to Sher letters signed by each of the
three employees and addressed to Sher. The letters stated
that the writer or signer was making an "unconditional
request for reinstatement to my job in your shop. I am
ready to return to work at once."
According to Escobar, Sher then called him a racketeer
who had spoiled his business and now wanted him to take
back the employees. He told Escobar that he would not
hire back the employees, that business had been spoiled by
the Union and was slow. Sher told Escobar to leave and
escorted him to the door.
On Monday, December 10, 1973, union organizer
Gomez came to the plant with five different employees and
told Spencer that the employees wanted reinstatement and
were ready to go back to work .8 Gomez also handed to
Sher letters signed by the five employees and addressed to
Respondent. The letter stated:
We hereby serve notice upon you of our unconditional
request for reinstatement to our jobs in your shop. We
are ready to return to work at once.
On this occasion Sher told Gomez that he had no work
and no jobs for the aforementioned people; that the Union
had put his plant on strike and had taken the employees on
strike and, so let the Union find jobs for them. Sher also
said that he was closing the plant for 2 weeks' vacation and
would give vacation pay to the employees now working for
him inside the plant. I credit Gomez that Sher did not offer
to take back the five employees after the 2-week vacation
period that Sher said would t,'ke place.
Conclusions
In September 1973, after the commencement of the
strike, when Sher told the Reverend Cono Paola to tell the
latter's friend, employee Peter Di Girolamo, that Sher
would discharge employee Ignazo Di Girolamo, brother of
Peter, if Peter did not return to work (during the strike),
this was a threat of reprisal calculated to interfere with
Peter's exercise of his rights under Section 7 of the Act.9 I
find this conduct to constitute a violation of Section 8(a)(1)
of the Act. The fact that the threatened action against
and 13, and did not report on Friday, September 14, and thereafter
6 Ignazo Di Girolamo is the 70-year-old brother of Peter and he was
employed in the plant Sher had told Cono De Paola that he had only hired
Ignazo in the first place because of Peter Ignazo worked throughout the
strike and was not discharged
These were 3 of the 15 employees discharged on September 20, 1973
8 The five employees were among the 15 discharged on September 20,
1973, because they had refused to work during the strike They were Maria
Rodriguez, Alice Rodriguez, Maria Martos, Elida M Cruz, Peter Di
Girolamo
9 Cono Paola did give Sher's message to Peter as directed by Sher
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ignazo was not subsequently carried out, does not affect
the conclusion that an illegal threat had been made.'°
On and since September 12, 1973 , 14 of the 15 employees
named in the complaint engaged in a union -sponsored
strike and a concerted work stoppage , a concerted
withholding of services , and refusal to cross a picket line at
Respondent's plant. An additional employee, Peter Di
Girolamo, began his participation in the strike, concerted
work stoppage, concerted withholding of services, and
refusal to cross the picket line on September 14, 17, or 18,
1973. The foregoing described conduct of the 15 employees
was protected activity within the meaning of Section 7 of
the Act. The "permanent discharge" of the 15 employees
on September 20, 1973, because they did not report for
work and engaged in a strike , a concerted work stoppage, a
concerted withholding of services, and refusal to cross the
picket line, constitutes a violation of Section 8(a)(3) and (1)
of the Act. Respondent has failed and refused to reinstate
the 15 discharged employees, including 8 of the 15
employees who applied for reinstatement on December 7
and 10, 1973. This is a continued violation of Section
8(a)(3) and (1) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices it will be recommended that it be
ordered to cease and desist from such conduct and to take
certain affirmative action to effectuate the policies of the
Act.
It is doubtful that any characterization of the strike is
necessary, since "Quite apart from any characterization of
the strike that continued after the wrongful discharge
occurred, the discharges [on September 20, 19731 were a
sufficient ground for the Board's reinstatement order." 11
However, since the dischargees were strikers or were
engaged in a concerted withdrawal from work and were
respecting the picket line prior to , and at the time of, their
discharge and thereafter , their rights to reinstatement and
backpay become operative from the date of their uncondi-
tional application for reinstatement . Three dischargees,
heretofore described , made unconditional application for
reinstatement on December 7, 1973; five other dischargees,
heretofore described, made unconditional application for
reinstatement on December 10, 1973. All were refused
reinstatement . These eight dischargees are entitled to be
offered immediate - reinstatement to their former or
substantially equivalent jobs and to backpay from the date
of their application for reinstatement on December 7 and
10, 1973, respectively, to the date of the offer of
reinstatement, less any intermediate earnings.
Since at the time of the instant hearing picketing was
taking place and the strike was still in effect, the seven
dischargees who did not apply for reinstatement on
10 While no action was taken against Ignazo , Peter was discharged for
respecting the picket line, joining the strike, and for not reporting to work.
11 N.L. R.B. v. International Van Lines, 409 U.S. 48 (1972)
12 N. L.R.B. v. International Van Lines, supra.
13 Ibid.
14 Although I do not consider it a relevant issue in the instant case, I find
that the strike was economic in its inception and became an unfair labor
practice strike . As stated by the Board in the International Van Lines case,
supra . "The discharge of the aforesaid employees, which had the natural
December 7 and 10, 1973, shall be entitled to reinstatement
to their former or substantially equivalent jobs upon
unconditional application for reinstatement and with
backpay from the date of such application to the time of
their reinstatement or Respondent's offer of reinstatement,
less intermediate earnings.
It is clear that Respondent "committed unfair labor
practices when it fired its striking employees." 12 This is a
violation of Section 8(a)(3) and (1) and it is unnecessary to
determine whether "the discharged employees assumed the
status of unfair labor practice strikers ...." 13 As stated
by the Supreme Court:
Unconditional reinstatement of the discharged employ-
ees was proper for the simple reason that they were the
victims of a plain unfair labor practice by their
employer. Quite apart from any characterization of the
strike that continued after the wrongful discharges
occurred, the dischargees themselves were a sufficient
ground for the Board's reinstatement order. "Reinstate-
ment is the conventional correction for discriminatory
discharges."
Since we have an 8(a)(3) discriminatory discharge case
before us, the question of replacement or lack of replace-
ment of the dischargees is irrelevant. Further, the record
shows that after the discharges, Respondent hired four
"replacements." Whether these "replacements" were tem-
porary or permanent and which dischargees they purport-
edly replaced is not shown although in cases where
"replacement" is properly an issue , e.g., an economic
strike, the burden of proof thereof is upon the party
asserting that certain employees have been permanently
rep1aced.14
Contentions regarding the subsequent state of Respon-
dent's business and the availability of jobs for the
dischargees are appropriately to be considered as matters
of compliance. Absent availability of jobs because of
legitimate economic reasons, the dischargees are to be
placed on a preferential hiring list.
ORDER 15
Respondent H. S. Knitting Mills, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with reprisals if they engaged
in union or concerted activity protected by Section 7 of the
Act.
(b) Discouraging concerted activity or union activity on
behalf of Blouse, Skirt, and Sportswear Union Local
23 25, International Ladies' Garment Workers Union,
AFL-CIO or any labor organization, by discharging or
discriminating against strikers or employees who refrain
from work during a strike.
(c) In any other manner, interfering with, restraining, or
effect of tending to prolong the strike , converted what had commenced as
an economic walkout into an unfair labor practice strike "
15 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order, and all objections thereto shall be
deemed waived for all purposes
H. S. KNITTING MILLS 359
coercing employees in the exercise of their rights as
gurarnteed by Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer to Modesta Suriel, Lidia Nunez, Eladio Aquino,
Maria Rodriguez, Maria Martos, Elidia M. Crus, Peter Di
Girolamo, and Alice Rodriguez, immediate and full
reinstatement to their former or substantially equivalent
jobs, without prejudice to their seniority or other rights and
privileges, dismissing, if necessary, any employees hired
subsequent to the discharges of September 20, 1973.
(b) Upon application, offer to Maria Ferrera, Lolita
Delgado, Matilda Corria, Florenzo Lascano, Aluzangela
Tomaayas, Grace Martos, Maxima Batista, immediate and
full reinstatement to their former or substantially equiva-
lent jobs, without prejudice to their seniority or other rights
and privileges, dismissing , if necessary, any employees
hired subsequent to the discharges of September 20, 1973.
(c) Make whole the aforenamed employees for any losses
they may have suffered because of the discrimination
against them for the following periods and as more fully set
forth in the section of this Decision entitled "The
Remedy":
Modesta Suriel, Lidia Nunez, Eladio Aquino, from
December 7, 1973, to the date of the offer of
reinstatement; Maria Rodriguez, Maria Martos, Elida
M. Cruz, Peter Di Girolamo Alice Rodriguez, from
16 In the event that the Board's 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 be changed to read
December 10, 1973, to the date of the offer of
reinstatement.
Maria Ferrera, Lolita Delgado, Matilda Corria, Floren- -
zo Lascano, Aluzangela Tomaayas, Grace Martos,
Maxima Batista, from the date of their applications or
application, to the date of the offer of reinstatement.
(d) Preserve and, upon request, make available to the
Board, or its agents, for examination any copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary for determination of the amount of backpay due
and the rights of reinstatement under the terms of this
Order.
(e) Post at its office and plant in Brooklyn, New York,
copies of the attached notice marked "Appendix." 16
Copies of said notice, on forms provided by the Regional
Director for Region 29, after being signed by an authorized
representative of Respondent, immediately upon receipt
thereof, and be maintained by it for 60 consecutive day
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken to ensure that said notices
are not altered, defaced, or covered by other material.
(f) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."