Ja-Wex Sportswear, Ltd. and Iris Sportswear, Inc.

National Labor Relations Board - Board Decisions

Mar 26, 1982

260 N.L.R.B. 1229 (N.L.R.B. 1982)

JA-WEX SPORTSWEAR. LTD.
Ja-Wex Sportswear, Ltd. and Iris Sportswear, Inc.
and Knitgoods Workers' Union, Local 155, In-
ternational Ladies' Garment Workers' Union,
AFL-CIO. Cases 29-CA-8470, 29-CA-8573,
29-CA-8906, and 29-RC-5224
March 26, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On December 7, 1981, Administrative Law
Judge James F. Morton issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and
to adopt his recommended Order, as modified
herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Ja-Wex Sportswear, Ltd. and Iris Sportswear, Inc.,
New York, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Upon request, bargain with Local 155 as the
exclusive collective-bargaining representative of all
full-time and regular part-time production and
maintenance employees employed by Respondent
at its plant in New York, New York, including all
shipping and receiving employees and porters but
excluding all sample hands, office clerical employ-
ees, guards and supervisors as defined in the Act,
with respect to rates of pay, wages, hours, and
other terms and conditions of employment and, if
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951) We have
carefully examined the record and find no basis for reversing his findings.
' In his recommended Order, the Administrative Law Judge inadvert-
ently failed to provide that, if, after bargaining, the parties reached an
understanding, Respondent embody such understanding in a signed agree-
ment. We hereby modify his recommended Order to so provide
260 NLRB No. 172
an understanding is reached, embody such under-
standing in a signed agreement."
2. 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 unlawfully interrogate our
employees concerning their activities on behalf
of Knitgoods Workers' Union, Local 155, In-
ternational Ladies' Garment Workers' Union,
AFL-CIO.
WE WILL NOT threaten to close our plant to
discourage our employees from joining Local
155 or selecting it as their collective-bargain-
ing representative.
WE WILL NOT offer money or medical bene-
fits to our employees to discourage them from
supporting Local 155.
WE WILL NOT distribute literature on behalf
of United Production Workers Union Local
17-18, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, or offer to pay
dues to that union on behalf of our employees
or promise our employees benefits to induce
them to select Local 17-18 as their collective-
bargaining representative.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act.
WE WILL recognize, effective from Decem-
ber 19, 1980, and, upon request, bargain collec-
tively and in good faith with Local 155 as the
exclusive bargaining representative of all our
full-time and regular part-time production and
maintenance employees employed by us at our
New York, New York, plant, including all
shipping and receiving employees and porters
but excluding all sample hands, office clerical
employees, guards and supervisors as defined
in the Act, with respect to rates of pay, wages,
hours, and other terms and conditions of em-
ployment and, if an understanding thereon is
reached, embody such understanding in a
signed agreement.
JA-WEX SPORTSWEAR, LTD. AND IRIS
SPORTSWEAR, INC.
1229
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STAII-MFNT OF lTHE CASE
JAM}S F. MORTON, Administrative Law Judge: On
November 25, 1980, Knitgoods Workers' Union, Local
155, International Ladies' Garment Workers' Union,
AFL-CIO (herein called Local 155), filed the unfair
labor practice charge in Case 29-CA-8470 against Ja-
Wex Sportswear, Ltd. and Iris Sportswear, Inc. (herein
called Respondent). On January 28, 1981, the General
Counsel issued a complaint in that case against Respond-
ent alleging that it violated Section 8(a)(l) and (3) of the
National Labor Relations Act, as amended (herein called
the Act). On February 2, 1981, Respondent filed its
answer to that complaint in which it denied the allega-
tions of certain paragraphs of that complaint and omitted
references to the other allegations. The pleadings thus
placed in issue, with respect to that case, whether Re-
spondent unlawfully interrogated its employees concern-
ing their activities for Local 155; whether it threatened
to close its plant to discourage those employees from
joining Local 155; whether it unlawfully laid off two
named employees for 3 to 4 weeks in late 1980 because
of their support for Local 155; whether Respondent un-
lawfully distributed literature on behalf of United Pro-
duction Workers Union, Local 17-18; United Brother-
hood of Carpenters and Joiners of America, AFL-CIO
(herein called Local 17-18); and lastly whether Respond-
ent's floor lady, Maria Irezarry, was an agent of Re-
spondent in having participated in some of the foregoing
alleged violations of the Act.
On January 15, 1981, Local 155 filed a second unfair
labor practice charge, Case 29-CA-8573, against Re-
spondent, and on February 24, 1981, a complaint thereon
issued against Respondent alleging that it threatened its
employees with discharge, plant closure, and other repri-
sals to discourage their support for Local 155; that Re-
spondent engaged in further acts of unlawful interroga-
tion; and that Respondent offered medical benefits,
money, and other benefits to discourage its employees
from supporting Local 155. Respondent filed an answer
thereto on February 25, 1981, in which it placed in issue
those alleged unlawful acts.
On May 19, 1981, Local 155 filed a third unfair labor
practice charge, Case 29-CA-8906, against Respondent
and therein alleged that Respondent had unlawfully re-
fused to bargain collectively with it in violation of Sec-
tion 8(a)(1) and (5) of the Act. On June 26, 1981, a com-
plaint issued in that case which alleged, inter alia, that
Respondent's production and maintenance employees
comprised a unit appropriate for collective bargaining,
that Local 155 had been the majority representative of
those employees, that Local 155 has requested Respond-
ent to recognize it as the bargaining agent of those em-
ployees, and that Respondent has refused to do so not-
withstanding the further allegation that Respondent had
engaged in and is engaging in a course of conduct which
has precluded the holding of a fair election among those
unit employees. The concluding allegation of the com-
plaint in Case 29-CA-8906 was that Respondent in viola-
tion of Section 8(a)(1) and (5) has been obligated to rec-
ognize Local 155 as the bargaining agent of its produc-
tion and maintenance employees and that it has unlawful-
ly failed and refused to do so. Respondent filed its
answer thereto on June 29, 1981, and thereby placed in
issue the alleged majority status of Local 155, the alleged
request to bargain, and whether the issuance of a bar-
gaining order would be an appropriate remedy.
A related representation case matter has been consoli-
dated for hearing with the above three unfair labor prac-
tice cases. Local 155 had filed a petition in Case 22-RC-
5224 on December 3, 1980, whereby it sought to repre-
sent the production and maintenance employees of Re-
spondent. On December 9, 1980, an agreement for a con-
sent election in that case was approved. The election was
conducted pursuant to that agreement on January 8,
1981, in a unit of the approximately 20 full-time and reg-
ular part-time production and maintenance employees
employed by Respondent, including shipping and receiv-
ing employees and porters, but excluding all sample
hands, office clerical employees, guards and supervisors
as defined in the Act. Of the 20 valid votes cast in that
election, 8 were in favor of representation by Local 155
and 12 were against. Local 155 filed timely objections to
the conduct of that election. On February 27, 1981, a
Report on Objections issued in that case. Therein, all but
Objection 3 was dismissed. In Objection 3, Local 155
contended that Respondent had, in violation of the Act,
interrogated its employees, threatened plant closure, and
promised benefits to its employees to dissuade them from
voting for Local 155 and thereby interfered with the
conduct of the election. Based upon the administrative
investigation of that objection, it had been reported that
substantial and material issues of fact were presented
thereby, including issues of credibility pertaining to al-
leged conduct which occurred after the filing of the peti-
tion, and that, with respect to alleged conduct which oc-
curred prior to the filing of the petition, evidence there-
on may be considered insofar as it "lends additional
meaning" to postpetition conduct. On that premise a
hearing was directed with respect to the issues raised by
Objection 3.
By Order dated August 6, 1981, the three unfair labor
practice cases discussed above, together with the hearing
on objections in the related representation case, were all
consolidated for hearing. The hearing in these cases was
held on August 10 and on September 1 and 2, 1981, in
New York City.
Upon the entire record in these cases, including my
observations of the demeanor of the witnesses, and after
due consideration of the briefs filed by the General
Counsel and Respondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The pleadings and the stipulations received at the
hearing establish that Iris Sportswear, Inc., is the succes-
sor to Ja-Wex Sportswear, Ltd. As noted above, both
have been referred to herein collectively as Respondent.
On the basis of the pleadings, I find that Respondent is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. Based also on the
1230
JA-WEX SPORTSWEAR. LTD.
pleadings, I find that Local 17-18 is a labor organization
as defined in Section 2(5) of the Act, as is Local 155.
11. T-HE A.I IG(lI) UNFAIR IABOR PRACIICIS
A. Background
Ja-Wex Sportswear, Ltd., was formed in August 1977.
It occupied the second floor of a plant located in the
county of Queens and city and State of New York,
herein called the Queens plant. There it was engaged as
a manufacturer of knitted garments; it also assembled
knitwear on a contract basis. It had approximately 20
production and maintenance employees classified as
sewing machine operators, cutters, pressers, steamers,
porters, floor helpers, and general helpers. Its plant man-
ager, from October 1 to 31, 1980, was Morris Sobel.
In November 1980, Iris Sportswear, Inc., was formed
and, as noted above, it took over the operations of Ja-
Wex Sportswear, Ltd., at the Queens plant. It hired a
new plant manager, Robert Lambert. Lambert had
owned his own knitgoods business.
The events relevant to the instant cases began about 2
weeks before Iris Sportswear succeeded to the interest of
Ja-Wex Sportswear.
B. The Local 17-18 Literature
Respondent's president, Leonard Wexler, testified that
in mid-October 1980 he was visited by a representative
of Local 17-18. Wexler related that he accepted litera-
ture from the Local 17-18 representative and agreed to
distribute it to his employees. On his direct examination,
he stated that nothing further was said in his discussion
with the Local 17-18 representative. On cross-examina-
tion, however, he testified that he asked the Local 17-18
representative "(w]hat the costs would be and so forth,
and he [the Local 17-18 representative] replied." Wexler
further testified that the Local 17-18 representative told
him that the usual procedure is that an employer pays
half of the union dues and that the employees pay the
other half.
Wexler gave the Local 17-18 literature to the floor
lady, Maria Irezarry, and instructed her to pass it out to
the employees. Witnesses called by the General Counsel
testified without contradiction that Irezarry gave them
the literature in mid-October 1980 and told them that
Lennie Wexler had given the literature to her for distri-
bution to them. One of the machine operators, Violeta
Solis, testified that she went to Wexler's office on the
following day and, in essence, informed him that the em-
ployees were not impressed with the Local 17-18 "bene-
fits." She testified that Wexler told her that Local 17-18
is his new partner's union, and that, if the employees
brought in another union, he would close the factory.
Wexler, in his testimony, denied that he had any meeting
with any employee prior to the meeting described in the
next paragraph; he testified, as discussed in detail below,
that he did have a conversation with Violeta Solis alone
after he had met with a number of employees to discuss
the Local 17-18 literature. I credit the account of Vio-
leta Solis as she impressed me as being straightforward in
her testimony, whereas Wexler equivocated. Further, I
find incredible Wexler's testimony that he was informed
by the Local 17-18 representative of the usual procedure
governing dues payments. While it is possible that an in-
dividual who owns a garment assembly facility in New
York City would accept without question a representa-
tion by an official from a local affiliated with the Car-
penters' International Union that it is customary for an
employer to pay half the union dues for its employees, it
is not likely.
Another operator, Rosa Osorio, testified for the Gen-
eral Counsel that Wexler met with a number of the oper-
ators in his office in mid-October to discuss Local 17-18.
Osorio did the talking on behalf of the employees and
also translated Wexler's remarks into Spanish for the
benefit of her coworkers. Osorio testified that she told
Wexler that Local 17-18 did not give the employees any
benefits and that they did not want that union because it
was not worthwhile. She testified that Wexler then said
that that was the only "thing" he could afford and that
maybe later on he could give them other benefits. Mer-
cedes Gonzales, employed by Respondent as a helper,
testified that at that meeting Wexler stated in response to
a statement by Osorio that he could not afford any other
union because it would be too expensive. When she indi-
cated that her recollection was exhausted as to any other
statement at that meeting, she was asked if Wexler had
said anything about what he would do if another union
came in. Gonzales then stated that Wexler then said that
if another union came in he would close the plant. I do
not credit this testimony by Gonzales as it was not cor-
roborated by Osorio who did the translating for Wexler
and as none of the other employees who were present at
that meeting and who testified for the General Counsel
corroborated it.
As noted above, Wexler testified that after that meet-
ing he met separately with Violeta Solis in his office and
that he, in his discussion with her, merely repeated ev-
erything he had said at the meeting itself. I do not credit
that account as it is unlikely that the president of a small
company would have a meeting with a group of employ-
ees and use the services of one of them as a translator
and then immediately afterwards attempt to repeat in
English the same remarks which had just been translated
to that employee in Spanish by a coworker.
When the employees expressed to Wexler their dissat-
isfaction with Local 17-18, that Union faded out the pic-
ture and was not heard of again.
C. Alleged Threat by Respondent at the Outset of
Local 155's Organizing Drive
Alleged discriminatee Clara Fernandez testified that,
after the employees had informed Wexler that they did
not want to have anything to do with Local 17-18, two
employees, Rosa Osorio and Violeta Solis, "did some re-
search" about unions and the employees then had decid-
ed that Local 155 was the best union. According to Fer-
nandez, she then telephoned Local 155. An organizer
from that Union appeared outside Respondent's plant in
late October 1980.
Fernandez testified that on or about October 27 she
left the plant with Rosa Osorio and noticed that Re-
spondent's president then was "around in the street" and
1231
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that "he never used to be around at that time." She testi-
fied that she told Osorio that "Lennie" (i.e., Wexler) was
watching them. According to Fernandez, she and Osorio
then went into the car operated by one of the Local 155
representatives, where they signed cards for Local 155.
Osorio's account of that incident substantially corrobo-
rated Fernandez' testimony.
Respondent's president testified that he had no knowl-
edge whatsoever of Local 155's interest in organizing
Respondent's employees until after he had received a
copy of the unfair labor practice charge filed in Case 29-
CA-8470 by Local 155 on November 25, 1980. He testi-
fied also that he had been informed by his landlord, who
occupies the first floor of the building, that there were
people outside the building passing out literature and that
when he, Wexler, walked downstairs he had seen no one
there. Wexler further testified that on the following day
he had asked employee Violeta Solis if she knew any-
thing about any literature being distributed and that she
replied, "she thinks so," but she was not sure; he testified
also that she said then that she did not know anything
about it. I credit the account of Fernandez and Osorio as
they were mutually corroborative and as Wexler's ac-
count is confused, contradictory in part, and vague. Fur-
ther, Wexler's testimony that he was not aware of Local
155's interest when its organizer appeared outside Re-
spondent's plant is not persuasive. His landlord alerted
him to that organizing effort. He went immediately
downstairs, according to his own account, and ques-
tioned an employee about the distribution of literature.
His testimony that he received an equivocal answer is
not plausible, particularly as there is nothing to indicate
that he sought clarification or why he had not made an
effort to do so.
In early November 1980, eight other employees, in-
cluding alleged discriminatee Violeta Solis, signed Local
155 authorization cards at a meeting held at the home of
Rosa Osorio.
The General Counsel adduced testimony from several
witnesses respecting a meeting they said they had with
Respondent's president, Leonard Wexler, shortly after
the meeting at Osorio's house. Wexler testified that he
never had any such meeting with the employees. Osorio
testified that she, Clara Fernandez, Carmen Vasquez,
Miriam Cruz, Leonor Parra, and several other employees
were present at a meeting in Lenny Wexler's office a few
days after the group had signed Local 155 cards. She tes-
tified that Wexler told them that he knew about Local
155 but that he could not afford that Union because it
cost a lot of money. She testified that she could recall
nothing else that was said then. Counsel for the General
Counsel then asked her if she had given an affidavit
before the hearing and then asked her if she recalled
whether anything else was said at that meeting. There-
upon Osorio testified that Wexler had said at that meet-
ing that "he would rather close the place down instead
of having a union."
Another of Respondent's employees, Mercedes Gon-
zales, testified that that meeting was held in the shop
about 2 days after the Local 155 cards were first passed
out. (That testimony places the meeting in early Novem-
ber.) Fernandez related that she heard Wexler say then,
as she was passing by, that he could not afford Local
155. Her prehearing affidavit related that the meeting
was held in late Novenber (when a number of employees
were on layoff status).
Violeta Solis testified that on October 28, 1980,
Wexler came to her work station while she was working
and asked to speak to her after lunch. She testified that
after lunch she went to his office and met with him there
alone. She testified that Wexler told her, "[Tlhis union's
contracts were coming from his new partner" (apparent-
ly a reference to Local 17-18, and not to Local 155).
Solis testified further that Wexler told her that the em-
ployees should accept that union because "it was a good
contract." She was then asked by counsel for the Gener-
al Counsel if she recalled whether there was any talk
then about Local 155. In response, she said that Wexler
had said that he would not accept any other union and
that if another union were selected he would close the
factory. The record indicates that counsel for the Gener-
al Counsel thereupon sought to examine Violeta Solis re-
specting a meeting Wexler held with employees shortly
after Local 155 began its organizing drive. However, the
responses elicited from Solis thereon concerned a meet-
ing at which Wexler had urged them to select Local 17-
18 as their representative.
Clara Fernandez testified that, on October 28, Wexler
spoke to the employees outside his office and told them
that he could not accept Local 155 as the employees'
union, that he could only accept Local 17-18, and that
he would prefer to close his factory rather than have an-
other union in there.
Although the accounts offered by the General Coun-
sel's witnesses did not mesh and certain material aspects
of their testimony were developed only after some prod-
ding by counsel for the General Counsel, I credit them.
In particular, I find that Osorio and Fernandez were tes-
tifying as accurately as they could. Further, it is unlikely
that Wexler held no meeting with these employees, as he
contends, when his own account suggests strongly that
he wanted them to support Local 17-18. Wexler would
not have been indifferent to the employees' interest in
Local 155.
The following matters pertain to coercive statements
allegedly made by Respondent's agents after the repre-
sentation petition had been filed by Local 155 on Decem-
ber 3, 1980.
Employee Rosa Osorio testified that on December 19,
1980, and again on January 8, 1981, Respondent's presi-
dent, Wexler, told her while she was at her work station
that he would close down the plant if the employees se-
lected Local 155. Wexler testified that on October 19,
1980, he had told Osorio simply that he hoped he could
keep his business going if Local 155 won the election
and that he then assured her that he had no intention of
closing his plant. Wexler did not specifically deny Osor-
io's testimony as to the January 8 incident; in its brief,
Respondent alludes to Osorio's testimony as "transpar-
ent." I credit Osorio's account as she seemed to me to be
trying to recall the events accurately, whereas Wexler's
testimony was somewhat ambiguous and unpersuasive.
1232
JA-WEX SPORTSWEAR, LTD.
Maria Gonzales testified that on the morning of Janu-
ary 8, 1981 (the day of the election), Wexler told her
that he could not afford Local 155 because it was too ex-
pensive for him and that he would close the plant if it
won. Wexler did not specifically deny so advising Gon-
zales. His testimony, however, expressly controverts her
account as he stated he never discussed the election with
her. I credit Gonzales' account. While I did not credit a
certain aspect of her testimony on another point, as dis-
cussed above, I find that her account as to the January 8
incident is believable, particularly as Wexler for months
previously had expressed interest in Respondent's having,
what the General Counsel calls, an "affordable" union.
Jesus Pardo testified that he had worked for Respond-
ent as a porter from August 1980 until he was discharged
for cause on January 23, 1981. He had filed an unfair
labor practice charge against Respondent respecting that
discharge. That charge was either withdrawn by him or
was dismissed administratively. Pardo testified at the
hearing before me that, about I or 2 weeks before the
election, Wexler talked to him, through a Spanish trans-
lator (Maria Irezarry), about the election and that
"Bobby," whom he identified as the "new boss," was
also present then. The record establishes that Respondent
had engaged Robert Lampert as its new plant manager
on November 7, 1980. According to Pardo's account,
Wexler began the interview by telling him that he should
be grateful he had a job with Respondent and reminded
him that he had a social security number when he had
none when he began work for Respondent. Pardo related
that Wexler told him that "a person who is not thankful
is a person who causes horror. " ' Pardo testified that
Wexler asked him, through Irezarry, if he was going to
vote for Local 155 and that he, Pardo, told Wexler that
he would vote for him (i.e., Wexler). Pardo related that
Wexler then promised him money, without specifying
any amount, and that Wexler also stated that, if Local
155 won the election, he (Wexler) would have to "close
the factory within two months."
Wexler testified that he never spoke to Pardo about
the election or offered him money to influence his vote.
Respondent did not call Plant Manager Robert Lampert,
or floor lady Maria Irezarry to rebut Pardo's account of
that meeting.
I credit Pardo's version and not the uncorroborated,
summary denials of Wexler.
Pardo also testified that floorlady Maria Irezarry had,
on several occasions, including two in early January
1981, told him that Wexler would close the factory if
Local 155 came in. As noted above, Irezarry did not tes-
tify at the hearing. The record, however, establishes that
she assigns to the operators the work they do; that she
rarely does production work; that she is salaried like
'Respondent has observed in its brief that this is a "classic line" and
that Pardo's testimony was "patently absurd." I do not reject his account
because the record in this case contains a horrendous English language
sentence which translates Pardo's testimony given at the hearing in Span-
ish. I have no doubt that Wexler did not use those words but that is not a
basis to reject Pardo's account. The essence of Pardo's testimony is that
Wexler expected him to be appreciative and that he should not be an in-
grate. I will only surmise that the use of Spanish vernacular to convey
that sentiment may require a stilted translation, if an appropriate idiom-
atic expression in English is not substituted for the literal Spanish.
Wexler and the plant manager, unlike the operators who
are hourly paid; and that she has, according to both the
uncontroverted and credited testimony, assisted Wexler
in endeavoring to persuade employees to accept Local
17-18 and to reject Local 155.
As Pardo's accounts respecting his conversations with
Irezarry in early January 1981 were not controverted
and as I find his general demeanor believable, I credit his
testimony thereon.
D. The Alleged Discriminatory Layoffs of Violeta
Solis and Clara Fernandez
The General Counsel contends that Violeta Solis was
laid off on November 14, and not recalled until early De-
cember 1980, because of her activities in support of
Local 155 and that Clara Fernandez was laid off from
November 21 to December 11, 1980, for the same
reason. In support of those allegations, they testified, as
noted above, that they participated in activities in sup-
port of Local 155 in signing cards and in attending meet-
ings. In addition, they testified without contradiction that
they also passed out Local 155 authorization cards and
obtained signatures from several employees. Both Fer-
nandez and Solis testified that prior to late 1980 they had
never been laid off for any extended period of time by
Respondent.
The parties stipulated at the hearing to the admission
of documentary material which establishes that Respond-
ent had, in late October and early November 1980, laid
off for economic reasons six employees, other than Solis
and Fernandez. In addition, the record testimony estab-
lishes that Rosa Osorio was laid off for a week in No-
vember 1980 as was another employee, Rosa Ramos.
There is no allegation that the layoff of Rosa Osorio was
in any way discriminatory, although, as is apparent from
the foregoing recital of facts, she was a key spokesman
for the employees and it was in her house that Local
155 held its first union meeting. It is uncontroverted too
that, in the second week of December 1980, all of the
laid-off employees, including Fernandez and Solis, were
recalled and that on December 8, 1980, Respondent also
hired another sewing machine operator. It appears that,
during their layoff period, floorlady Maria Irezarry per-
formed principally routine production work; the only
time she had ever worked on sewing machines before
was in making samples or in demonstrating to new em-
ployees how to operate the machines.
Respondent offered into evidence records of its gross
sales for the months of October, November, and Decem-
ber, 1980, which showed a marked decrease in sales
volume. The evidence is uncontroverted that the last
part of each calendar year is a very slow period for Re-
spondent's business. Respondent's president testified
without contradiction that he had taken out a second
mortgage on his home to finance Respondent's oper-
ations.
E. Local 155's Alleged Majority Status
It is undisputed that in mid-November 1980, Respond-
ent had 28 production and maintenance employees in its
employ and that Local 155 had signed authorization
1233
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards from 16 of these. Two other unit employees signed
Local 155 authorization cards shortly before their recall
to work on December 11, 1980.
111. ANAI.YSIS
A. Alleged Unlawful Interrogation, Threats, and
Other Coercive Acts
As noted above, the pleadings placed in issue the ques-
tion as to whether Maria Irezarry acted as an agent of
Respondent in distributing literature for Local 17-18 and
engaged in other acts related to the union activities of
Respondent's production and maintenance employees.
The evidence firmly establishes that Irezarry acted as
Respondent's agent. The controlling principle of law is
clear. An employer is responsible for the conduct of an
employee where, from all of the relevant circumstances,
it leads the employees to believe reasonably that the em-
ployee in question was reflecting company policy, and
was speaking and acting for management. 2 The uncon-
troverted facts disclose that Irezarry distributed the
Local 17-18 literature in Respondent's plant and in-
formed employees she was doing it at the request of Re-
spondent's president. Respondent's president later con-
firmed this and in fact testified that he instructed her to
distribute the literature. The credited testimony further
discloses that the remarks that Irezarry made, to the
effect that Wexler said he would close the plant if any
union other than Local 17-18 came in, were also said by
Wexler himself to the employees. The other relevant fac-
tors clearly indicate that the employees had a reasonable
basis for believing that Irezarry acted on behalf of man-
agement. Thus, she was like Wexler and unlike the pro-
duction employees on salary; she had the job title, floor
lady; she distributed work to the operators to insure that
they kept busy; she regularly translated the remarks of
Wexler from English into Spanish for the employees; she
virtually did no regularly production work; and she,
unlike the employees, did not punch a timecard. I there-
fore conclude that at all times herein Irezarry acted as an
agent for Respondent.
The credited evidence further establishes that Re-
spondent, through Wexler and also through Irezarry, dis-
tributed literature on behalf of Local 17-18 which con-
tained a listing of benefits available to the employees,
and that Respondent promised benefits to and urged em-
ployees to select Local 17-18 as their bargaining repre-
sentative and offered to pay half of Local 17-18's dues.
By promising these benefits and urging its production
and maintenance employees to select Local 17-18 as
their bargaining representative, Respondent interfered
with, restrained, and coerced its employees with respect
to the rights guaranteed them under Section 7 of the
Act, and thereby Respondent violated Section 8(a)(l) of
the Act.3
2 Wm. Chalson Co. Inc., 252 NLRB 25 (1980,; EMR Photoelectrlic a
Division of Sangamo Weston. Inc.. 251 NLRB 1597 (1980); Community
Cash Stores, Inc., 238 NLRB 265 (1978)
3 Professional Building Maintenance Division of PBM Industries. Inc., 217
NLRB 127 (1975)
The repeated threats by President Wexler to close Re-
spondent's plant if the employees chose a labor organiza-
tion other than Local 17-18 as their collective-bargaining
representative were separately violative of Section
8(a)(1) as were the statements by Irezarry to the same
effect.
I further find that Respondent, by Wexler and Ire-
zarry, unlawfully interrogated employees Solis and
Pardo respectively, and Respondent thereby separately
violated Section 8(a)(l) of the Act.
The offers of money and promise of medical benefits
made by Wexler to Pardo shortly before the election
constituted additional violations of Section 8(a)(1).
B. The Objections
The Report on Objections which had issued in Case
29-RC-5224 recited that the merits of Objection 3 are
referred to me for hearing and for ruling and that there-
after Case 29-RC-5224 shall be severed and transferred
to the Regional Director for Region 29 for further pro-
cessing pursuant to the agreement for a consent election
approved in that case. Based on the credibility resolu-
tions made above and the related findings that Respond-
ent violated Section 8(a)(1) of the Act by having threat-
ened to close its plant, interrogated employees, and
promised benefits to them in order to discourage them
from supporting Local 155, I find that Respondent en-
gaged in conduct which interfered with the rights of its
production and maintenance employees to select freely in
a Board-conducted election whether or not they desired
to be represented by Local 155 for purposes of collective
bargaining. I shall, to be consistent with that determina-
tion, recommend that Objection 3 be sustained, and that
the results of the election held on January 8, 1981, be set
aside.
C. The Alleged Discriminatory Layoffs
The evidence establishes that Violeta Solis and Clara
Fernandez actively supported Local 155 and, in that
regard, that they solicited authorization cards for that
Union. They were laid off summarily, shortly after Local
155's advent, and were not recalled until about 4 weeks
later. They had never previously experienced such a
lengthy layoff while in Respondent's employ. Those fac-
tors, taken in context with Respondent's unlawful at-
tempts to dissuade its employees from supporting Local
155, satisfied me that the General Counsel had made out
a prima facie case that Solis and Fernandez had been dis-
criminatorily laid off in violation of Section 8(a)(l) and
(3) of the Act and that therefore the burden of coming
forward with evidence to rebut that evidence was placed
upon Respondent.
Respondent thereupon established that eight other em-
ployees had also been laid off in late 1980 and that many
of those employees were also supporters of Local 155.
There is no contention that the layoffs of those other em-
ployees were violative of Section 8(a)(1) and (3). Fur-
ther, the General Counsel's witnesses conceded that the
late months of each calendar year are normally slow
months for Respondent and that the period from October
to December 1980 was unusually slow. While the Gener-
1234
JA-WEX SPORTSWEAR, LTD.
al Counsel contends that Respondent had hired two new
employees during the layoff of Solis and Fernandez, it
appears that those two new employees began working
for Respondent at or about the same time that all of the
laid-off employees, including Solis and Fernandez, were
recalled to work in mid-December 1980. Lastly, Re-
spondent placed into evidence sales figures for October
through December 1980, and these showed that there
was a large drop in the volume of sales for November as
compared to October and also for December as com-
pared to November and October. It is evident, and I thus
find, that Respondent has discharged its obligation to
come forward with sufficient evidence to rebut the Gen-
eral Counsel's prima facie case.
The General Counsel did not then produce any evi-
dence that the reason proffered by Respondent was pre-
textual. In that regard, it is noted that the General Coun-
sel did not place into evidence sales figures or other pro-
duction records for previous years in an effort to show
that Respondent seized upon a normal fall off in business
to lay off two union supporters. I therefore conclude
that the General Counsel has failed to establish by a pre-
ponderance of the credible evidence that Respondent
laid off Solis and Fernandez for several weeks in late
1980 because of their support for Local 155.
D. The Bargaining Order Remedy
The Board has noted that the Supreme Court affirmed
the authority of the Board to issue a bargaining order
not only in "exceptional cases" marked by "outrageous
and pervasive" unfair labor practices which eliminate the
possibility of holding a fair election, but also in "less ex-
traordinary cases marked by less pervasive practices"
where there is a showing that at one point a union had a
clear majority and where the Board concludes that the
extensiveness of the unfair labor practices committed by
Respondent "have the tendency to undermine majority
strength and impede the election processes." 4 The Board
has also observed that a warning by an employer that an
operation will be shut down if employees select union
representation is considered "one of the most potent in-
struments of employer interference with the right of em-
ployees to organize" and that, since most employees are
dependent on their jobs for their livelihoods, threatening
to eliminate their place of employment is sufficiently seri-
ous to justify a bargaining order, even standing alone.'
The repeated threats to close made by Respondent, in-
cluding those on the very morning of the election and
the other violative acts as found above, taken in context
with the small size of Respondent's work force, are
clearly sufficient to create an unacceptable risk that any
election now held would not reflect a choice made free
of coercive influence. Therefore, I find that Respondent's
unfair labor practices destroyed Local 155's majority
I Hirchiner Manufacturing Company, 243 Nl RB 927, 928 (1979) Re-
spondent contends that at most the General Counsel has demonstrated
only a series of minor violatirns and urges that established law precludes
the issuance of a bargaining order Were I to accept that view, I would
also accept the cases cited by Respondent as controlling thereon, t g,
Walgreen Company, 221 NtLRB 1096 (1975) IThe violations in the intant
cases, however, are more serious than those found in the decisilns cited
by Respondent
'Slim Baker Trucking Company, 241 NLRB 121, 122 (1979)
status and were sufficiently serious and pervasive in
character to preclude the holding of a fair election and
warrant the issuance of a bargaining order remedy.
Under established principles,6 the bargaining order shall
be dated from December 19, 1980, the first date on
which it was shown that Respondent renewed its coer-
cive campaign after Local 155 had obtained signed au-
thorization cards from a majority (18 of 28) of the em-
ployees employed in the unit found appropriate in Case
29-RC-5224; i.e., all full-time and regular part-time pro-
duction and maintenance employees, including shipping
and receiving employees and porters employed by Re-
spondent at its Queens plant, but excluding all sample
hands, office clerical employees, guards and supervisors
as defined in the Act.
The complaint in Case 29-CA-8906 alleges that on
December 8, 1980, Local 155 had requested Respondent
to bargain collectively with it as a representative of the
employees in the unit found appropriate above and that
complaint alleged also that, since December 8, 1980, Re-
spondent refused to bargain thereon and thereby violated
Section 8(a)(l) and (5) of the Act. Respondent's answer
denied that Local 155 had ever so requested to bargain.
No evidence was offered at the hearing to establish that
Local 155 made such a bargaining request. The fact that
Local 155 filed a petition for an election does not serve
to relieve it of the obligation to have made such a re-
quest as the Board has held that the mere filing of such a
petition does not constitute the requisite demand to es-
tablish a violation under Section 8(a)(5) of the Act.7 In
the absence of any evidence of such a request, I find no
merit to the General Counsel's contention that Respond-
ent violated Section 8(a)(5) of the Act. 8 Respondent has
separately urged that a bargaining order should not issue
in view of the amount of employee turnover since the
election on January 8, 1981. The Board has given careful
consideration to that contention.9 For essentially the
same reason set out in that decision, I reject Respond-
ent's present contention.
CONC LUSIONS Ot LAW
I. Ja-Wex Sportswear, Ltd. and Iris Sportswear, Inc.
(herein referred to jointly as Respondent), is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Knitgoods Workers' Union, Local 155, International
Ladies' Garment Workers' Union, AFL-CIO, and
United Production Workers Union, Local 17-18, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, are labor organizations within the meaning of
Section 2(5) of the Act.
3. At all times material herein, Maria Irezarry has been
an agent of Respondent.
4. By unlawfully interrogating its employees concern-
ing their activities on behalf of Local 155; by distributing
literature for Local 17-18 and offering to pay dues to
h rodng Port, Inc, 219 Nl RB 298 (1975)
J J .Nhberrv Co., a Wh(o/y Own-id Suhsidror of fc( ror C (rpfora-
tron, 249 NLRB 991, 1(1l) (1980)
"Crande, Beer Dtrithurorm. Inc, 247 NILRB 1280) (19qO)
,4rmcor [ndustriler Inc, 227 NLRB RI141 1977!
1235
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 17-18 on behalf of its employees; by offering bene-
fits to its employees to induce them to select Local 17-18
as their bargaining representative; by threatening to close
its plant should they select Local 155 or any other labor
organization as their collective-bargaining representative;
and by offering money and medical benefits to employ-
ees to discourage them from supporting Local 155, Re-
spondent has violate Section 8(a)(1) of the Act.
5. Respondent did not violate Section 8(a)(l) and (3)
of the Act by laying off employees Violeta Solis and
Clara Fernandez in late 1980 and did not violate Section
8(a)(5) of the Act as there was no evidence that Local
155 had requested Respondent to bargain collectively
with it.
6. The unfair labor practices described above in para-
graph 4 are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
7. An appropriate remedy in the circumstances of this
case for the foregoing unfair labor practices is to require
Respondent to bargain collectively with Local 155 as the
exclusive representative for purposes of collective bar-
gaining of all full-time and regular part-time employees,
including shipping and receiving employees and porters
employed by Respondent at its Queens plant, but exclud-
ing all sample hands, office clerical employees, guards
and supervisors as defined in the Act.
8. Objection 3 filed in Case 29-RC-5224 to the elec-
tion held on January 8, 1981, should be sustained and the
results of that election set aside.
9. As the issuance of a bargaining order to Local 155
precludes a finding that a question concerning represen-
tation exists with respect to the unit of employees found
appropriate herein, the petition in Case 29-RC-5224
should be dismissed, if not withdrawn.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER '0
The Respondent, Ja-Wex Sportswear, Ltd. and Iris
Sportswear, Inc., New York, New York, its officers,
agents, successors, and assigns, shall:
'o 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.
1. Cease and desist from:
(a) Unlawfully interrogating its employees concerning
their activities on behalf of Knitgood Workers' Union,
Local 155, International Ladies' Garment Workers'
Union, AFL-CIO (herein called Local 155).
(b) Soliciting, offering to pay the dues of, and promis-
ing to grant benefits to its employees to induce them to
select as their collective-bargaining representative United
Production Workers Union Local 17-18, United Brother-
hood of Carpenters and Joiners of America, AFL-CIO.
(c) Threatening to close its Queens plant to induce its
employees to refrain from joining Local 155.
(d) Offering money and medical benefits to induce its
employees not to support Local 155.
(e) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Local 155
as the exclusive representative of all full-time and part-
time production and maintenance employees employed
by Respondent at its plant in New York, New York, in-
cluding all shipping and receiving employees and por-
ters, but excluding all sample hands, office clerical em-
ployees, guards and supervisors as defined in the Act.
(b) Post at its New York, New York, plant copies of
the attached notice marked "Appendix." tt Copies of said
notice, on forms provided by the Regional Director for
Region 29, after being duly signed Respondent's author-
ized representative, shall be posted by Respondent imme-
diately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) 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.
The allegations that Respondent violated Section
8(a)(3) and (5) of the Act are dismissed.
Case 29-RC-5224 is severed and returned to the Re-
gional Director for Region 29 pursuant to the Report on
Objections issued in that case.
" 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1236