Salinas Mfg. Corp.

National Labor Relations Board - Board Decisions

Jun 13, 1974

211 N.L.R.B. 573 (N.L.R.B. 1974)

SALINAS MFG. CORP.
Salinas Mfg. Corp . and Shuron Mfg. Corp. and
International Ladies' Garment Workers' Union,
AFL-CIO and Local 600-601, ILGWU. Cases
24-CA-3355 and 24-RC-4987
June 13, 1974
DECISION AND ORDER AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 29, 1974, Administrative Law Judge
Jennie M. Sarrica issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the
Employer filed a brief in answer to the General
Counsel's exceptions.
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 her recommended Order.
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 and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
A's we have adopted the Administrative Law
Judge's recommendation to overrule the Union's
Objection 3 and as we find that the other objections
lack merit , we shall certify the results of the election.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for the International
Ladies' Garment Workers' Union, AFL-CIO and
Local 600-601, ILGWU, and that said labor organi-
zation is not the exclusive representative of all the
employees in the unit herein involved within the
meaning of Section 9(a) of the National Labor
Relations Act, as amended.
I Unless otherwise indicated , all dates are in 1973.
DECISION
STATEMENT OF THE CASE
573
JENNIE M. SARRICA, Administrative Law Judge: Upon
due notice, this consolidated proceeding under Sections 9
and 10(b) of the National Labor Relations Act, as
amended (29 U.S.C. § 151, et seq. ), hereinafter referred to
as the Act, was tried before me at Hato Rey, Puerto Rico,
on January 15 and 16, 1974. Hearing in Case 24-CA-3355
was pursuant to a complaint issued October 16, 1973,1
based on charges filed on May 29, presenting allegations
that Salinas Mfg. Corp. and Shuron Mfg. Corp., hereinaf-
ter called Respondent, engaged in conduct violative of
Sections 8(a)(1) and 2(6) and (7) of the Act, and
Respondent's answer denying those allegations; and in
Case 24-RC--4987, was pursuant to an order directing
hearing on objections issued August 17, by the National
Labor Relations Board. All parties were present and
participated in the hearing.
Based on the entire record, including my observations of
witnesses and after due consideration of the arguments
presented and Respondent's brief, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION
Respondent, incorporated in Puerto Rico, and engaged
at Salinas, Puerto Rico, in the manufacture of lingerie and
related products, annually purchases and receives from
businesses located in the United States and other places
outside Puerto Rico goods and materials valued in excess
of $50,000. Respondent is now, and has been at all times
material herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE UNION
International Ladies' Garment Workers' Union, AFL-
CIO, and Local 1600-601 ILGWU, hereinafter called
'the Union, who is the Charging Party and the Petitioner in
the respective consolidated proceedings , is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNLAWFUL CONDUCT
A. The Issues
The questions raised in connection with the unfair labor
practice proceeding involve the supervisory status of
certain persons and whether unlawful threats were made
by persons representing Respondent.
The only matter for consideration in connection with the
representation proceeding is whether Respondent engaged
in conduct alleged in Objection 3, in the Union's objections
to conduct affecting results of representation election in
which it is asserted that:
On or about April 1, 1973, an Employer's supervisor
told an employee that the plant will be closed if the
211 NLRB No. 83
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union won the election , while the employee was at his
working site.
B. Background
The Union organizing campaign lasted approximately 3
months. A petition was filed on March 2 , and a Board
election was conducted on April 5. Both the Union and the
Employer distributed campaign literature . A committee of
employees also launched a campaign against organization
utilizing both radio and television , with individual partici-
pants appearing in person and stating their views.
Respondent 's parent corporation and Compex Manufac-
turing are both subsidiaries of Kayser Roth Corporation.
The Union herein is the same as the one involved at
Compex, located at Coamo, within a 30-minute drive from
Salinas . At the time of the election at the Respondent's
plant , employees at Compex had been on strike for some 7
or 8 months and the factory had remained closed by the
strike . Information concerning the strike had been reported
in the local newspapers and some of Respondent's
employees lived near Coamo so that employees were aware
of the situation at Compex.
Total employment at Respondent 's plant is between 260
and 300 , including management and supervisory personnel
and clericals . The operators are assigned to sections of
from 30 to 50 employees , under the supervision of a section
supervisor who reports to a head supervisor.
It is admitted that during the time material herein, Plant
Manager Eduardo Delbrey and Supervisors Milagros
Caraballo, Perseveranda Rodriguez , Noelia de Jesus, and
Lydia Vega possessed statutory supervisory authority.
Respondent denies that Enrique Manuel Cruz Fuentes,
head mechanic, or Palmira Rodriguez possessed such
authority.
C. Disputed Supervisory Status
Enrique Manuel Cruz Fuentes is known among the
machine operators as Mane . Sonia Beltran testified she had
observed him sending other mechanics to repair machines.
Witness Zoraida Gonzales referred to him as chief
mechanic and stated she had heard him giving orders to
other mechanics.
Cruz testified that during the relevant period, as head
mechanic for Respondent, he "supervised" the three other
mechanics . However, most of his working time was spent
fixing machines . He was the most experienced mechanic
and whenever changes of machines or changes in settings
on machines were required Cruz instructed the other
mechanics as to what was needed to be done and how this
could be accomplished . To him these were routine matters.
Each mechanic was responsible for the function of the
machines in the section where he worked and all
performed the same type of work. Cruz gave assistance
when help was needed by one of these mechanics. If an
emergency arose , Cruz would take over that section to
handle the problem and the mechanic regularly handling
work in that section would take over the section where
Cruz had been working . Whenever a mechanic encoun-
tered a mechanical problem he did not know how to
handle he would contact Cruz who would determine what
needed to be done. Problems other than mechanical were
referred to the general manager . Cruz testified he had no
authority to hire or fire employees and no authority to
excuse an employee from work or authorize overtime
unless specific orders to that effect were given to him.
Although Cruz was not included among the list of
eligible voters in the election , this was by stipulation and
does not constitute a determination or a concession of
supervisory status . Nor does Cruz's own characterization
of his job as "supervisor" determine his statutory status.
On the basis of the testimony presented I find that Cruz
did not, during the relevant period, possess any of the
statutory authority indicative of supervisory status . Rather,
his instructions and orders involved routine matters related
to his particular skill as the most experienced mechanic. I
find that Cruz was a leadman and was not a supervisor
within the meaning of Section 2(11) of the Act.
Palmira Rodriguez had the title of assistant supervisor in
the section of operators supervised by Olga Lydia
Martinez . This section is divided among three -assistant
supervisors who have the responsibility of distributing
work to the operators. Palmira Rodriguez was responsible
for supplying work to about 20 operators. Zoraida
Gonzalez testified that Palmira worked as forelady in the
section next to the one where she worked and that in
addition to giving out work she has heard Palmira "give
orders to employees ." There is no evidence of what type of
orders was meant by Gonzalez' testimony. Palmira testified
that she does not give the operators she services orders or
directions because "we have a supervisor."
Palmira's name was originally on the eligibility list
prepared for the election but was eliminated by stipulation
of the parties. Both before and after the election she
attended meetings conducted by Respondent's attorney to
instruct supervisors as to how they were to conduct
themselves with respect to the organizing campaign and
the union activity of the employees.
I find neither the eligibility list stipulation nor attend-
ance at meetings at which supervisors were instructed as to
appropriate conduct during the campaign sufficient to
establish supervisory authority. Nor do I find in the
testimony describing her duties sufficient evidence to
establish that Palmira Rodriguez possesses any statutory
supervisory authority.
As I have found that neither Enrique Manuel Cruz
Fuentes nor Palmira Rodriguez is a supervisor within the
meaning of the Act, and as there is no evidence
establishing that either was otherwise acting as an agent of
Respondent, I shall not consider testimony as to any
statements they may have made to other employees.
D. The Alleged 8(a)(1) Conduct
The allegation in the complaint is that on April 1, and on
certain unknown dates preceding the election , supervisors
of Respondent threatened employees at the plant with
closing of the plant or other reprisals if the Union won the
election.
Sonia Beltran testified that about a week before the
election , while she was at the machine , she was conversing
with a fellow employee. Supervisor Noelia de Jesus came
over to them and asked what they were talking about.
SALINAS MFG. CORP. 575
Sonia Beltran told her it was about the Union. De Jesus
reminded the operators that during working hours they
should -neither .speak for or. against the Union, and added
that they should keep in mind the example of the girls from
Coamo; that due to the fact that the Union had won the
election the factory had been closed; that the same thing
could happen to them; that if the Union won they would
close the factory and employees would have no jobs. On
cross-examination , Beltran related that when she admitted
the operators had been talking about the Union de Jesus
said they should think over what they were going to do
because they should consider the example of the girls in
Coamo who had a union and did not have a factory; that
the same thing would happen to them-if the Union won,
the plant would be closed. Beltran could not recall the
identity of the fellow employee working next to her and
involved in this incident.
Beltran further testified that a few days after the above
conversation with de Jesus she and a group of employees
were on their break when supervisor Lydia Vega, who was
present, commented that at Salinas Manufacturing they
did not need a union because nobody was sent home on
layoff and that employees should use as an example the
girls from Coamo where they had a union but no factory
and that the same thing could happen there: employees
would have a union and "they" would close the factory.
With respect to the situation at the Compex plant at
Coamo, Beltran testified:
Q. When you mention the factory at Coamo, what
are you referring to?
A. At that time there was the Compex, which they
closed because of the union. -
Q. Did you have knowledge at the time that that
factory had been closed down?
A. That it was on strike.
Q. Do you know if that factory was operating
during the strike or if it had shut down?
A. They had closed down.
She further testified she knew at the time of the election at
the Salinas plant that employees had been on strike at
Compex for about 6 months and that this was the reason
the Compex plant was closed. The supervisors did not tell
her this. She knew it, and she knew the Union involved was
the same one organizing the employees of Respondent.
Although Beltran testified that those two occasions were
not the only times she heard the same supervisors speak
about what would happen at the company if the Union
won the election, and indicated that such incidents were
numerous, she was unable to fix the time or circumstances
of any such occasion or what was said. At first she stated
she could not remember the various occasions, but the
same things were "given to be understood." Finally, she
fixed the time as 3 or 4 weeks before the election and
testified that Vega had said the factory at Salinas did not
need a union because no one there was laid off, and "what
was the use for us to have a union and have the plant
closed down," referring to Coamo.
Neolia de Jesus, who is no longer in Respondent's
employ, appeared under subpoena. She testified that she
knew Beltran , who worked in her section, and knew that
Beltran was in favor of the Union through overhearing
conversations among employees during their break peri-
ods. She denied that she made any of the comments related
by Beltran concerning the plant closing if the Union won
the election, either to Beltran or any other employee. De
Jesus testified that it was a plant rule that employees were
not supposed to talk during working time and it was her
job to enforce company rules, but on no occasion during
the relevant period did she caution employees against
talking about the Union during working hours. She
testified further, that supervisors were under instructions
from the Respondent's lawyers as to what they were
permitted to say to employees and what they could not say
during this period. De Jesus also denied she had heard any
rumors to the effect that if the Union won the election the
plant would be closed, but stated she knew Manager
Delbrey had called a meeting because of such rumors. She
testified that she had not been questioned by the Board
agent when she was interviewed after the election about
any such statement she may have made to Beltran and did
not speak with Respondent's attorney concerning matters
covered by her testimony until the day on which she was
testifying pursuant to subpoena.
Lydia Vega denied she made statements attributed to her
by Beltran either to Beltran or any other employee. She
testified she had heard rumors among employees that if the
Union won the factory would be closed and told
employees this was not true. She was also present when
Delbrey told employees the rumor was not true. She
testified that supervisors were under instructions from
Respondent's attorneys as to what they could not say and
that whenever an employee commented to her about the
Union she chose to ignore them.
Rosa Santiago, who worked at the machine next to
Beltran during the period preceding the election, testified
that she never heard Supervisor de Jesus say anything to
Beltran to the effect that if the Union won the election the
plant would be closed, or to remember the example of the
Compex plant in Coamo, etc. Iris Grin, who worked two
lines away from Beltran, gave similar testimony.
Zoraida Gonzalez, an operator who worked under the
supervision of Milagros Caraballo, testified that just before
starting time while employees were at their work stations a
few days before the election, Caraballo told her and
Marina Maldonado that if the Union won the election the
same thing that happened at Compex could happen to
them. Gonzalez further testified that Caraballo spoke to
her every day about the Union during the month preceding
the election and as frequently as four or five times a day,
and that this was the theme every time she spoke. These
conversations took place at their work station, in the ladies'
room, in groups during break periods, and at lunch in front
of the plant. Gonzalez asserted that Beltran had to have
heard what Caraballo said because she was in the group
gatherings, and that Marina Maldonado was present when
such conversations took place at their work station or in
the ladies' room.
Marina Maldonado was served a subpoena by the
General Counsel but did not testify . Beltran, who testified,
did not mention any comments whatsoever made by
Supervisor Caraballo.
Caraballo denied making any of the statements attributed
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to her. by Gonzalez. She testified that she lunches daily
at her mother's home, and that although supervisors have a
separate ladies room, on occasion she uses the employees'
ladies room and has encountered Gonzalez there on
several occasions when the latter and other employees were
speaking about the Union. Caraballo testified that supervi-
sors were instructed by Delbrey and by Respondent's
attorneys they should make no comment either for or
against the Union. She knew that Gonzalez was for the
Union because the latter openly identified herself with the
union campaign and on several occasions she was required
to speak to Gonzalez to stop the latter from distributing
union literature during working hours. Therefore, she
avoided conversations with Gonzalez because of the
instructions to supervisors. Caraballo heard rumors among
the operators that the plant would close if the Union won
the election and reported such rumors to Delbrey who
called supervisors together and instructed them to refer
any employees with questions to him. He also held
meetings with employees in the cafeteria. Caraballo further
testified that there is a plant rule against employees talking
during working time. She reported to Delbrey that
Gonzalez was talking about the Union during working
hours. Delbrey told her that in order to avoid problems she
should ignore Gonzalez.
Ada Irma Zayas, who worked next to Gonzalez, and
Josefa Quinones, who works five or six machines behind
her, testified they had never heard Caraballo tell Gonzalez
or any other employee that if the Union won the election
the plant would be closed, or to remember what happened
at Compex.
Delbrey is no longer employed by Respondent. During
the Union's campaign he was general manager . Beginning
about 3 weeks before the election, Delbrey testified, he
received inquiries from individual employees asking
whether it was true that if the Union won the election the
factory would close down. He avoided asking those
individuals the source of such rumors but did inquire
whether a supervisor had made such statements and had
received a reply in the negative. He advised the individual
questioner that the rumor was not true, and as support
cited the new machines that were being brought into the
plant. Later, when he had received approximately 10 such
inquiries within the period of 5 days, Delbrey decided to
speak to employees as a group about it. He held one
general meeting 5 days before the election followed by
meetings with employees in groups of 15 to 20. Delbrey
testified that at such meetings he told employees not to pay
attention to threats of any kind and that the rumors of
plant closing were not true . He informed the employees
that the plant was currently receiving new equipment. He
2 Zayas recalled that Delbrey talked about new machines but denied that
he said anything about the Union when admittedly he was discussing the
election arrangements . Quinones , who attended one of the smaller group
meetings, denied she heard Delbrey mention the rumors or new machinery.
Mojica testified that she did not hear Delbrey say anything about the rumor
but also testified that after he spoke about the election regulations
employees began asking questions . They asked Delbrey if the rumors were
true, and he told them , on the contrary , they were going to get more work to
do; the Company was bringing in new machines for them. She then
explained that Delbrey just answered questions . Mateo asserted that
Delbrey said nothing about the rumor but did say the Company was going
to bring in new machinery , employees were going to have better working
also instructed them that if anyone knew of any person,
employee or supervisor, who was saying that the plant
would close or making any type of threat, that individual
should tell him and he would take action right away.
Several witnesses were asked whether they were present
at a meeting at which Delbrey made the foregoing
statements. Their recollections were not consistent.2 Some
of such inconsistency may be attributable to employees
attending different meetings and variances in what
Delbrey stated at each, and some may be caused by
differences in ability to clearly recollect. I am inclined to
conclude, however that a substantial portion of the
apparent inconsistency may have been caused by differing
nuances in the languages and in the interpretation. On the
whole I find Delbrey's testimony corroborated by other
witnesses , including those whose testimony is set forth
above.
I do not credit the testimony of Beltran or Gonzalez.
Both were given to gross exaggeration and neither was able
to substantiate the broad assertions of repeated unlawful
statements by the named supervisors. This casts grave
doubts as to their veracity concerning the single incidents
they related. Beltran could not even recall the name of the
employee who was working next to her and who assertedly
was present at the incident involving de Jesus. Further,
there is substantial variance in Beltran's testimony on
direct and on cross-examination as to precisely what was
said by de Jesus. With respect to the incident involving
supervisor Vega, Beltran indicated it took place in the
presence of a group of employees. Yet her testimony stands
uncorroborated, and it was only with great difficulty that
Beltran identified another similar statement by Vega
despite her testimony that such incidents were frequent. It
appeared that Beltran was again caught in her own
generalizations and exaggerations. She gave no setting for
such comment which might have bestowed an air of truth
to her assertions. It is clear that employees, and Beltran in
particular, were fully aware that the Compex plant at
Coamo, where employees were represented by the Union
involved herein, was closed by a lengthy and bitter strike
which had been well publicized in local newspapers, and
that the plant closing was known to be a result of the strike
and not a retaliation against employees because they
selected representation by the Union. Similarly, Gonzalez,
who claimed that both Maldonado and Beltran could
verify her testimony of unlawful comments daily by
Supervisor Caraballo, was not corroborated by either. Nor
did Luz Maria Raspaldo, who testified for the General
Counsel, verify the testimony of either Gonzalez or Beltran
for she admitted she had not heard Caraballo or de Jesus
so speak.
conditions, and there was going to be a tot of work. Santiago testified about
a meeting at which Delbrey told employees they should vote the way they
felt, but she did not refer to the rumor or to new machinery. Grin testified
that at the meeting she attended Delbrey did not talk about the rumors of
the plant closing down . She stated , however, that she was in the group who
asked Delbrey if it was true if the Union won the election the plant would
close, and that Delbrey replied "No," on the contrary, they were bringing in
new machinery . The testimony generally given by these employees was not
significant in relation to the primary issues in the case . Therefore, although
they all seemed to some degree anxious not to give any testimony damaging
to the Respondent , I find it unnecessary to individually evaluate credibility.
SALINAS MFG. CORP.
On the other hand, I found de Jesus a particularly
convincing witness . I credit her denial of the incident
related by Beltran . I also accept as truthful Vega's denials
that she made the statements attributed to her by Beltran,
and Caraballo 's version of her problems and exchanges
with Gonzalez during the election campaign.
Accordingly, I find that the allegations of unlawful
conduct herein have not been substantiated by a prepon-
derance of the credible testimony , and shall recommend
the dismissal of the complaint in its entirety. I also
recommend that in considering the Union's objections to
the election conducted on April 5, 1973, that the Board
find no merit in Objection 3, on the basis of the testimony
presented at the hearing herein.
Upon the basis of the foregoing , and the entire record I
make the following:
s In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations, and recommended order herein
CONCLUSIONS OF LAW
577
1. Respondent is an employer engaged in commerce
and in operations affecting commerce within the meaning
of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. The evidence fails to show that Respondent violated
the Act as alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and pursuant to Section 10(c) of the Act, it is hereby
recommended that there issue the following:
ORDERS
It is hereby ordered that the complaint be, and it
hereby is, dismissed in its entirety.
shall, as provided by Section 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