Southland Knitwear, Inc. and Metropolitan Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 4, 1982

260 N.L.R.B. 642 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southland Knitwear, Inc. and Metropolitan Indus-
tries, Inc. and Knitgoods Workers' Union,
Local 155, International Ladies' Garment
Workers Union, AFL-CIO and Local 413,
Office and Professional Employees Internation-
al Union, AFL-CIO, CLC, Party to the Con-
tract
Southland Knitwear, Inc. and Metropolitan Indus-
tries, Inc. and Knitgoods Workers' Union,
Local 155, International Ladies' Garment
Workers Union, AFL-CIO. Cases 29-CA-7765
and 29-CA-8096
March 4, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On September 29, 1981, Administrative Law
Judge William F. Jacobs issued the attached Deci-
sion in this proceeding.' Thereafter, the Respond-
ent filed exceptions and a motion for a trial de
novo,2 and the General Counsel and Knitgoods
Workers' Union, Local 155, International Ladies'
Garment Workers Union, AFL-CIO, filed briefs in
opposition to the Respondent's motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,3 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.4
i On November 4, 1981, the Board issued an Order in the above-enti-
tied proceeding adopting in the absence of exceptions the findings, con-
clusions, and recommendations of the Administrative I a" Judge Subse-
quently, the Respondent requested an extension of time to file exceptions.
which was granted by the Board After receiving the Respondent's ex-
ceptions and motion for a trial de novo, the Board accepted the exceptions
and motion and rescinded its Order (of November 4, 1981
2 Inasmuch as we find no merit ill the Respondent's contention that it
was denied due process because it was not represented by counsel at the
hearing, we deny the Respondent's motion for a new trial
3 The Respondent has excepted to certain credibility Finldings made by
the Administrative Law Judge It is the Board's established polic) not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all iof the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir. 1951) We have
carefully examined the record and find nio basis for reversing his findings.
I Inasmuch as the Administrative L aw Judge found that the Respond-
ent violated Sec 8(a)(1). (2), and (3) of the Act by discriminatorily laying
off certain employees and refusing to recall others, we shall modify the
recommended Order to require the Responden t o cease and desist there-
from
Although the Administrative Law Judge included a broad cease-and-
desist order in the notice. he failed to include such a provision in his rec-
ommended Order Inasmuch as we find that the Respondent has commit-
ted egregious and widespread unfair labor practices, we shall modify the
recommended Order to provide for a broad cease-and-desist order requir-
260 NLRB No. 87
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,
Southland Knitwear, Inc. and Metropolitan Indus-
tries, Inc., Brooklyn, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Insert the following as paragraphs l(d), (e),
and (f):
"(d) Laying off employees because they support
Local 155 or reject Local 413 as their collective-
bargaining representative.
"(e) Laying off employees in order to prevent
Local 155 from organizing them.
"(f) Refusing to recall employees because of
their activities on behalf of Local 155 or in opposi-
tion to Local 413."
2. Insert the following as paragraph l(g):
"(g) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the
Act."
3. Substitute the attached notice for that of the
Administrative Law Judge.
ing the Respondent to cease and desist From violating the Act "in any
other manner." See Ilikmon Io ixods, Inc. 242 NLRB 1357 (1979).
In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 11980). Member Jenkins would award interest on the hackpay
due based on the formula set forth therein
APPENDIX
NOTICE To EMPILOYEES
POSTED) BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
642
SOUTHLAND KNITWEAR, INC.
To refrain from the exercise of any or all
such activities.
WE WIll. NOT take Local 155 leaflets from
our employees and tear them up.
WE WILl. NOT admonish employees not to
speak with Local 155 representatives nor claim
that the Local 155 representative is from the
Mafia.
WE WILt NOT keep employees' union activi-
ties under surveillance.
WE WI.LL NOT solicit or force employees to
sign Local 413 authorization cards.
WE WItl. NOT threaten employees with loss
of employment if they fail to sign Local 413
authorization cards.
WE WIl.l. NOT give the impression of sur-
veillance of employees' activities on behalf of
Local 155.
WE WIt . NOT threaten to close the factory
if the employees try to bring in Local 155.
WE wil.l NOT interrogate employees con-
cerning their activities on behalf of Local 155.
WE Wit.l NOT interfere with the rights of
employees to discuss their union preferences
and activities.
WE WILI. NO] tell employees to advise man-
agement if they hear anyone discussing Local
155.
WE wit. Nor promise employees various
benefits in return for talking to other employ-
ees in support of Local 413.
WE WILI, NOT promise or grant employees
benefits for abandoning their support for Local
155.
WE WILL NOT put into effect or enforce the
1977 collective-bargaining agreement between
Local 413 and ourselves.
WE WILl. NOT deduct dues for Local 413
from the paychecks of our employees.
WE WILI. NOT lay off employees because
they support Local 155 or reject Local 413 as
their collective-bargaining representative.
WE WILL NOT lay off employees in order to
prevent Local 155 from organizing them.
WE WILL NOT refuse to recall employees be-
cause of their activities on behalf of Local 155
or in opposition to Local 413.
WE WIlt. NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them by Section
7 of the Act.
WE Witl offer all discriminatorily laid-off
employees, including Maria Baez, Juana Baez,
the mother of Maria Baez, and all employees
laid off on February 13, 1980, immediate and
full reinstatement to their former jobs or, if
such jobs no longer exist, to substantially
equivalent jobs, without prejudice to their se-
niority or any other rights or privileges, and
make them whole for any loss of pay, with in-
terest, that they may have suffered by reason
of our discrimination against them.
WE WILL reimburse all affected employees
for dues deducted for Local 413, with interest.
All our employees are free to become or remain,
or refrain from becoming or remaining, members of
a labor organization.
SOUTHLAND KNITWEAR, INC. AND
METROPOIITAN INDUSTRIES, INC.
DECISION
STATEMENT OF THE CASE
WIll. lAM F. JACOBS, Administrative Law Judge: This
case was heard before me in Brooklyn, New York, on
November 3, 4. and 5, 1980.' The original charge in
Case 29-CA-7765 was filed on February 7, amended on
February 12, and amended once again on February 28.
The complaint in Case 29-CA-7765 was issued on April
30, alleging that Southland Knitwear, Inc. and Metro-
politan Industries, Inc., herein called Southland and Met-
ropolitan, respectively, and Respondent, collectively,
violated Section 8(a)(1), (2), and (3) of the National
Labor Relations Act, as amended, by interrogating em-
ployees concerning their membership in, activities on
behalf of, and sympathies for Knitgoods Workers' Union,
Local 155, International Ladies' Garment Workers
Union, AFL-CIO,2 herein called Local 155; threatening
employees with discharge and other reprisals if they
failed to sign authorization cards for Local 413, Office
and Professional Employees International Union, AFL-
CIO, CLC, herein called Local 413; threatening employ-
ees that Respondent would cease operations and would
take other actions against them if they became or re-
mained members of or gave assistance or support to
Local 155; offering, promising, and granting to employ-
ees more favorable work assignments and other benefits
and improvements in working conditions and terms of
employment in order to induce them to sign Local 413
authorization cards and to induce them to become or
remain members of Local 413 and to give assistance or
support to it; keeping under surveillance the meeting
places, meetings, and activities of Local 155 and the con-
certed activities of its employees conducted for the pur-
pose of collective bargaining and other mutual aid and
protection; urging and soliciting employees to sign cards
designating Local 413 as their representative for collec-
tive-bargaining purposes, to join Local 413, and to sign
checkoff cards authorizing the deduction from their
wages of dues and other moneys to be paid to Local 413;
attempting to effectuate and enforce for the first time, as
' All dales are in 19X8 unless olherw, se noted
2 The Charging Party
643
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of February 5, a collective-bargaining agreement3 be-
tween Metropolitan and Local 413 which had originally
been executed by said parties on or about March 31,
1977, but which had not been maintained or enforced
since its execution, notwithstanding the fact that Local
413 did not as of February 5, nor at any other time
thereafter, represent an uncoerced majority of the em-
ployees covered by said agreement; requiring employees
covered and affected by the provisions of the
Metropolitan/Local 413 agreement to pay moneys, in-
cluding dues and initiation fees, to Local 413; deducting
moneys, including dues and initiation fees, from the
wages of employees and transmitting such moneys to
Local 413 or holding them in escrow for the benefit and
account of Local 413 pursuant to said agreements; and
laying off certain employees and refusing to reinstate
them because they joined and assisted Local 155 and en-
gaged in other concerted activity for the purpose of col-
lective bargaining and mutual aid and protection or be-
cause said employees refrained from forming, joining, or
assisting Local 413. On May 19, Respondent filed its
answer to the complaint in Case 29-CA-7765, admitting
certain of the allegations but denying the commission of
any unfair labor practices.
On June 19, the charge in Case 29-CA-8096 was filed
by Local 155. The complaint in said case was issued on
July 31, alleging violations of Section 8(a)(l) and (3) in
that employees of Respondent as of July 14 undertook an
unfair labor practice strike against Respondent and that
thereafter Respondent offered and promised one employ-
ee that it would obtain employment for her with another
employer if she would abandon her membership in and
activities on behalf of Local 155, abandon the strike, and
cease picketing at Respondent's plant; refused reinstate-
ment to an employee because she joined and assisted
Local 155; and refused reinstatement to a second em-
ployee unless she abandoned her membership in and ac-
tivities in support of Local 155. On August 19 an order
consolidating cases and notice of hearing issued consoli-
dating Case 29-CA-7765 and Case 29-CA-8096 for hear-
ing. On October 13 Respondent filed a one-line general
denial which, though misciting the case number, I take
to be a denial of the allegations contained in Case 29-
CA-8096. 4
All parties were represented at the hearing and were
afforded full opportunity to be heard and to present evi-
dence and argument. Upon the entire record, upon my
observation of the demeanor of the witnesses, and after
giving due consideration to the oral arguments of the
parties, I make the following:
FINDINGS Oi FACT
I. THE BUSINESS OF RESPONDENT
Southland and Metropolitan are both New York cor-
porations which maintain their principal offices and
3 The agreement contains, inter alia, provisions which require member-
ship in L ocal 413 as a condition of employment
4 Certain inconsistencies between the admissions contained in the first
answer and the general denial in the second answer were resolved at the
hearing through testimony during which admissions were agreed upon to
cover similar allegations In both answers
places of business in Brooklyn, New York, where they
are engaged in the manufacture, sale, and distribution of
knitwear goods and related products. These corporations
are affiliated businesses with common officers, owner-
ship, directors, and operators, and constitute a single in-
tegrated business enterprise. The said directors and oper-
ators formulate and administer a common labor policy
affecting the employees of said Companies. During the
past year, Respondent, in the course and conduct of its
business, purchased and caused to be transported and de-
livered to its Brooklyn plant knitwear goods and other
goods and materials valued in excess of $50,000, of
which goods and materials valued in excess of $50,000
were delivered to its plant in interstate commerce direct-
ly from States of the United States other than the State
in which it is located. Respondent is, and has been at all
times material, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. IHE LABOR ORGANIZATION INVOLVED
Local 155 and Local 413 are, and have been at all
times material herein, labor organizations within the
meaning of Section 2(5) of the Act.
I. TI HE UNFAIR LABOR PRACTICES
A. Agency
It is admitted that Jacob (herein called Jack) Ja-
cobowitz is, and has been at all times material, the presi-
dent and manager of Respondent, acting on its behalf,
and is and has been an agent thereof. It is alleged that
Beirel and Leibish Jacobowitz, the sons of Jack Ja-
cobowitz, are, and have been at all times material, agents
of Respondent, acting on its behalf, and supervisors
within the meaning of SeLtion 2(11) of the Act. This is
denied. It is similarly alleged that Sylvia Jacobowitz, the
daughter of Jack Jacobowitz, is, and has been at all times
material, employed as an office secretary by Respondent,
acting on its behalf, and is an agent thereof. This, too, is
denied.
Counsel for the General Counsel put in evidence the
testimony of several witnesses who described how Beirel
Jacobowitz interviewed and hired employees, gave
orders to and effectively directed employees on the job,
and solved their problems and answered their questions.
Similarly, there is evidence that Beirel Jacobowitz also
reassigned or transferred employees from one job to an-
other and, upon request, granted time off, and also termi-
nated employees. Beirel Jacobowitz did not testify and,
although Jack Jacobowitz did testify, he offered no evi-
dence to contradict the testimony of counsel for the
General Counsel's witnesses. I conclude that Beirel Ja-
cobowitz, during all relevant times herein, is and was a
supervisor under the Act and an agent of Respondent.
Leibish Jacobowitz, the other son of Jack Jacobowitz,
sometimes signed paychecks for Respondent. He was the
older of the two sons, who, if Beirel Jacobowitz could
not solve a problem, was called upon to solve the more
difficult questions for the employees who looked upon
him as their superior. He, like Beirel Jacobowitz, gave
orders to the employees. Leibish Jacobowitz did not tes-
644
SOUTHI.AND KNITWEAR, INC.
tify, nor did Jack Jacobowitz or any other witness offer
evidence to support Respondent's contention that Leibish
Jacobowitz was neither a supervisor under the Act nor
an agent of Respondent. In any case, since Leibish Ja-
cobowitz is the son of the owner, he enjoys a special
status with Respondent which, when considered in light
of his overt participation along with his father in events
described infra, indicates an agency relationship. I there-
fore find that his activities are attributable to Respond-
ent. 5
Sylvia Jacobowitz, daughter of Jack Jacobowitz, is in
charge of payroll6 and has her own office. 7 She receives
the production tickets from the piecework employees
each week and determines the amount due them. If there
are any questions about the proper amount of compensa-
tion or if any employee reports late for work., the em-
ployee involved speaks to Sylvia Jacobowitz about the
problem and she settles the matter. Sylvia Jacobowitz
also writes and then distributes the paychecks to the em-
ployees each week. Sylvia Jacobowitz' name does not
appear on the payroll sheets, nor does that of Beirel or
Leibish Jacobowitz. On at least one occasion she inter-
viewed an applicant for employment who was then told
by Beirel Jacobowitz to report for work the following
Monday.
I find that Sylvia Jacobowitz, as the daughter of the
owner of Respondent, enjoys a special status which,
when considered in light of her overt concerted involve-
ment with the other members of the Jacobowitz family
in activities which I shall find, infra, violative of the Act,
made her activities attributable to the Respondent."
B. Background
Respondent, which operates a knitting mill on Spencer
Street in Brooklyn both under the name of Metropolitan
Industries, Inc. and Southland Knitwear, Inc., once oper-
ated under the name of High Point Hosiery. 9 As High-
point Hosiery, Respondent, in 1971 entered into a collec-
tive-bargaining agreement with Local 413, Office and
Professional Employees International Union, AFL-CIO,
CLC. The agreement, signed by Jack Jacobowitz, the
owner of the Company, on behalf of Respondent and by
Manuel Paya, Local 413's president, on behalf of the
Union, covered both production and office employees
and contained an expiration date of August 14, 1974. The
agreement was signed, according to Paya, following an
organizational campaign and voluntary recognition. Io
5 Columbia Building .aterials, Inc., 239 NLRB 1342 (1979). affd 624
F.2d 193 (9th Cir 1980).
6 Jack Jacohowitz testified that he does not look at the payroll records
at all.
I Sylvia Jacobowitz shares this office with her father
8 Columbia Building Malerials. supra.
9 Highpoint Hosiery ssas located at the time at Park Avenue, Hrook-
lyn.
t0 No authorization cards nor other evidence was offered to support
Paya's statement that an organizational campaign had been conducted
Paya testified that, although Jacobowitz was initially reluctant to sign the
agreement, he later called Paya and agreed to sign with the Union when
"he found out the girls wanted a union" which union the employees
wanted is not clear from the testimony Jacobowitz could not recall
whether he was shown any authorization cards
Before the expiration of the 1971 collective-bargaining
agreement Highpoint Hosiery moved away, apparently
without notifying Local 413 that it was doing so. In the
words of Paya, the Company disappeared." Though
Paya testified that the collective-bargaining agreement
had been enforced before Respondent moved, no evi-
dence was offered to support Paya's testimony and it
seems highly unlikely that the Company could success-
fully, completely disappear without a trace if there had
been a viable collective-bargaining relationship between
parties with the employees receiving active representa-
tion from Local 413. 2 Certainly. one of the union
member employees would have notified his representa-
tive of the move either immediately before or after it oc-
curred if he were affected in any way by the move.
In 1973 Respondent, now known as Metropolitan In-
dustries, Inc., moved to its present location on Spencer
Street. According to Paya, when he found out where
Respondent was located, he went to its place of business,
got more cards signed, and negotiated a new contract
with Jack Jacobowitz on March 31, 1973. However. no
employees testified in support of Paya's statement, no
cards were offered in evidence, and Paya could not
recall how many cards were signed 3 nor how many
people were in the unit. No records were produced as
substantiating evidence as to the signing of additional
cards. The old contract still had about a year and a half
to run at the time the 1973 agreement was negotiated
and there appears in the record no satisfactory reason for
the parties' having deemed it necessary to prematurely
execute a new agreement.'4 Nevertheless, the new con-
tract covering the same unit of employees was executed
and a new expiration date of November 1, 1976 was
agreed upon.
When Paya was asked whether the 1973 contract was
in full force and effect through its expiration date, he
stated that he was unable to answer the question. Jack
Jacobowitz, on this subject, stated in his affidavit that
until August 1974 the employees paid union dues and re-
ceived benefits under the contract and that he contribut-
ed to the Union very little during this period, but that
after that date he could not recall whether employees
paid dues or if he contributed to the Union. When called
upon to testify at the hearing, however, Jacobowitz
could not remember what he had said in his affidavit. Ja-
cobowitz' testimony contributed very little toward shed-
ing light on the history of bargaining between Respond-
ent and Local 413.
I I The precise date Id Respondent's so-called disappearance is not at
all clear from Paya's testimony but most probably was at some time
during the life of the first contract
12 When asked if the employees paid union dues and received benefits
under the contract and whether he contributed money to Ltocal 413. Jack
Jacobositz testified vaguely, "Probably I don't remember '71 I beliheve I
paid them" He offered no records to support his testimony
'" Jacobossitz testified that he could not remember being shown an)
cards in 1973 He also testified elsewhere that maybe he had been shown
cards
4 Though Paya testtfied that an increase in the number of employees
made the execution of the new contract necessary., the old contract con-
tained a provlisio cosering such a contingency
645
DECISIONS OF NATIONAl LABOR RELATIONS BOARD
In 1977 a new contract15 was signed, dated March 31,
1977, containing an expiration date of November 1, 1980.
Paya's name again appears on the collective-bargaining
agreement as does the name of Jack Jacobowitz. ' Ac-
cording to Paya, before signing the 1977 contract he ob-
tained additional signed authorization cards. He did not
explain in his testimony, however, why he considered it
necessary to do so, nor could he, when asked, state how
many cards were obtained. No cards were offered in evi-
dence to substantiate Paya's claim that additional cards
were received, nor were any union records offered for
this purpose. Later in his testimony, Paya was shown a
copy of his affidavit in which he denied soliciting any
additional union authorization cards before signing the
1977 contract. When faced with the statement contained
in the affidavit, Paya reversed himself and denied that
any new cards were solicited in 1977. 7
Paya was examined with regard to the question of
whether or not the 1977 collective-bargaining agreement
was ever enforced. In answer to this question Paya re-
plied that he did not think it was enforced. More explic-
itly, Paya testified that he had never been notified by
anyone from the Company that any employees had ever
failed to join the Union after being employed for 30 days
as required by the union-security clause of the contract.
Similarly, he testified that he never requested Respond-
ent to discharge any employee for failure to become a
member of Local 413 after 30 days of employment as re-
quired by the agreement because he "didn't enforce the
contract too much." When asked how many of Respond-
ent's employees had become members of Local 413
before 1980, Paya was unable to answer because he
would have had to count the cards in order to be able to
answer the question. When asked if he had copies of the
authorization cards with him, Paya replied that he did
not. When it was pointed out that authorization cards
had been subpenaed and that Paya had failed to bring
them despite the subpena, and the subpena was then put
in evidence, counsel for the General Counsel requested
that an adverse inference be taken that no such authori-
zation cards existed. No authorization cards were submit-
ted at the time or thereafter, and I, therefore, in accord-
ance with standard procedures and the request of counsel
for the General Counsel, draw the inference suggested
that no such signed authorization cards were ever ob-
tained by the Union from Respondent's employees.
Paya was examined with regard to whether or not em-
ployees of Respondent received certain benefits in ac-
cordance with the provisions of the 1977 contract. Paya
testified that employees, "to his recollection," received
time and a half for overtime, but so testified on the basis
of the fact that no employees complained to him about
not being paid time and a half. Moreover, when asked if
any employees complained to him about any violations
lb The 1977 collective-bargaining agreement contains no unit descrip-
tion.
'6 Though the name of Jack Jacobowitz appears on the document,
Paya testified that Leibish Jacobowitz, Jack's son, actually negotiated the
contract. Jack Jacobowitz, on the other hand, testified that he negotiated
the contract himself Leibish Jacobowitz did not testify
x7 Jack Jacobowitz testified that he could not recall whether he w'as
presented with additional authorization cards at the time the 1977 con-
tract was negotiated
of the contract, Paya replied in the negative. He then
went on to admit that he had never processed a griev-
ance under the 1977 contract, and had never checked the
payroll to see that the employees were properly paid, but
had been told by Respondent that "they were going to
pay" overtime (emphasis supplied). He also testified that,
although he visited the shop once a month and spoke to
employees there," 8 none of them complained to him,
and, since they seemed happy, he assumed that they
were being paid properly under the contract. Paya stated
that when he visited the shop he sometimes placed no-
tices on the bulletin board which is located outside the
office in the hall. Although Paya said that there was a
shop steward in the shop, he was unable to identify him
by name, explaining, "I don't know, I didn't go to the
shop for a long time. I told you before they disap-
peared."' 9 Paya stated that he "used to" talk with the
shop steward once a month. The implication is that there
had not been a shop steward at the shop for several
years; that is, since Respondent's disappearance.
Paya was asked whether, as required by the 1977 col-
lective-bargaining agreements, Respondent paid $11.50
per month per employee into the health and welfare
fund. Paya replied that it was not his job to keep track of
such matters but that he had never received any com-
plaints on the subject matter so therefore the payments
had probably been made. After Paya made this state-
ment, counsel for the General Counsel reminded him
that records concerning contributions to the health and
welfare fund had been subpenaed, and asked him if he
had complied with the subpena. Paya admitted that he
had not, whereupon counsel for the General Counsel
moved that an adverse inference be taken that no such
records exist because no such contributions had ever
been made. No records were thereafter produced and I
hereby take the inference moved. I find that Respondent
made no contributions to the health and welfare fund as
required by the collective-bargaining agreement.
Counsel for the General Counsel then examined Paya
concerning the requirements contained in the 1977 agree-
ment for periodic wage increases. Paya could not recall
what the collective-bargaining agreement said concern-
ing periodic wage increases and did not know what, if
any, periodic wage increases had been granted to em-
ployees as prescribed by the contract.
When Paya was asked pointblank by counsel for the
General Counsel whether the 1977 collective-bargaining
agreement had ever been enforced, Paya stated that it
had indeed been enforced in the beginning. When counsel
for the General Counsel pursued the matter and asked
Paya if he were sure that it had been enforced, Paya
', Paya clarified his testimony later by stating that when he visited the
shop and spoke to employees on these occasions, he only spoke to one or
two of them
t"* I'he inconsistency in Paya's testimony is patent since he stated that
Respondent "disappeared" only once and that was when Highpoint Ho-
siery left its Park Avenue location. He testified that Respondent resur-
faced at Spencer Street and that he signed a new contract with Metro-
politan at that address on March 31. 1973. Thus, if Paya did not "go to
the shop fior a long time'" and did not know the name of the shop ste-
ward for that reason-because Respondent "disappeared"--he testified in
effect that he had not known what was going on at the shop since 1973.
646
SOUTHLAND KNITWEAR, INC.
backtracked and stated, "I'm not sure, I have to look at
my records to see it "21) Counsel for the General Counsel
pressed, "Isn't it a fact, that that means before you went
to Mr. Jacobowitz in 1980, the contract was not being
enforced'?" Paya replied, "I told you before it wasn't en-
forced."
Finally, Paya was examined with regard to whether or
not he collected dues. Paya stated that Local 413 collect-
ed dues "for a while," including, he thought, during the
1977 contract period. He added, however, that he did
not actually know because his office handles dues collec-
tion and he would have to look at his records. However,
the 1977 collective-bargaining agreement provides for
dues to be deducted from employees' salaries, and Paya
was served with a subpoena duces tecum requiring him to
produce all records showing such deductions paid to
Local 413 by Respondent, but Paya failed to produce the
subpenaed records. Upon Paya's failure to produce the
subpenaed records, counsel for the General Counsel
moved for the taking of an adverse inference to the
effect that no such records exist because employees had
not paid any dues to Local 413. I grant the motion and
so find. 2
Jack Jacobowitz was similarly examined concerning
the enforcement of the 1977 collective-bargaining agree-
ment. With regard to dues, Jacobowitz testified that he
did not know whether employees paid dues or Respond-
ent contributed to Local 413. He stated that he might
have records on these matters and, if so, would make
such records available at a later date. 22
With regard to the general enforcement of the 1977
agreement Jacobowitz testified that he could not remem-
ber whether the contract was enforced between 1977 and
1980. He stated that Paya was in the shop a couple of
times-that he "just came around."
With regard to union security, Jacobowitz was asked
whether his employees were told, in accordance with the
contract, that they had to become Local 413 members
after working there 30 days. Jacobowitz replied that he
did not think so. When asked if any employees had been
fired for not joining Local 413, 30 days after they began
working for Respondent, Jacobowitz replied in the nega-
tive.
With regard to hours, Jacobowitz testified that, rather
than the 5-day 8-hour-per-day, 40-hour week provided
for by the contract, employees usually worked 4-1/2
days per week for a total of 36 or 38 hours because Re-
spondent closed early on Fridays.23
20 In an affidavit supplied by Paya to a Board agent,. Paya stated that
he was not sure whether the contract had been enforced between 1977
and 1980
21 Paya also admitted on the record that he discussed with Jack Ja-
cobowitz in February 1980 that he had never received any dues from Re-
spondent which by the contract should have been forwarded.
22 The records provided are discussed infra.
23 Jacobowitz at first testified that employees who wished to do so
could complete their 40 hours on Sundays and if the) worked over 40
hours they would be paid double time in accordance with the contract
Later, however, Jacobowitz testified that few employees took advantage
of available Sunday work and that those who did so were not given
double time as required by the contract. Jacobowitz' testimony on the
subject was somewhat confusing
Concerning the use of a bulletin board at the shop by
Local 413, Jacobowitz testified that there was a bulletin
board and that Local 413 did post notices thereon. He
thus supported the testimony of Paya on this matter, but
also stated that he did not look at the bulletin board and
therefore did not know how frequently the bulletin
board was used by Local 413.
Jacobowitz testified that after 6 months of employ-
ment, employees were entitled to a week's vacation and
that, after a year's employment, employees were entitled
to 2 weeks' vacation. This is more than that which is
provided for by the contract. 24 Jacobowitz also testified
that he gave paid holidays to his employees. He could
not, however, remember if he gave New Year's Day as a
holiday. He then stated that he gave whatever paid holi-
days required under the contract.
Jacobowitz was asked whether there was a shop ste-
ward at Southland. He replied that he did not think so
but that he did not know. Jacobowitz did not appear to
understand what a shop steward was or what his role
might be. He also appeared confused by the term "griev-
ance procedure." Eventually, he testified that if an em-
ployee had a work-related problem she would take her
problem directly to him but if the problem was not re-
solved she would either take it to Local 413 or would
quit. When asked if an employee had ever filed a written
grievance, however, Jacobowitz replied that he did not
know, adding that he could not remember any grievance
ever coming to his attention. It would thus appear from
Jacobowitz' testimony that there was no viable grievance
procedure in effect at the shop during the life of the 1977
collective-bargaining agreement.
Although article 23 of the collective-bargaining agree-
ment requires two 10-minute breaks each day, one in the
morning and one in the afternoon, Jacobowitz testified
that employees do not, in fact, get such breaks. In this
respect the contract is admittedly ignored.
Although the contract calls for a $3-per-week wage in-
crease after 60 days of employment 25 and semiannual in-
creases of 7-1/2 cents 28 during the life of the agreement,
Jacobowitz admitted that these provisions had not been
implemented. Thus, the contract has not been in effect
insofar as the wage provisions are concerned.
Sylvia Jacobowitz, who, as noted, is in charge of pay-
roll, testified that employees are paid for holidays and re-
ceive double time for holidays worked. She admitted,
however, that no separate notation is made on the pay-
roll records to indicate that employees have received pay
24 The 1977 labor agreement states that employees with 6 months and
I year of employment are to receive 3-day and I-week vacation, respec-
tlively,
2a Sylvia Jacobowitz was personally in charge of the payroll records
and made them all out weekly by hand. She testified, despite her obvious
acquaintance with the payroll records and procedures, that she did not
know if employees received an automatic wage increase after 60 days of
employment She stated that her father takes care of raises and tells her
when to increase the wages of a particular employee but that she is unac-
quainted with when employees receive wage increases, She admitted that
she was never instructed to give an automatic $3-per-hour wage increase
to employees after 60 days of employment.
20 Sylvia Jacobowitz disingeniously testified that she could not recall if
employees received the 7-1/2-cent wage increase in November 1979 as
per the contract
647
DECISIONS OF NATIONAl LABOR RELATIONS BOARD
for a holiday. 27 Indeed, the payroll records indicate,
contrary to Sylvia Jacobowitz' testimony, that employees
do not receive holiday pay as required under the con-
tract. Moreover, although Sylvia Jacobowitz testified
that employees who work over 40 hours receive time
and a half for overtime worked as the contract provides,
Respondent's payroll records indicate that only straight
time is paid.2 8 Thus, Sylvia Jacobowitz' testimony on
these matters is discredited by Respondent's own re-
cords, and I conclude from these facts that all of her tes-
timony must be subjected to serious question unless sup-
ported by credible documentation or independent cor-
roborative testimony from other witnesses. Thus, al-
though Sylvia Jacobowitz testified that employees, in ac-
cordance with the collective-bargaining agreement, re-
ceive paid vacations, she admitted that such payments
are not reflected in the payroll records. She testified that
employees on vacation would receive a regular paycheck
with the number of hours worked left blank. Since no
copies of these canceled checks were offered evidence, I
conclude that such checks never issued and that Re-
spondent did not pay its employees for vacations taken
as required by the contract. The contract was not en-
forced in this respect.
Sylvia Jacobowitz testified that she could not recall if
dues were deducted from employees' paychecks. She
agreed, however, that, if in fact dues deductions had
been made in accordance with the contract provisions,
the amount deducted would be entered on the payroll re-
cords. However, though payroll records were subpenaed
by counsel for the General Counsel and were provided
during the hearing, those portions of the payroll sheets
which would indicate the amount of dues deducted were
not included in the records supplied. When this fact
came to light, counsel for the General Counsel moved
for production of the missing portions of the payroll
sheets containing dues-deduction information. The
motion was granted and Respondent was ordered to pro-
duce the missing portions of the payroll records. At this
point in the hearing Jack Jacobowitz indicated that there
had been no dues deductions and on that basis declined
to provide the additionally subpenaed documents. 29
Since dues had admittedly not been deducted during the
life of the 1977 agreement until the advent on the scene
of Local 155 in February 1980, it is clear that the agree-
27 Sylvia Jacobowitz testified that her father would tell her when she
should pay an employee for a holiday but nlever told her on what bases
he had decided which employee to pay holiday pay. I find it incredible
to believe that her father would indicate 1o Sylvia by name the specific
employees entitled to holiday pay rather than to tell her to simply pay
holiday pay in accordance with the contract if, in fact, the contract was
being enforced in this respect.
28 When Sylvia Jacobowitz was asked to explain why a certain em-
ployee was paid at straight time for overtime, she replied that she may
have made a mistake and then paid the named individual the difference
by private check, which she does whenever she makes such mistakes.
Counsel for the General Counsel moved to have these private checks
produced. The motion was granted and an exhibit number was set aside
to assign to the checks when received. The checks were never produced
and, in accordance with the motion of counsel for the General Counsel. I
draw the adverse inference that no such checks were ever issued and that
Respondent did not pay its employees time and a half for overtime as
provided for by the collective-bargaining agreement
29 Certain documents were nevertheless subsequently submitted. These
will be discussed infra.
ment had not been enforced in this respect until that
time.
Respondent called no witnesses to testify at the hear-
ing concerning the contractual relationship between
Local 413 and Respondent and the enforcement of the
1977 collective-bargaining agreement, and all testimony
tending to favor Respondent's position was introduced
through Respondent's management 3a personnel or
through Paya. Not a single employee was called by Re-
spondent to testify concerning his or her enjoyment of
benefits derived through the enforcement or administra-
tion of the 1977 collective-bargaining agreement. On the
other hand, counsel for the General Counsel called sev-
eral employee witnesses who testified credibly with
regard to this matter.
Thus, Maria Baez, an employee of Respondent since
August 5, 1979, testified that, until February 1980 and
the appearance of Local 155, she was totally unaware of
the existence of Local 413 and knew nothing of the 1977
collective-bargaining agreement. She had never paid
dues to Local 413 nor authorized dues deductions from
her wages. She received no paid vacation, paid holidays,
or coffeebreaks. She did not receive the contractually
scheduled wage increase in November 1979, the increase
due her after 60 days of employment, nor any other
wage increase. Though she worked overtime she never
received time and a half. She denied that there was a
Local 413 shop steward at the shop, and, since one never
was introduced or even mentioned by name, I credit
Baez' testimony concerning this matter. She was, of
course, aware of no grievance procedure, since she had
never heard of Local 413. She received no health or wel-
fare benefits. Contrary to the testimony of Paya and Jack
Jacobowitz, Baez denied that there was any bulletin
board at the shop much les union announcements there-
on. Prior to February 1980 Baez never saw Paya at the
shop.
Carlos Caban, an employee of Respondent since Janu-
ary 10, 1980, testified that he received no paid breaks
while employed by Respondent, and that, although he
worked overtime and was initially paid time and a half
for it during the first 2 weeksa3 of employment, he was
subsequently told by Leibish Jacobowitz that thereafter
he would only receive straight time. He thereafter de-
clined to work overtime. Caban also testified that there
was no shop steward or grievance procedure in effect at
the shop, and that he received no health and welfare
benefits.
Corina Malave, an employee of Respondent since June
1979, testified that she had never been a member of
Local 413, had never even heard of Local 413 prior to
February 1980,32 and had known nothing of the existing
:'° Testimony was adduced by counsel for the General Counsel
through witnesses examined under Sec. 611(c) of the Federal Rules of
Evidence
l3 The records support Caban to the extent that he was paid overtime
at time and a half I week, then worked overtime at straight time for 2
weeks, but thereafter did not work any overtime.
a2 Though Malave claimed never to have heard of Local 413 prior to
early February 1980. elsewhere in her testimony she stated that in Janu-
ary 1980 she discussed "the union" with her fellow workers. Thus, Ma-
Continued
648
SOUTHLAND KNITWEAR, INC.
collective-bargaining agreement between Respondent
and Local 413. She was never told that she had to
become a member of Local 413 in order to maintain her
employment as the contract's union-security clause pro-
vides. Malave testified further that she had never re-
ceived a paid vacation, paid holidays, paid breaks, the
scheduled 7-1/2-cents-per-hour wage increase in Novem-
ber 1979, the $3-per-hour contractual increase after her
first 60 days of employment, time and a half for over-
time, nor health and welfare benefits. She testified that
there was neither a shop steward nor a grievance proce-
dure in effect at Respondent's shop.
Melba Ondina Rivas, an employee of Respondent since
July 7, 1979, testified that she never heard of Local 413
during the entire 8 months of her employment there. No
one ever mentioned Local 413 to her and she was un-
aware of the existence of the contract between Respond-
ent and Local 413. While employed at Respondent's
shop Rivas received no paid vacation, paid holidays, paid
sick leave, breaks, scheduled wage increases either after
60 days of employment or in November 1979, or any
health and welfare benefits. Rivas testified that while she
was employed at Respondent's shop there was no union
steward present there and no grievance procedure in
effect.
Nestor Rivera, an employee of Respondent since Janu-
ary 1980, testified that no one from Respondent ever told
him about Local 413, that he never became a member of
or paid dues to Local 413, and that he never heard of its
existence until February 1980. He also testified that while
employed at Respondent's shop he never received paid
sick leave, breaks, time and a half for overtime which he,
in fact, worked, or health and welfare benefits. While
Rivera was employed at Respondent's shop there was
neither a shop steward present nor a grievance proce-
dure in effect.
Thus, counsel for the General Counsel's employee wit-
nesses fully and credibly testified to the complete ab-
sence of any administration, effectuation, or enforcement
of the existing collective-bargaining agreement between
Respondent and Local 413 over the entire period of their
employment. As noted, Respondent offered no employee
witnesses to counter their testimony.
The 1977 contract expired on November 1, 1980, yet
Paya did not undertake negotiations toward a new agree-
ment.3 3 At the hearing he clearly stated his lack of any
intention to do so. Jack Jacobowitz testified that no new
negotiations have been undertaken with Local 413
toward a new labor agreement.
From the above-described record evidence, the testi-
mony of witnesses, and documentation it is abundantly
clear that until the events of February 1980, discussed
infra, the 1977 collective-bargaining agreement between
Respondent and Local 413 had never been administered,
effectuated, or enforced. The Union had, over the life of
the contract, insofar as its representative status is con-
cerned, become dormant and therefore no longer repre-
lave's testimony appears to be not totally consistent This factor has not
been overlooked by me in making my decision The Januar) discussion
between Malave and her coworkers is discussed infra
33 Paya testified that, after he learned that Respondent's employees
were trying to get a nesw union in, he slopped enforcing the contracl
sented the employees of Respondent at the time the
events described below occurred. Sweater Bee by Banff
Ltd., 197 NLRB 805 (1972).
C. The Organizing Campaign
Sometime in January 198034 certain of Respondent's
employees discussed the need for a union at the shop.
Unlike the individuals who testified at the hearing, some
of these employees had at least heard of Local 413 be-
cause, according to Corina Malave, one or more of them,
on this occasion, stated that they had attempted to call
the Union3 5 but that it never came. After hearing this
dissatisfaction voiced Malave asked those present if they
really wanted a union. When they assured her that they
did, Malave replied that she would call Local 155.
On January 24, Malave called Local 155 and spoke
with Ramonita Guzman, an organizer for that labor or-
ganization. She informed Guzman that her fellow work-
ers at the shop were interested in having a union repre-
sent them. She gave Guzman the name and phone
number of Maria Baez, one of the fellow employees with
whom she had spoken earlier. Guzman promised Malave
that she would call Baez and schedule a meeting. The
same day Guzman contacted Maria Baez by telephone
and a meeting was scheduled for Wednesday, January
30, at Baez' home. On the appointed date Guzman and a
fellow organizer, Norman Lewis, visited Baez' home to
discuss future plans. Guzman described to Baez the bene-
fits of union representation, answered her questions, left
leaflets and authorization cards with her, and obtained
her signature on one of them. On Thursday, January 31,
Baez called Guzman to schedule a union organizational
meeting for Friday, February 1. Guzman advised Baez to
invite other employees to the meeting. On February 1,
the scheduled meeting took place at Baez' home. Present
were Guzman and Lewis for Local 155 and 10 to 18 em-
ployees, including Malave and Baez. Guzman explained
to those present the benefits of unionization. Questions
were asked. All employees present signed cards, includ-
ing one Carlos Caban. Additional cards were given to
those present for further distribution, including to Carlos
Caban, who gave some of them to other employees. Ar-
rangements were made for a second meeting to be held
on Friday, February 8. Between February I and Febru-
ary 8, Malave and Baez distributed union cards to other
employees and told them of the benefits to be derived
from union representation. Malave obtained signatures
from all of the employees to whom she gave cards.
Other employees, including Baez, as well as the organiz-
er, distributed additional cards and discussed Local 155
favorably with the workers. Malave and Baez did some
of their soliciting on behalf of Local 155 just outside the
factory after quitting time as did Guzman.
14 Hereafter all dates are in 198) unless otherwise specified
as Probably Local 413 Yet. the record is not clear, and perhaps one of
the employee, had called another union to have it attempt an organlza-
tional drive There is no indication that L oval 413 was mentioned by
name and it is quite possible that Malave did not know what union the
other employees were talking aboul Thus. Malave's testimony that she
had never heard of l. oal 41 until -:ehruars may) well he true
649
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 8 the second employee meeting was held
at Maria Baez' home. This meeting was very similar to
the first but was attended by only seven or eight employ-
ees. Guzman again explained to those present the benefits
of unionization. The employees present signed Local 155
authorization cards and some, Baez, Malave, and Caban,
were given additional cards for distribution.
Baez testified with regard to the February 8 meeting
that the meeting was scheduled for lunchtime, and that
when she and the other employees left the shop to go to
her home to conduct the meeting she noticed Jack,
Beirel, and Leibish Jacobowitz and the cutter, who is a
relative of the Jacobowitzes, standing outside the shop
on different corners, one next to the factory, one across
the street, and one near her home. The Jacobowitzes re-
mained there observing as employees went into and left
Baez' home. The Jacobowitzes were also noticed at their
stations by Guzman, who stated that they were standing
near the bus stop 2-1/2 blocks from the factory and that
to get to Baez' home employees had to pass by the Ja-
cobowitz family. Baez testified that she had never before
seen the Jacobowitz family standing there as they were
doing on this occasion. None of the Jacobowitzes testi-
fied concerning this incident nor denied that the purpose
of their presence was surveillance of the union meeting.
Jack Jacobowitz testified that he found out about
Local 155's organizing campaign when he saw union or-
ganizer Guzman distributing materials in the street, on
the corner, in front of the factory at some time before
the layoff which occurred on February 13.36 He stated
that he could not recall whether he also saw his employ-
ees distributing literature and did not look to see if they
accepted the literature passed out by Guzman. Ja-
cobowitz testified that he just got into his car and went
home. The day after Jacobowitz first noticed Guzman
distributing literature, one of Respondent's employees3 7
brought Jacobowitz a Local 155 authorization card and
it was at that time, he testified, that he learned that
Local 155 was organizing. According to Jacobowitz, he
did nothing about Local 155's attempt to organize his
employees. In light of the credited testimony of Re-
spondent's employees, discussed infra, however, I do not
credit Jacobowitz' statement that he did nothing about
Local 155's organizing campaign. Indeed, Jacobowitz
testified openly that he did not want Local 155 to repre-
sent his employees. He stated that he contacted Local
155 after the picketing began and learned that it was de-
manding 18 percent of the wages, presumably in contri-
butions from employers. He also testified that he learned
from acquaintances3 8 that Local 155 was a "bad union"
and that he would "have to close down his place" if it
succeeded in organizing his employees. Local 413 on the
other hand, according to Jacobowitz, did not "want
extra money from wages," just vacations, holidays, sick
leave, and dues. Local 413 only wanted $2.50 or $5 per
week per person. Though Jacobowitz testified concern-
3s Jacobowitz inconsistently also testified that he called Local 413
after his employees began picketing.
3a Jacobowitz stated that he could not remember who this employee
was.
a8 Jacobowitz refused to divulge any names but maintained that they
were business associates.
ing these particular amounts, he was unable to state pre-
cisely what the $2.50 or $5 per employee was for, health
and welfare or what. On this basis Jacobowitz decided
he did not want Local 155 representing his employees.
Yet, having reached this decision, Jacobowitz testified
that he did nothing to prevent Local 155 from obtaining
representative status. I reject his testimony as untrue.
D. Respondent's Reaction to the Organizing
Campaign
Between February I and February 8, Guzman visited
the entrance to the plant both in the morning and in the
evening to distribute materials and solicit Respondent's
employees to join Local 155. When the Jacobowitz
family discovered her presence, Jack, Leibish, Beirel,
Sylvia, and her sister went outside the plant and stood at
the corner about 10 feet from Guzman, and, as Guzman
handed a leaflet to an employee, one of the Jacobowitzes
would take it away and rip it up. Jack and Leibish
would admonish employees not to speak to Guzman, tell-
ing them repeatedly that she was from the Mafia and
that Local 155 was no good. This type of incident was
witnessed, according to Guzman, by about 20 employees.
On February 7, at noon, Guzman boarded a bus with
certain employees in order to talk with them. When the
Jacobowitzes saw this, they, all five, boarded the bus
with them. When Guzman got off the bus two stops
down the line, all five Jacobowitzes got off the bus too.
On other occasions Guzman witnessed the Jacobowitzes
coming to an going from work, and on these occasions
she noted that Jack, Leibish, and Beirel came to work in
separate automobiles or together in a panel truck and did
not take the bus.
I conclude that the harassment which took place on
the corner in front of the factory was meant purposely to
interfere with the Section 7 rights of Respondent's em-
ployees and that the Jacobowitzes boarded the bus for
the same purpose, as well as to engage in surveillance of
the organizational activity of said employees, all in viola-
tion of Section 8(a)(l) of the Act.
According to an allegation in the complaint, Local 413
and Respondent started to enforce the 1977 collective-
bargaining agreement on February 5. Paya testified that
it was in February 1980, before the layoff of February
13, that he went to Jack Jacobowitz and told him that
there was still a contract in effect and he wanted it en-
forced. He testified further that it was after he made this
request of Jacobowitz that he first learned that Respond-
ent's employees were trying to get into Local 155. Ac-
cording to Paya, he attempted to get the employees to
sign new authorization cards but obtained only a few sig-
natures. The majority of employees advised him that
they were not interested in Local 413 and would not
sign his cards. After this rebuff, he stated he walked out
and did not attempt to enforce the contract.
After testifying to the above description of events
counsel for the General Counsel faced Paya with his affi-
davit in which he stated that some time after telling Jack
Jacobowitz that he wanted to enforce the existing con-
tract he returned to the shop and was presented with 62
signed Local 413 authorization cards by an employee
650
SOUTHLAND KNITWEAR, INC.
whose name he could not recall. 39 Paya then admitted
that the affidavit was correct, and that he had, in fact,
received 62 authorization cards from someone at the
shop, all of which were signed by employees. The 62
cards represented a substantial majority of Respondent's
employees. Despite obtaining the apparent support of a
majority of Respondent's employees, Paya testified, he
nevertheless walked away because when he went to the
shop he received "a very cold reception from the work-
ers." The anomalous set of circumstances presented by
Paya's testimony is in short that he suddenly, and for no
apparent reason, decided to enforce a contract which
had lain dormant and unenforced for years, but, after
being presented with authorization cards from a vast ma-
jority of Respondent's employees, he decided to walk
away and not to represent them or to enforce the exist-
ing contract. Before walking away from the unit, howev-
er, Paya told Jacobowitz, according to Paya's testimony,
that he had never received any of the dues which, ac-
cording to the contract, should have been deducted from
employees' wages, and that dues would have to be de-
ducted, as well as payments made to the welfare and
pension fund. 40 Presumably, it was some time after this
discussion that Paya discovered that the employees were
not interested in Local 413 and he decided for that
reason to walk away. I find Paya's testimony so incon-
sistent as to be totally incredible.
Jack Jacobowitz stated that it might be true that Local
413 tried to enforce the 1977 contract in February 1980
but he did not know. According to Jacobowitz, in Janu-
ary 1980 Paya presented him with Local 413 authoriza-
tion cards signed by "a majority of the 100 to 120 em-
ployees." He, Paya, announced that Local 413 was the
representative of Respondent's employees and that he
was going to enforce the contract which had been signed
in 1977. Jacobowitz testified that he agreed to recognize
Local 413, as well as the contract signed in 1977, to col-
lect union dues, and to contribute to the Union. Thus,
Jacobowitz and Paya supported each other's testimony.
Several rank-and-file employees talked about Paya's
presence at the factory in early February. Carlos Caban
stated that on February 4, the Monday following the
first meeting between Local 155 representatives and the
employees, Paya visited the shop and talked to the em-
ployees, advising them that Local 413 was there repre-
senting them.4 ' On February 6 Beirel Jacobowitz called
Carlos Caban aside away from the other employees and
told him that he had to sign an authorization card for
Local 413. Jacobowitz added that if Caban did not sign
39 As vwill be seen in/fr, the cards were apparently supplied to Paya by
Respondent.
40 Paya inconsistently testified at one point that, after receiving the 62
authorization cards, he did not again speak with Jacohowitz Elsewhere.
however. he testified that this discussion concerning the necessity of de-
ducting dues and making payments to the welfare and pension fund oc-
curred after he received the 62 cards, and that it was during this discus-
sion that he advised Jacoboswitz that he wanted the contract enforced He
testified, again inconsistently, that thereafter the contract was enforced.
only to contradict himself later. stating that it was not enforced
4' Maria Baez testified to having seen P'aya for the first time at the
shop about this time. Although Baez placed the first appearance of Paya
at the shop as occurring on or about February I . it is likely that it oc-
curred on Monday, February 4. She did not speak to Paya on this occa-
sion but he was identified to her by a coworker
the Local 413 card he would "have no more work."
Caban refused to sign, telling Jacobowitz that he "had
never seen any papers from Local 413" and did not
know what benefits he would receive by belonging to
that Union. Jacobowitz had Local 413 authorization
cards with him at the time and gave one to Caban which
Caban did not sign at the time.
The following day, February 7, a Thursday, when
Caban arrived at work, he was called into the office
where both Beirel and Sylvia Jacobowitz were present.
Beirel told Caban that he had to sign a card for Local
413. Caban did so and dated it as well. When Beirel no-
ticed that Caban had dated his card, he tore it up and
gave him three more cards to sign, advising Caban to
leave the cards undated. Caban signed all three and re-
turned them to Beirel and Sylvia.
On February 11, according to Caban, at or about 8
a.m., he was receiving a delivery at the shop when Lei-
bish Jacobowitz called him over to talk to him. He told
Caban that he knew that he had signed a card for Local
155. Caban denied signing the card. Leibish stated that if
the workers tried to bring in Local 155 he would have to
close the factory. He added that Local 413 was giving
good benefits.
Maria Baez testified that on Thursday, February 7,
about 6 p.m. Beirel Jacobowitz called her home and told
her that he did not want to see her, her daughter, or her
mother working there anymore. Baez asked Beirel why
she and her mother and daughter had been fired and he
replied that he did not have to give her any reasons.
Baez replied that he had to give her an explanation, that
she was going to go to the shop the following day to get
her check, and that at that time he would have to give
her an explanation.
The following day, February 8, Baez went to the shop
to pick up her check and she talked to Beirel Ja-
cobowitz, who asked her what was happening. In return,
Baez asked what was happening and Beirel asked her if
she wanted her job back. Baez insisted on wanting to
know why he did not want her on the job. Beirel, in
reply, told her to wait for Leibish. When Leibish arrived
Baez asked him what reason he had for firing her. Lei-
bish replied that there was not much work. Baez contra-
dicted him, saying that there was a lot of work. Leibish
replied that someone had told him that she was trying to
bring a union in. Baez denied this. Leibish told Baez that,
if she wanted to come back to work, she should come
back the following Monday with her mother and daugh-
ter but should not talk about any union. He added that, if
Baez heard anybody talking about Local 155, she should
report it to him. He also stated that the following
Monday, February II, a representative of Local 413
would call to talk to the employees.
The following Monday, according to Baez, Sylvia Ja-
cobowitz called the workers into the office in small
groups of threes or fours. When Baez entered the office
in her small group she found Paya there talking about
Local 413. In Baez' group of employees were two new,
employees who had just been hired. Paya told Baez and
the other employees that someone was trying to bring in
a union but that the factory already had a union, as well
651
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a contract which still had a year and a half to go until
it expired. He stated that no new union could come in
under the circumstances. Baez replied that, if there was
already a union in the shop, where was the shop steward
and where were the benefits. Paya stated that there was
no shop steward because the workers had not selected
one and that, as far as the lack of benefits was con-
cerned, he would have to investigate that matter with
the owner. Baez then asked Paya how employees could
locate the Union if they had problems with the boss or
the foreman. Paya replied that any employee could con-
tact him by telephone. Baez rejoined that the employees
did not know either the telephone number or address of
Local 413. Paya then advised Baez that he would return
the following day to get together with all of the workers
to elect a shop steward. According to Baez, this never
occurred, although she did notice Paya in the shop 2
days later talking to employees.
After she had left the office after talking to Paya, Baez
testified, Jack Jacobowitz saw her outside the office and
called her over. He asked her why she had caused "all
that trouble." She denied any complicity but Jacobowitz
continued the conversation by asking her why she
wanted a union when the employees already had a
union. He told her that, if she brought in another union,
he would have to close the factory. Baez replied that she
had never heard anyone in the shop talk about any
union. He then told her that if she wanted to continue to
work there she would have to sign a Local 413 authori-
zation card. 4 2 Baez replied that she would sign the
Local 413 card the following day after Jacobowitz ex-
plained all of the benefits to her, but he insisted that she
sign the card that day, and told her that before leaving
that afternoon everyone had to sign a card. Later, at 5
p.m., when Baez was about to leave, she saw Jack and
Beirel Jacobowitz at the exit door telling all the employ-
ees to sign cards. They ushered the employees into the
office where Sylvia Jacobowitz had them sign authoriza-
tion cards for Local 413. Baez noted that four or five
employees went into the office where Sylvia was. She
and her daughter were also called into the office for this
apparent purpose, but were then called aside by BIeirel
Jacobowitz, who told Baez that it would be better if she
and all of the other employees signed authorization cards
for Local 413. He said that, if they did not do so, she,
her mother and her daughter would all lose their jobs
because they, the Jacobowitzes, would close the factory.
He explained that he could do this because he had many
other places where he could send the work.
Maria Baez and her daughter then went into the office
where Sylvia was. There were already several employees
in there. Sylvia had the cards on the desk, and, when
Baez and her daughter entered the room, Sylvia gave
each of them a card and told them to sign the cards but
not to date them. Both Baez and her daughter complied
with Sylvia's instructions. Baez noticed that the other
employees present, about four in number, also signed
cards.
42 Jack Jacobowitz denied Ihat he ever solicited any employees to join
Local 413 1 credit Baez' description of this incident
A few days after Paya's visit and Baez' signing of the
Local 413 authorization card, she was walking to work
when Leibish Jacobowitz called her over to talk with
her. He took her into the hall at the shop and told her
that she should talk to the other employees and convince
them that they should accept Local 413. He stated that
he was going to give Baez a vacation, pay her overtime,
give her additional benefits, and make her the shop ste-
ward in Local 413. He told her that if she wanted to stay
home for 2 or 3 days she could do so and he would pay
her for those days. He said that he would do this for
Baez only and not for the other employees. Baez agreed
to talk to the other employees as Leibish requested but
did not do so.
Two days after Baez signed the card, Paya again vis-
ited the shop. While Paya was there Baez asked him if it
was obligatory for one to sign a card against his will,
adding that she knew this was against the law. Paya told
Baez that no one was obligated to sign a card against his
will. Baez thereupon told Paya that she wanted her, her
daughter's, and her mother's cards back because they did
not want Local 413 to represent them. Paya promised to
bring Baez' card to her the following day. (He never did
so.) Paya then told Baez that he did not have a contract
with Jack Jacobowitz, although earlier he had told her
that he did have such a contract. He advised Baez that
he was trying to get Jacobowitz to give the employees
benefits, and, once there was an agreement, Paya would
sign the contract.
Employee Nestor Rivera credibly testified that some-
time in early February Beirel Jacobowitz gave him four
Local 413 authorization cards and told him to sign them.
Beirel added that if Rivera did not sign the cards he
would have no work. Rivera replied that he would sign
the cards later. Two or three days later while just out-
side the office, Beirel again told Rivera to sign the cards
and this time he did so. He also told Rivera to leave the
date blank. Rivera complied.
Employee Melba Ondina Rivas testified that when she
reported to work on the morning of February 13 she was
ordered into the office by Beirel, who then told her,
"You want to work, you must sign this card." Rivas
became angry and told Jacobowitz that she did not want
to sign the card because she did not like that Union. He
then insisted that she sign the card, telling her that Local
413 was a good union. Sylvia, who was present, also told
her to sign. She then signed the card against her will,
stating, "I don't like this." She was then ordered into the
shop.
Employee Corina Malave testified that on February 4
or 5 about 4 or 5 p.m. Beirel and Leibish Jacobowitz
called her over and told her to sign a Local 413 authori-
zation card because Local 413 was a good union for the
employees because they would not have to pay much
money and that Local 413 was also good for the Compa-
ny. Malave said that she did not want a union. Jack Ja-
cobowitz then arrived; Malave started to leave, but was
called into the office by Sylvia and Rifka Jacobowitz,
who told her to sign a card. They told Malave that her
coworkers had already signed cards. Malave asked if she
could take the card home and sign it later but Sylvia told
652
SOUTHLAND KNITWEAR, INC
her that she had to sign it there in the office. Malave re-
fused and Sylvia said, "O.K. Tomorrow we'll talk."
Malave went home without signing the card.
On February 7, according to Malave, Beirel Ja-
cobowitz changed Malave's work assignment from
sewing collars to sewing sleeves. Since the change in
jobs adversely affected her production Malave asked
Beirel why he had switched her from collars to sleeves.
Beirel replied by asking her if she had signed the Local
413 authorization card. Malave in turn asked if she had
to do so. Beirel replied in the negative. Later, however,
Beirel came back and again asked Malave if she had yet
signed the card. When Malave stated that she had not
done so, Beirel said that if she would sign the card he
would put her back on her old job. Malave again refused
and was kept on sleeves until February 12 when she was
put back on her old machine doing still another job.
E. The Deduction of Union Dues
According to Respondent's records4:3 it just began de-
ducting dues from its employees' wages on behalf of
Local 413 for the pay period ending February 10. The
first deductions were actually made on February 13.
Paya testified that he could not say whether checkoff au-
thorizations were signed by Respondent's employees.
Though dues-checkoff authorizations were among the
documents subpenaed by counsel for the General Coun-
sel, none were produced. In accordance with counsel for
the General Counsel's motion I draw an adverse infer-
ence to the effect that no such documents exist.
When Jack Jacobowitz was asked if any of his em-
ployees had signed dues-checkoff authorizations, he re-
plied that he did not know. He also stated initially that
he did not know if dues were deducted. Later, however,
he admitted that he deducted $2.25 from his employees'
weekly paychecks. He stated that he began to do this
after Paya told him that he was going to enforce the
contract. Jacobowitz stated, however, that he never for-
warded the dues to Local 413 because he wanted Local
413 to remove Local 155's picket line which was later
established.
Certain employees also testified concerning dues de-
ductions. Employee Nestor Rivera testified that Re-
spondent deducted dues from his wages without consult-
ing him. He stated that he had never signed any authori-
zation permitting Respondent to deduct dues from his
wages. Maria Baez similarly testified that Respondent
took $2.25 from her February 13 check for dues to Local
413 and that she never signed any authorization for the
deduction. Carlos Caban also testified that dues were de-
ducted from his February 10 and 13 paychecks in the
amounts of $2.25 and $1.50. He received both of these
checks on February 13, the day he was laid off. Thus the
4s Counsel for the General Counsel moved that an adverse inference
be drawn if no records were produced to the effect that no dues wsere
taken out of employees paychecks for any period of time until the first or
second week of February 1980, at which time union dues were deducted
for Local 413. Records received subsequent to the closing of the hearing
and testimony at the hearing clearly prove counsel for the General Coun-
sel's contention, thus making the drawing of an adverse inference unnec-
essary. The records, which purportedly cover all dues deductions, indi-
cate that deductions were made only for the payroll periods ending Feb-
ruary 10, 17, and 24. 1980
$2.25 represented dues deductions for the full workweek
ending February 10 and the $1.50 covered the period
February 11-13. Caban denied that he never authorized
the deductions. Melba Ondina Rivas testified in a like
manner that dues were also deducted from her last two
checks and that she had never authorized the deductions.
Finally, Corina Malave also had dues deducted from her
last two paychecks in the amounts of $2.25 and $1.50.
Malave never signed a Local 413 union card much less a
dues-deduction authorization.
The evidence is overwhelming that dues for Local 413
were deducted from the paychecks of Respondent's em-
ployees without Respondent's first obtaining authoriza-
tion from the employees to make such deductions. By
making the unauthorized dues deductions, Respondent
violated Section 8(a) (1), (2), and (3) of the Act. Wels-
bach Electric Corporation, 236 NLRB 503 (1978).
F. The Layoffs
The complaint alleges that on February 13 Respondent
laid off 26 named employees, as well as other employees
whose names were unknown at the time. Since the issu-
ance of the complaint payroll records came into counsel
for the General Counsel which indicate that prior to
February 13 Respondent had 98 employees on the pay-
roll. These records indicated that as of February 24 Re-
spondent employed only 18 employees. 44 These payroll
records were placed in evidence and so indicate, as
counsel for the General Counsel contends, that some 80
or more employees were, in fact, laid off on or about
February 13. Respondent admits that the records are ac-
curate and that whatever number of laid-off employees is
indicated in the records is the true number of employees
laid off.
As far as the reasons for the layoffs, Jack Jacobowitz
offered the following statement to the Board agent inves-
tigating the case:
On or about February 14, 1980, I temporarily
laid-off about 80 employees because the spring
season was finished and there was no work. My
major accounts45 were finished because the latest
date of shipment was February, 1980. As we get
new orders and Local 155 stops picketing, then I
will hire back some of the employees who were laid
off. The reason why I have to wait for Local 155 to
stop picketing before I can rehire the employees is
because the accounts cannot be delivered if the
union picketing line is there.
The employees who are presently working are
cleaning, packing and shipping knitgoods that have
already been cut and sewed. I have not received
any order since the union, Local 155, has been pick-
4 As of the date of the hearing Resxondent, according to Jack Ja-
cobowitz, employed It employees He took back 7 or 8 employees and
found jobs for 15 to 17 employees elsewhere
4s No business records were offered in evidence to support Respond-
ent's economic defense
653
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eting the shop.4 ' I am able to pick up orders, but I
have not accepted the orders because picketing will
prevent me from delivering the orders to the cus-
tomers.
The accounts I was offered I told them that I
could not take, handle them right now until I settle
the union problems. I did not recommend any of
these accounts to other employer[s]. However, if
Local 155 does not stop picketing, I will recom-
mend the accounts to other companies.
Paya testified that after he received word that Re-
spondent had laid off the majority of its employees he
called Respondent and talked with Jack Jacobowitz. The
latter told Paya, "All my work is done outside, I send all
my work out."
Several employees testified concerning the events of
February 13. Maria Baez stated that about 5 or 10 min-
utes to 5 p.m., just before quitting time, Leibish and
Beirel called all the workers together in groups. Leibish
told Baez' group, numbering about 40, that there was no
work--that work was slow. He added that the Company
had been waiting for an order which never came and
that maybe in 3 or 4 months there would be work.
With regard to the amount of work available, Baez
testified that just prior to February 13 there had been a
lot of cut work to be done but that this work was left in
the hall and not brought in to be sewn. Later this availa-
ble work was taken away and sent out, apparently to be
sewn elsewhere. Baez witnessed the cut goods being
taken out and loaded on trucks. Before February 13
there had been lots of work to do.
Carlos Caban testified that on February 13 Leibish Ja-
cobowitz called him and two other workers aside about
4:45 p.m. and told them there was no more work, and
that they should go and collect unemployment for 2 or 3
weeks after which time he would reopen the factory.
Caban also noted that during the week just prior to Feb-
ruary 13 there was less work being made available to the
workers in the shop and more unfinished goods being
shipped out to be sewn elsewhere.
Nestor Rivera testified that he also was laid off with
the other workers on February 13. Rivera stated that just
before the layoff there was a lot of finished work in the
shipping department where he worked which still had to
be shipped out. Rivera also testified that the Company at
this time also shipped out unfinished goods to be finished
elsewhere in larger quantities than usual.
Melba Ondina Rivas testified concerning the events of
February 13 that, after her discussion with the Ja-
cobowitzes when she was forced to sign the Local 413
union card, about 2 or 3 p.m., Beirel Jacobowitz an-
nounced that there was no more work. He said that he
did not know how long there would be no work but that
it could be about 3 months. He told the employees "to
go away" and that they should go collect unemployment
4' Jack Jacobowitz testified that since February 1980 he has received
orders. He also stated that he refused to accept certain orders because of
the picketing, although he could have accepted them if he had chosen to
do so.
compensation. Rivas also testified that just prior to the
layoff there had been a lot of work to be done.
Corina Malave testified that she was told of her layoff
on February 13 by Leibish Jacobowitz. She was told
along with about 10 other employees in a group that the
employees had to go home because there was no work.
She finished what little work she had left to do and went
home. Malave, like other employees, testified that on
Monday, February 11, she noticed that Respondent was
taking a lot of work out of the factory into the street,
unfinished sweaters in particular. Prior to that she had
noticed only small amounts of unfinished sweaters being
taken out.
G. The Picketing
It is alleged in the complaint in Case 29-CA-8096 that
in February47 1980, shortly after the layoff, Respond-
ent's employees began picketing in protest of Respond-
ent's unfair labor practices. Respondent admits that pick-
eting was undertaken, but not that it was in order to pro-
test any unfair labor practices.
Ramonita Guzman testified that Local 155, as a result
of the layoff of February 13, decided to put up a picket
line to picket the unfair labor practices of Respondent.
The picket line was established on February 20 after
legal counsel had been obtained, and remained in effect
until June 2. Four or five employees picketed every day
as did Guzman. Maria Baez, Nestor Rivera, Melba
Ondina Rivas, and Corina Malave so testified. I find
from the credited testimony of the witnesses that the
picketing began on February 20 and was for the purpose
of protesting Respondent's unfair labor practices. The
testimony of the witnesses as to the purpose of the pick-
eting is supported by its timing-immediately following
the February 13 layoffs and the filing of charges.
According to the complaint, on May 20 Leibish Ja-
cobowitz offered to obtain work for one of the strikers,
Corina Malave, at another shop if she would resign from
Local 155 and cease striking, picketing, and otherwise
participating in activities on its behalf. Respondent
denied the allegation.
Malave testified that on or about May 20 Leibish Ja-
cobowitz told her to go upstairs to the second floor.
When she did so, Leibish told her to leave the picket line
and, if she did so, he would obtain work for her. Malave
asked where he would get her a job and Leibish replied
that it would be with another company, not with South-
land. Malave retorted that her job was at Southland, not
at another company. Leibish insisted that he could get
her better work with more money if she would just leave
the picket line. Malave refused the offer. Since Respond-
ent did not call any witnesses to refute Malave's credited
testimony, I find that the incident occurred as described
by Malave.4 8 Similar incidents have been found violative
47 The allegation states that picketing began on February 14 but the
evidence indicates, and I find, that it was initiated on February 20.
4i Carlos Caban testified to a similar incident which though not al-
leged in the complaint tends to support Malave's testimony on this issue.
Caban testified that one day in June Leibish Jacobowitz called him and
told him that, if he would leave the picket line. Leibish would get him a
job with another company. Caban replied that he would have to think
about it Later, however, about June 10, he accepted Respondent's offer
and went to work at a shop on Hall Street
65h4
SOUTHLAND KNITWEAR, INC.
of Section 8(a)(1) of the Act by the Board in previous
cases and I so find here. Skrl Die Casting, Inc., 245
NLRB 1041 (1979).
On June 5 Respondent sent to Corina Malave a tele-
gram which stated: "Please come back to work immedi-
ately. Work is available today. Unless you come back to
work, we will replace you with another worker." It is
counsel for the General Counsel's contention that this
offer was not unconditional in that it did not give
Malave sufficient time to make a decision. In agreement
with counsel for the General Counsel, I find the offer to
be conditioned upon acceptance and return within an un-
reasonably short period of time and therefore not uncon-
ditional. 49
After receiving the telegram Malave talked to a repre-
sentative of Local 155 who told her that she should call
Respondent if she intended to go back to work at South-
land. She did so 3 or 4 days after having received the
telegram. Leibish Jacobowitz told her that there was no
work for the time being, and that she should call in 2
weeks. Malave agreed to do so but when she called 2
weeks later Leibish told her that there was no work.
There were no further communications between Re-
spondent and Malave. The totality of evidence with
regard to Respondent's intent to rehire Malave convinces
me that, although an offer of reinstatement was initially
made because there was, in fact, a job opening, it was
decided not to recall Malave because of her history of
support for Local 155, including her picketing on its
behalf.5 0 The refusal to recall her under these circum-
stances is violative of Section 8(a)(l) and (3) of the Act.
Melba Ondina Rivas testified that when she came
home from vacation in July she found waiting for her a
telegram from Respondent which stated that she should
return to work. After receiving the telegram she re-
turned to the shop and spoke with Beirel Jacobowitz
about having received it. Beirel replied that she should
wait there awhile until he fixed a damaged machine.
Rivas waited 2 hours. Finally, Beirel returned and said,
"Ondina, I want you to work here, but I don't want any
more problems with [the] union. You [are] good, I am
good. No union, no problems." Rivas replied that it was
"OK." Then Beirel said that it would take a long time to
repair the machine and she should therefore leave and
call back the following day. She did so, and three or
four times after that, but each time Beirel told her that
the machine had not yet been repaired. The last time she
called was on September 10 at which time she received
the same reply.
The uncontradicted testimony of Rivas is credited. Re-
spondent offered no testimony in refutation. I conclude
that Rivas made an unconditional offer to return to work
but that Respondent failed and refused to offer her rein-
statement. Beirel Jacobowitz' admonition to Rivas con-
cerning her refraining from union activities convinces me
that the failure of Respondent to recall her was based on
her previous union activities. The failure to recall was
therefore clearly in violation of Section 8(a)(1) and (3) of
the Act.
49 Seminole Asphalt Refining. Inc., 225 NLRB 1202 (1976): Michael .t
Schaefer. an Individual Proprietor, 246 Nl.RH 181 (1979)
so Respondent offered no other explanation.
IV. ANAI YSIS ANI) CONCLUSIONS
A. Ca.se 29-CA-7765
From the above set of facts it is clear that there exist-
ed a longstanding relationship between Paya and Re-
spondent but little if any relationship which included
representation of Respondent's employees by Local 413.
Indeed, the succession of contracts appears to be nothing
more than paper transactions designed to protect Re-
spondent from having its employees receive legitimate
representation from other labor organizations. Paya or
Local 413, according to Jack Jacobowitz, in return for
this protection, received $5 per employee per week be-
tween 1970 and January 1980, except for those periods
during which Respondent had "disappeared."
When Local 155 suddenly appeared on the scene in
late January and early February 1980, Respondent quite
obviously contacted Paya to use the dormant contract as
a bar to the organizational activities of that Union. Thus,
I reject the testimony of Jack Jacobowitz and Paya that
it was mere coincidence that brought Paya to Respond-
ent's place of business to suddenly begin enforcing the
contract, and find instead, in accordance with the prob-
abilities of the situation, that Jacobowitz called Paya as
soon as he found out that Local 155 was organizing and
tried to get Paya to convince the employees that they
should choose Local 413 rather than Local 155.5'
In addition to interfering with the employees' rights to
organize by seeking to have them join Local 413 instead
of Local 155, Respondent's agents also engaged in sur-
veillance of their activities and interrogated and threat-
ened them concerning these activities under the circum-
stances described above. Thus, I find that Respondent in-
terfered with the Section 7 rights of its employees and
independently violated Section 8(a)(l) of the Act by
taking Local 155 leaflets from employees and tearing
them up, admonishing employees not to speak with the
Local 155 representative, telling employees that the
Local 155 representative was from the Mafia, keeping
employees' union activities under surveillance, soliciting
and forcing employees to sign Local 413 authorization
cards, threatening employees with loss of employment if
they failed to sign Local 413 authorization cards, giving
the impression of surveillance of employees' union activi-
ties on behalf of Local 155, threatening to close the fac-
tory if the employees tried to bring in Local 155, interro-
gating employees concerning their activities on behalf of
Local 155, interfering with the rights of employees to
discuss their union preferences and activities, telling an
employee to advise management if the employee heard
anyone discussing Local 155, promising employees var-
ious benefits in return for talking to other employees in
support of Local 413, and promising and granting em-
ployees benefits for abandoning their support of Local
155.
Inasmuch as the above-described independent 8(a)(l)
violations occurred in the context of a campaign by Re-
spondent to assist Local 413 at the expense of Local 155
.' Jacobowi1 admitted that he did not want Local 155 to represent his
employees because it was 11,) oo epnsive
655
DECISIONS ()F NATIONAL LABOR RELATIONS BOARD
in order to undermine Local 155's organizing campaign,
I find that they are also violative of Section 8(a)(2) of
the Act. Southern Stevedoring Company Inc., 230 NLRB
609 (1977). Similarly, I find that Respondent violated
Section 8(a)(2), (3), and (1) of the Act by commencing,
on or about February 5, 1980, to put into effect and
thereafter to enforce the long dormant collective-bar-
gaining agreement executed by Respondent and Local
413 in 1977 in order to keep Local 155 from organizing
its employees, and by deducting dues for Local 41352
from the paychecks of its employees without first obtain-
ing written authorization from them to do so.
I find further that Respondent violated Section 8(a)(1),
(2), and (3) by laying off Maria Baez, Juana Baez, and
the mother of Maria Baez because the former employee
actively supported Local 155 and rejected Local 413, the
labor organization favored by Respondent as the repre-
sentative of the employees. I also find that the layoff of
February 13 was not economically motivated but was
the direct result of Respondent's fear that the Local 155
organizational campaign might be successful despite Re-
spondent's unlawful efforts to have Local 413 belatedly
return and "represent" its employees. The evidence is
quite clear from the testimony of various witnesses that
although there was plenty of work available Respondent
chose to lay off most of its employees and send out un-
finished goods to allied shops to be finished. Indeed, Re-
spondent's agents threatened employees that they would
close the shop and advised them that they could do so
successfully because they could have the work done else-
where. They told these employees that they would take
this step, and, by all the evidence in the record, they car-
ried out this threat, with Jack Jacobowitz' later admit-
ting to Paya that he had done so. Finally, in his own tes-
timony Jacobowitz stated that he had received orders
since the layoff but refused the orders because of the
Local 155 picket line, apparently forgetting that the
picket line was set up only after the layoffs had occurred
and quite obviously because of them. Thus, it is apparent
that the layoffs of February 13 were not economically
motivated, but were in retaliation for the union activity
of Respondent's employees on behalf of Local 155 and in
opposition to Local 413, to fulfill Respondent's threat to
close the factory 53 if Local 155 were successful, and to
keep Local 155 out. The refusal of Respondent to accept
new orders while Local 155 was picketing was similarly
an effort to destroy that Union's campaign to represent
Respondent's employees. Respondent's claim that it re-
jected orders because it could not make deliveries
through the picket line cannot be given any credence
since the evidence is crystally clear that the picket line
was not put up until after Respondent had begun to sub-
contract out its work and had laid off its employees to
discourage unionization. Therefore, the layoffs, I find,
were in violation of Section 8(a)(l), (2), and (3) since
they occurred because of the activities on behalf of
52 Though Respondent apparently failed to forward these dues to
Local 413, 1 find that this fact does not detract from the violation.
$a Though Respondent is still operating the factory on a limited scale,
the threat to close the factory was, in a sense, fully effectuated insofar as
the laid-off employees are concerned.
Local 155 of Respondent's employees and because of
their opposition to Local 413.5 4
B. Case 29-CA-8096
I have already found that the picketing which was un-
dertaken by Local 155 at Respondent's place of business
was initiated because of the unfair labor practices com-
mitted by Respondent, particularly the layoffs of Febru-
ary 13. I have found, in connection with this picketing,
that Respondent offered employment with other employ-
ers to pickets if they would abandon the picketing, and I
have also found that by so doing Respondent violated
Section 8(a)( ) of the Act.
I have further found that, after offering reinstatement
to employees Melba Ondina Rivas and Corina Malave,
Respondent refused to put them back to work after they
made unconditional offers to so return. I have found that
Respondent's refusal to recall these employees was dis-
criminatorily motivated, being based on their support of
Local 155 and their opposition to Local 413, and there-
fore was in violation of Section 8(a)(1), (2), and (3) of
the Act.
V. IHIE I FFEIC T OF: THE UNFLAIR LABOR PRACTICES
UPON COMMERCF
The activities of Respondent set forth above, occur-
ring in connection with its operation described above,
have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
VI. TIHE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), (2), and (3)
of the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take appropriate and affirma-
tive action designed to effectuate the policies of the Act.
In particular, as I have found that employees Maria
Baez, Juana Baez, and the mother of Maria Baez55 were
discriminatorily laid off, and that thereafter approximate-
ly 80 employees, including the same 3 employees, were
discriminatorily laid off, I shall recommend that Re-
spondent be required to offer them full and immediate
reinstatement, with backpay and interest thereon to be
computed in the manner prescribed in F W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpo-
ration, 231 NLRB 651 (1977).56
Having found that the deduction of dues without writ-
ten authorization was violative of the Act and of em-
ployees' Section 7 rights, I shall recommend that Re-
spondent be ordered to cease and desist from continuing
to deduct dues from the wages of employees and further
be ordered to make the affected employees whole by re-
paying to them the amount of dues deducted plus inter-
54 Southern Stevedoring Company, Inc., 236 NL.RB 860 (1978)
" These three employees were temporarily recalled prior to the gener-
al layoff
56 See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962)
656
SOUTHLAND KNITWEAR, INC.
est thereon, said interest to be calculated in the same
manner as lost wages.
CONCLUSIONS OF LAW
I. Southland Knitwear, Inc. and Metropolitan Indus-
tries, Inc., are employers engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Local 155 and Local 413 are labor organizations
within the meaning of Section 2(5) of the Act.
3. By taking Local 155 leaflets from its employees and
tearing them up, admonishing employees not to speak
with the Local 155 representative, claiming the Local
155 representative is from the Mafia, keeping employees'
union activities under surveillance, soliciting and forcing
employees to sign Local 413 authorization cards, threat-
ening employees with loss of employment if they fail to
sign Local 413 authorization cards, giving the impression
of surveillance of employees' activities on behalf of
Local 155, threatening to close the factory if the employ-
ees tried to bring in Local 155, interrogating employees
concerning their activities on behalf of Local 155, inter-
fering with the rights of employees to discuss their union
preferences and activities, telling an employee to advise
management if the employee heard anyone discussing
Local 155, promising employees various benefits in
return for talking to other employees in support of Local
413, and promising and granting employees benefits for
abandoning their support for Local 155, Respondent has
engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(l) of the Act.
4. By engaging in the above-described 8(a)(l) activities
in the context of a campaign to assist Local 413 at the
expense of Local 155 in order to undermine Local 155's
organizing campaign, Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(2) of the Act.
5. By commencing to put into effect and thereafter to
enforce a long dormant collective-bargaining agreement
executed by Local 413 and Respondent in 1977 in order
to keep Local 155 from organizing its employees, and de-
ducting dues for Local 413 from the paychecks of its em-
ployees without first obtaining written authorization
from them, Respondent has engaged in, and is engaging
in, unfair labor practices within the meaning of Section
8(a)(2), (3), and (1) of the Act.
6. By laying off Maria Baez, Juana Baez, and the
mother of Maria Baez because Maria Baez actively sup-
ported Local 155 and rejected Local 413 as the repre-
sentative of Respondent's employees, Respondent has
violated Section 8(a)(1), (2), and (3) of the Act.
7. By laying off approximately 80 of its employees in
order to prevent Local 155 from organizing them and in
retaliation for their support of Local 155 and their rejec-
tion of Local 413, Respondent has violated Section
8(a)(1), (2), and (3) of the Act.
8. By refusing to recall Melba Ondina Rivas and
Corina Malave because of their activities on behalf of
Local 155 and in opposition to Local 413, Respondent
has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(1), (2), and (3) of the
Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER s7
The Respondent, Southland Knitwear, Inc. and Metro-
politan Industries, Inc., Brooklyn, New York, its officers,
agents, successors, and assigns, shall:
I. Cease and desist from discouraging membership in
and activities on behalf of Knitgoods Workers' Union,
Local 155, International Ladies' Garment Workers
Union, AFL-CIO, and assisting Local 413, Office and
Professional Employees International Union, AFL-CIO,
CLC, by:
(a) Taking Local 155 leaflets from its employees and
tearing them up, admonishing employees not to speak
with the Local 155 representative, telling employees that
the Local 155 representative is from the Mafia, keeping
employees' union activities under surveillance, soliciting
and forcing employees to sign Local 413 authorization
cards, threatening employees with loss of employment if
they fail to sign Local 413 authorization cards, giving the
impression of surveillance of employees' activities on
behalf of Local 155. threatening to close the factory if
the employees tried to bring in Local 155, interrogating
employees concerning their activities on behalf of Local
155, interfering with the rights of employees to discuss
their union preferences and activities, telling an employ-
ee to advise management if the employee heard anyone
discussing Local 155, promising employees various bene-
fits in return for talking to other employees in support of
Local 413, and promising and granting employees bene-
fits for abandoning their support for Local 155.
(b) Putting into effect and enforcing the 1977 collec-
tive-bargaining agreement between the Employer and
Local 413.
(c) Deducting dues for Local 413 from the paychecks
of employees.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer to all discriminatorily laid-off employees, in-
cluding Maria Baez, Juana Baez, the mother of Maria
Baez, and all employees laid off on February 13, 1980,
immediate and full reinstatement to their former positions
or, if such positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or other rights and privileges, and make them whole for
any loss of pay they may have suffered as a result of
their terminations in the manner set forth in "The
Remedy" section of the Decision herein.
s? In the event no exceptions are filed as prov ided 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.
657
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Reimburse all affected employees for dues deduct-
ed for Local 413 in the manner set forth in "The
Remedy" section of the Decision herein.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary or useful in complying with the terms of
this Order.
(d) Post at its plant in Brooklyn, New York, copies of
the attached notice marked "Appendix." 5 8 Copies of said
'; 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 L abor Relations Board" shall read "Posted 'ursu-
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced or cov-
ered by any other material.
(e) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
658