Acacio Guerra

National Labor Relations Board - Board Decisions

Jan 9, 1969

174 N.L.R.B. 64 (N.L.R.B. 1969)

64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Acacio Guerra , Individually : Columbia Casuals, Inc.
and Upstate New York & Vermont District
Council , International Ladies' Garment Workers'
Union , AFL-CIO. Case I-CA-6305
January 9, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
Vermont, its officers, agents, successors, and
assigns, and Acacio Guerra, as an individual, shall
take the action set forth in the Trial Examiner's
Recommended Order, as so modified:
Delete the address and telephone number of the
Board's Regional Office at the end of the appendix,
and substitute therefor the following address and
telephone number: 20th Floor, John F. Kennedy
Federal Building, Cambridge & Sudbury Streets,
Boston, Massachusetts 02203, Telephone 223-3300.
On September 4, 1968, Trial Examiner Henry L.
Jalette issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that the Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended dismissal of these
allegations. Thereafter, the Respondent and the
General Counsel filed exceptions to the Trial
Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed.' The
Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and hereby orders that the
Respondent, Columbia Casuals, Inc., Newport,
'At the hearing, the General Counsel moved to have Acacio Guerra, the
principal owner, officer, and director of the Respondent, take the stand
and testify by invoking Rule 43(b) of the Federal Rules of Civil Procedure.
The Trial Examiner denied the motion at that time on the ground that the
attorney for the Respondent did not have sufficient opportunity to consult
with his client
We find merit in the General Counsel's exception to such ruling.
However, except for the allegation of discriminatory discharge as to
employee Carter, the Trial Examiner found most of the violations alleged
by the General Counsel As Guerra testified and was cross-examined by
the General Counsel with respect to employee Carter and the Trial
Examiner credited the testimony of Guerra and concluded that Carter was
discharged for insubordination, there appears no basis for inferring that
earlier examination of Guerra under Rule 43(b) would have affected the
conclusion reached as to Carter. Accordingly, we conclude that this ruling
was not prejudicial in this case Cf. Film Inspection Service, Inc., 144
NLRB 1040, 1041, at fn. 1
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Trial Examiner. This case was tried
in Newport, Vermont, on July 9, 10, and 22, 1968,'
pursuant to a charge, filed on April 12, and amended on
May 21, by the Upstate New York and Vermont District
Council, International Ladies' Garment Workers' Union,
AFL-CIO, herein called the Union, and pursuant to a
complaint issued on June 13, and amended at trial. The
issues presented are whether Acacio Guerra, Individually,
and Columbia Casuals, Inc„ herein referred to jointly as
Respondent, violated Section 8(a)(1) of the National
Labor Relations Act, as amended, by interrogating
employees and threatening them with plant closure if they
selected the Union to represent them, by promulgating
and enforcing a broad no-solicitation rule, and by
harassing employees and assigning them onerous duties,
and Section 8(a)(3) and (1) by discharging three
employees.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
General Counsel and the Respondent, I make the
following:,
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Respondent is engaged in the manufacture, sale and
distribution of dresses and related products from its
principal office and place of business at 32 Central Street,
Newport, Vermont. During the calendar year 1967,
Respondent in the course and conduct of its business
shipped directly to points located outside the State of
Vermont products valued in excess of $50,000. Guerra is
the principal owner, officer and director of Respondent.
Upon these admitted facts, I find that Guerra and
Respondent are, and have been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. On the basis
of the evidence adduced at the trial, I find that the Union
is a labor organization within the meaning of Section 2(5)
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Interrogation
The Union's campaign to organize the employees of
Respondent began on or about March 12. On that day,
'Unless otherwise indicated, all dates refer to the year 1968.
iRespondent's Motion to Dismiss made at the close of the trial, on
which I reserved ruling, is disposed of in accordance with the findings and
conclusions herein
174 NLRB No. 13
COLUMBIA CASUALS, INC.
Union Representative Peter Grassadonia visited the home
of Celesta Britch to solicit her membership and support.
According to Britch, a day or two later, Guerra
approached her at her machine and asked her if she had
heard that the Union was trying to organize his shop.
Britch replied that she had, that the Union organizer had
approached her. Guerra asked her if she had signed a card
and when she replied that she had, he asked her if she
could withdraw it. Britch replied that she'd rather not.
Guerra asked her if she knew whether other employees
had signed cards and Britch replied she did not. (At the
time of this conversation, Britch was an employee of
Respondent; however, in early March, she had been asked
to manage Guerra Garments, another of Guerra's
operations which was to be located in the same building as
Respondent's operation. She had assumed the position of
manager by March 22.)
On or about March 18, Guerra asked employee
Katherine Santaw if she had signed a union card and she
replied that she had. Either that same day or a few days
thereafter, as Santaw was leaving the shop, Guerra called
her back in and asked her if she would consider
withdrawing her card and Santaw refused. Santaw
testified that she also overheard Guerra interrogate
employee Litchfield.
On March 22, Guerra remarked to Dalmita Carter, "I
suppose you are one of the ones who signed a Union
card," and Carter replied, "Yes, and I am damn glad of
it."
Guerra's testimony as to these conversations was as
follows:
Q. Now, tell me, did you ever question them as to
why the[y] want the Union or anything about the
Union, or did you ever look to restrain them or
interfere with their rights as workers?
A. No I didn't interfere with their rights as,
workers ....
Such testimony is wholly insufficient to be accepted as
a denial of the testimony of Santaw and Carter. Inasmuch
as I find that Santaw and Carter testified credibly, I
further find that their interrogation, occurring in the
context of other unfair labor practices found herein, was
violative of Section 8(a)(1) of the Act.
As to his conversation with Britch, Guerra testified that
it was she who telephoned to inform him of Grassadonia's
visit to her home, and to advise him that as she was going
to be a manager, she had no use for the Union and that if
Grassadonia bothered her again, she would get in touch
with the police.
I do not credit Guerra. Throughout his testimony, I
was not impressed by his demeanor on the witness stand.
He was evasive, vague, wholly indifferent to details, and
frequently his answers were not responsive. Moreover, it is
illogical to me that Britch would have reported to Guerra
as he testified and that she would have expressed
opposition to the Union when it is undisputed that she
thereafter arranged a meeting between Guerra and Union
representative Berger. Although Britch is alleged to have
stated she would contact the police if she was bothered by
the Union, there is no evidence that she did. The fact of
the matter is that Guerra contacted the police.
Finally, I was impressed by Britch's demeanor. She
appeared to me to be frank and completely candid in
answering questions. As manager of Guerra's new
65
operation, Britch would have had no interest in fabricating
testimony adverse to Respondent. Accordingly, I find that
Guerra interrogated Britch on March 13 or 14 and
Respondent thereby violated Section 8(a)(1) of the Act.
The testimony of Santaw and Britch also establishes
that Guerra unlawfully solicited them to withdraw their
authorization cards. Although the complaint did not allege
unlawful solicitation, the issue of what Guerra said to
Santaw and Britch was fully litigated and I find that
Respondent engaged in unlawful solicitation in violation
of Section 8(a)(1) of the Act.
B. The Alleged Threats of Plant Closure
It is undisputed that on three occasions Guerra
assembled all the employees in the plant and spoke to
them about the Union. Guerra did not testify as to the
dates of his speeches, nor did he testify as to what he said
at each of them. Instead, he undertook to condense his
speeches as follows:
Q. Did you ever tell them that if they organized the
Union that you would close down the shop?
A. No. I had all the girls come together on three
occasions and I told them that they have a right to join
the Union or they have a right not to join the Union
and nobody could threaten them to join the Union or
not to join the Union; and I also told them that since I
was supplied by a non-union jobber, if they became
union, it would be a problem because I didn't know -
I don't have a union jobber that was supplying me
work, you know, of the equivalent that I have right
now - 6, 8's, and 10's there.
The foregoing was followed by what appeared to me to
be Guerra's explanation of his reasons for acting as he
did, rather than testimony as to what he actually told his
employees.
Employees Loiselle, Santaw, Carter, and Lawson
testified to the contents of one or more of the speeches.
Employee Carter was present at the first speech only and
employee Lawson was present at the first and third
speeches. From their testimony, it appears that the
speeches were given on March 22, and April 5, and 10.
The employees were not in complete agreement as to
what was said by Guerra in these speeches. Thus, Santaw
testified that on April 5, Guerra spoke about a meeting he
had with Union representative Berger and that on April
10, he told the employees to stop talking about the Union.
According to Loiselle, it was just the reverse. Employee
Lawson also testified about the speech containing the
reference to Berger, and since she was not at the plant
when Guerra spoke on April 5 (she had left the plant with
Carter), her testimony confirms Loiselle's testimony that
the reference to Berger occurred in the speech of April 10.
The fact that Lawson did not testify about Guerra's
statement to stop talking about the Union confirms
Loiselle's testimony that the statement was made on April
5, since that is the speech Lawson missed. Accordingly,
although the dates on which specific statements were
made are not particularly significant (as noted above,
Guerra did not even undertake to testify as to any specific
speech) I find that Loiselle's and Lawson's testimony is
the more accurate and that Santaw was mistaken. The
following presentation of the speeches therefore conforms
generally to their testimony.
On March 22, after first referring to remarks which
had been made by his lawyer in another court proceeding,
Guerra advised the employees that he had heard of the
Union's organizing activities. He indicated that if the
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union could help him out he would be willing to go into
the Union. He pointed out, however, that he could not
afford higher wages or paid vacations. He told the
employees he needed them, and they the work, but that if
it came to a point where he couldn't do any more, he
would have to close the shop Both Loiselle and Lawson
testified credibly that Guerra stated, "if the Union comes
in, I will have to close the shop."
On April 5, Guerra gave a brief speech in which he told
employees to stop talking about the Union, that it was
slowing up production, and to concentrate on the work.
On April 10, Guerra told the employees that he had
met with Union Representative Berger who had offered
him a line of cheaper dresses which Guerra had refused to
accept. He told the employees that he had asked the
Union to guarantee his payroll eleven months of the year
and would go Union if it helped him out, that he had too
much invested in the job to close. Additionally, Guerra
referred to the pressure on him and being pushed, and
stated that if the Union put too much pressure on him he
would have to close the shop.
I find as alleged in the complaint that in his speeches to
employees, Guerra threatened to close the plant if they
selected the Union to represent them and that Respondent
thereby violated Section 8(a)(1) of the Act.
Guerra's references to his non-union jobber and to his
meeting with Union Representative Berger and his request
for an eleven month guarantee are similar to statements of
the respondent in River Togs, Inc., which the Board held
violative of Section 8(a)(1) of the Act.' Unless there is
evidence to support it, Guerra's statement to employees
that he had a nonunion jobber who would stop sending
him work if his shop became a union shop, thereby
forcing the plant to close, cannot be characterized as
simply a prediction of the actions of third parties. There is
certainly no evidence in this record to justify such a
statement, and so long as Respondent was willing to sew
garments for its jobber at a mutually agreeable price, I
fail to see where the mere selection of a union by the
employees called for the results described by Guerra to his
employees.4
In any event, I find that Guerra did more than refer to
his nonunion jobber. Rather, I find that he enlarged on
that theme and stated that if the Union came in, he would
close the plant. In this connection, I have weighed the
possibility that in testifying that Guerra stated if the
Union came in, he would close the plant, employees were
substituting their subjective interpretation of his remarks
about his nonunion jobber. In finding this not to be the
case, I have noted Lawson's explicit testimony on
cross-examination that Guerra said both- that he would
have to 'close the doors because the Union came in and
that he would have to close the doors because his
non-union jobber would not give him any more work.
Moreover, the consistency in the testimony of Santaw,
Loiselle and Lawson that Guerra stated if the Union
pushed too hard or put too much pressure on him, he
would have to close the shop, persuades me that Guerra
did not restrict himself to the non-union jobber statement.
1168 NLRB No, 58, enforcement denied on this point 382 F.2d 198
(C A. 2).
'There is really a fundamental error in Guerra's understanding of the
Section 7 rights of employees , and this error governed his conduct and
statements The error is his belief that he will accept a union if it helps
him - in that sense, Guerra might be said not to be opposed to unions -
but Section 7 gives employees the right to make that decision.
C. The No-Solicitation Rule
In the latter part of March or the first part of April, a
notice was posted on the wall above the time clock which
stated:
NO SOLICITING OF ANY KIND ON THE
PREMISES
THANK YOU
SONNY BOY
p.s. That includes you Roland
The notice remained posted for approximately 2 weeks.
The record does not indicate who removed it, but it was
not Guerra.
Although admitting that something had been posted,
and although he had admitted in his answer that
Respondent had posted a notice that there was to be no
solicitation of any kind on its premises , Guerra refused to
identify the notice when it was shown to him by General
Counsel . Based on the admission in Respondent ' s answer
and the testimony of employee Lawson , I find that in the
latter part of March or the first part of April , Respondent
posted a notice prohibiting solicitation on Company
premises . Inasmuch as the rule prohibited solicitation by
employees on Company premises during their nonworking
time, it was presumptively unlawful . Walton
Manufacturing Company, 126 NLRB 697, enfd . 289 F.2d
177 (C.A. 5).
Although Respondent contends that the prohibition was
directed only against union activity during work time, the
evidence is to the contrary . Not only did the notice fail to
express such a limitation , but also in his speech on April 5
Guerra told employees to stop talking about the Union
and he did not indicate to them that his statement applied
only to work time. Moreover , employee Lawson credibly
testified , without denial by Guerra, that on April 16 she
was asked by Guerra whether or not she had been talking
to the girls on the premises, and when she replied that she
had and that it had been for the purpose of inviting them
to a social party, Guerra stated that those had not been
her intentions , that she was not to talk to the girls up
front any more, adding , "if you must talk to someone,
talk to Berger ." Guerra expressly stated that the
prohibition covered coffee breaks and that he could work
Lawson during her coffee break if he wanted to.
Accordingly , I find that the rule was intended to prohibit
solicitation on employees ' nonwork time. Even were I to
accept Respondent ' s contention that it intended the rule to
apply only to working time , I would nevertheless hold that
the promulgation of the rule was unlawful as the
promulgation of an unlawfully phrased rule has an
inhibitory effect upon employees ' exercise of their
statutory rights regardless of innocence of purpose for the
rule or the undisclosed limitations placed upon its use and
application. Pueblo Supermarkets , Inc., 156 NLRB 654.
Respondent does not contend in its brief that the rule was
necessary to maintain production , nor is there evidence to
support a finding to that effect . Since Guerra had made
references to interference with production, I specifically
asked him for examples . His only reply was that he had
heard that some people were upset. Even there he did not
testify that employees were upset because solicitors were
interfering with their work performance ; rather, he gave
as an example an inquiry by the husband of an employee
as to whether his wife had to join the Union. Such
testimony is insufficient to overcome the presumption of
invalidity applicable to a broad no-solicitation rule
Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 621.
COLUMBIA CASUALS, INC.
Accordingly, I find that by the promulgation of the rule,
Guerra's statement to employees in the speech of April 5
or 10,. and his statement to employee Lawson on April 16,
Respondent violated Section 8 (a)(1) of the Act.
D. The Alleged Discriminatory Discharge of Gladys
Lawson and Alvina Loiselle on March 22
Gladys Lawson started working for Respondent in
August, 1965, as a sewing machine operator and was
considered by Guerra to be one of his best operators
although not as productive as he would have liked. On
March 20, Lawson signed a union authorization card
which had been given to her by Loiselle the day before at
the shop. That same night, she met with Union
Representative Grassadoma at her home and thereafter
she became a member of the organizing committee.
On March 22, at about 12.45 p.m., Guerra called
Lawson from her machine to the front of the shop and
told her "Mrs. Lawson, I am discharging you." Lawson
asked "Right now?" Guerra replied "Yes, right now."
Lawson remarked "Well then, I can draw my
compensation" and Guerra said "I would rather pay your
compensation than to have you in the shop." He told her
that he hoped she would be happy with employment
elsewhere, and gave her two pay checks, plus a white slip
indicating her separation was for lack of available work.
On April 1, Lawson was recalled to work and was
working for Respondent at the time of the hearing.
Loiselle has been employed by Respondent over 2 years
as a stitcher. On March 19, she signed a union card at her
home where she had been visited by Union
Respresentative Grassadonia. Thereafter, she became a
member of the organizing committee and she solicited
other employees to sign authorization cards.
About 5:45 p.m. on March 22, Loiselle received a call
from Guerra who stated that he had watched her work
that day and that she had not done enough work. He then
told her he did not want to see her in the shop again.
Guerra also told Loiselle to advise her sister-in-law, Mrs.
Corneau, not to come in on Monday.
Celesta Britch, who was then manager of Guerra's new
operation, Guerra Garments, testified that after work one
Friday afternoon Guerra came to her in the basement
where the new operation was located and told her he had
discharged three girls - Gladys Lawson, Josephine
Corneau, and Alvina Loiselle. He said that he had given
them white slips of paper for lack of work, but that he
had to get rid of them because of the disturbances they
were causing in the shop with their union activities; i.e.,
getting the girls to sign cards.
The following day, Guerra telephoned Britch and told
her to contact the Unemployment Office and to request
that the three girls named above be sent to Guerra
Garments, to keep them 2 or 3 days, and find some
reason to get rid of them.
On Monday, March 25, Britch told Guerra she had not
called the Unemployment Office and was not going to
discharge the girls, and that she felt it was his duty to
recall them. Guerra said "All right."
On Tuesday, March 26, Loiselle went to the plant and
asked Guerra for her unemployment slip and her check.
Guerra asked her what slip she was talking about and
when she told him her unemployment slip he told her that
she had not been fired. When Loiselle asked about the
phone conversation Guerra said "Oh no. This is just
because I was short of collars and said the work will be
coming in and I will call you back in."
67
On March 28, Guerra called Loiselle to come back to
work, stating, "I called Unemployment and asked them
for somebody to come into work, and they told me to call
you back."
Guerra denied that he had discharged Lawson and
Loiselle on March 22 and testified that he just laid them
off for lack of work. I do not credit his testimony and
find that he discharged them.
Guerra did not deny the statements attributed to him
by Loiselle and Lawson. In Lawson's case, she testified
credibly that Guerra said he was discharging her, and the
fact that he gave her two pay checks is evidence of a
discharge action. See Liberty Coach Company, Inc, 128
NLRB 160, 163. When Carter was discharged, she
received two pay checks, and Guerra testified that he
understood that when he discharged an employee he was
required to pay them.
In Loiselle's case, while Guerra did not use the word
discharge, the only reasonable construction of his
statements to her when he called was that he was
discharging her. Furthermore, Guerra's statement to
Loiselle on March 28 that he had called Unemployment
and asked them for somebody to come into work, and
that they had told him to call Loiselle back is indicative of
a discharge.
The fact that Lawson and Loiselle were recalled to
work and were only temporarily unemployed, and the lack
of work notation on their unemployment slips are factors
which I deem insufficient to overcome the evidence of
Guerra's own statements and actions
Although I find that Lawson and Loiselle were
discharged on March 22, and not laid off, it does not
necessarily follow that the discharges were motivated by
their union activities. However, the fact that they were
discharged is a factor to be considered in weighing
Respondent's motive: employees are not usually
discharged because of a temporary lack of work.
I reject Respondent's assertion that Lawson and
Loiselle's unemployment was attributable to a lack of
work. Not only was no evidence submitted in support of
the assertion, but also, there is evidence that Respondent
did not conform to its layoff practice when there is no
work available.
Forelady Keement,5 testifying on behalf of Respondent,
stated it was not customary to lay off people in the middle
of the day.' Yet this was done in Lawson's case. The
employees testified it was not customary to lay off only
one of a group of employees engaged on the same work;
e.g., if one dart girl was laid off, all dart girls were laid
off. Forelady Keement's testimony substantiates them,
and the layoff of Loiselle, McNeil and Willis on May 6
exemplifies the practice. Yet, there is no showing that
other employees doing the same work as Loiselle and
Lawson (who did different work) were also laid off on
March 22. (Keement's reply to a question by counsel for
Respondent suggests that McNeil and Willis were laid off
with Loiselle on March 22. A reading of Keement's entire
testimony and the entire record indicates that the correct
date of that layoff was May 6.)
Since it was not Respondent's practice to select
individual employees for layoff when there was no work
available, I consider Guerra's testimony that Loiselle was
'The complaint alleges, and Respondent denies, that Keement is a
supervisor within the meaning of the Act. I find that General Counsel
failed to establish that Keement is a supervisor
'There is evidence of a mid-day layoff on May 10, but that included the
entire shop
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not a good worker irrelevant. Loiselle had been employed
over 2 years and there is no evidence that she had been
selected for layoff on prior occasions because of any
alleged deficiencies in her work performance. Nor can I
accept Guerra's explanation that he selected Lawson for
layoff because she had complained about her wages. It
appears to me that if her complaint had any bearing on
her selection, it was because Guerra identified it in his
own mind with her union activities.
At the time Guerra claims he was only laying off
Loiselle and Lawson because of a lack of work, there was
an advertisement in the Newport News, placed by Guerra
himself, for experienced sewing machine operators for
employment by Guerra Garments. There is no allegation
that either Guerra or Guerra Garments discriminated
against Loiselle and Lawson by not offering them
employment, but in analyzing Guerra's conduct and
determining his motives his failure to offer them such
employment is a factor entitled to some weight.
The timing of the discharges is another factor to be
considered. Lawson and Loiselle had signed cards 2 and 3
days, respectively, before they were discharged. The day
of the discharges Guerra had told the employees of his
awareness of the Union's organizational campaign and
that he would close the shop if the Union came in.
Respondent contends that it had no knowledge that
Lawson and Loiselle had signed cards. Whether or not
Respondent knew they had signed cards, at the very least
the evidence in the record supports a finding that
Respondent knew that they were Union supporters and
were engaged in activities on the Union's behalf. Both
Lawson and Loiselle testified to their union activities and
they were members of the organizing committee. Guerra
had interrogated Britch, Santaw and Litchfield, and,
according to his own testimony, Britch had told him about
Lawson. In one of his speeches, he had remarked that he
knew of 35 girls who had not signed cards.
Finally, there is the testimony of Celesta Britch that
Guerra told her he had discharged Lawson and Loiselle
because of their union activities.' Guerra's only testimony
on this point was the following.
Q. Did you ever say to Mrs. Britch that you were
going to let some operators go because of their union
activities?
A. I think they are Mrs Corneau and Mrs. Loiselle
and Mrs. Lawson there. I just laid those people
off....
It is evident that Guerra's answer was not responsive to
his counsel's question, and that Britch's testimony stands
undenied.
In summary, considering the fact that the discharges
occurred almost at the outset of the organizing campaign,
on the same day of a speech to the employees
demonstrating Respondent's animus against the Union,
the absence of evidence of a lack of work, and Britch's
credited testimony as to the reasons for the discharges, I
find that Respondent discharged Loiselle and Lawson on
March 22 because of their union activities and thereby
'Although the phrase used was ".. because of their disturbances they
were causing in the shop in the Union activities ," Respondent is not
contending that Lawson and Loiselle were discharged for engaging in
unprotected activity . Guerra stated that Lawson discussed the Union on
Company time, but disclaimed any reliance on such conduct as a reason
for discharge. Guerra's remark to Britch also embraced Josephine Corneau
who is not alleged as a discriminatee The record indicates, however, that
Corneau went to work on Monday, March 25, despite having been notified
she was discharged by Loiselle pursuant to instructions from Guerra, and
that she thereafter worked for Guerra Garments
violated Section 8(a)(3) and (1) of the Act.
E The Alleged Discriminatory Discharge of Alvina
Loiselle on May 10
As indicated earlier, Loiselle was recalled to work by
Guerra on March 28. On Monday, May 6, she, McNeil
and Willis were told by Forelady Keement not to come to
work the following day because of a lack of work, but to
call her before returning. On Tuesday afternoon, Loiselle
went to the shop where she learned from employees that
no one was working on Wednesday, but that everyone was
going back on Thursday. (Keement places the foregoing
events one day later than Loiselle. From my observation
of Keement at the hearing, while she appeared to be a
truthful witness, she was inattentive to the questions and
careless in answering. In view of the discrepancies between
her testimony on direct and on my examination, I have
accepted the description of events given by Loiselle.)
Loiselle worked without incident Thursday and Friday
until noon, when Keement told everyone there was no
work that afternoon. While Loiselle was waiting to leave
she heard Guerra remark to Keement,' "I told you - I
told you to tell her to stay home." Keement replied, "Yes,
but you told me that everybody was coming back to work
Thursday." Guerra then said to Loiselle, "You are not
good to me anyway, you are not a stitcher; and when I
tell you to stay home, stay home." Loiselle remarked that
was not the reason he was firing her and Guerra stated
again, "You are no good and you go home and stay
there." Guerra told her to tell Unemployment she was
fired.
On Monday afternoon, Loiselle went to get her white
slip and her check, and when she asked Keement for
them, Keement said she was not fired and that Guerra
wanted her to return to work the following morning,
which she did.
Guerra denied that he fired Loiselle on May 10 or that
he even laid her off. According to him, he merely told her
that McNeil and Willis had called in after their layoff on
May 6 and reminded her that she had not and that she
was not to take advantage of his forelady. His explanation
for Loiselle's absence the following Monday was that she
was voluntarily absent without notice.
Keement was not specifically examined about the
conversation between Loiselle and Guerra, although she
was present, and the extent of her testimony on this point
was a statement that Guerra did not fire Loiselle, nor tell
her to go home for lack of work.
I credit Loiselle. Respondent admitted in its answer
that Loiselle had been laid off, and it is undisputed that
Loiselle did not report to work on Monday. The record
establishes that Loiselle certainly believed she had been
fired and I cannot believe she fabricated or imagined the
whole incident with Guerra. She had evidently told her
sister-in-law Corneau that she had been fired, because
Guerra testified Corneau asked Keement why Loiselle had
been fired. Keement also testified that Loiselle thought
she had been fired and Keement told her, "No, he told me
to have you go to work." If Loiselle had neither been
fired nor laid off, there was no need for such an
instruction.
Whether or not Guerra's remarks to Loiselle on May
10 constituted a discharge or layoff is immaterial. In
either event, she lost one day of employment. If it was a
layoff, as pleaded in the answer, there was no evidence
that there was a lack of work or of the reason for singling
out Loiselle contrary to the layoff practice described
COLUMBIA CASUALS, INC.
earlier.
In the final analysis, Respondent's conduct vis-a-vis
Loiselle on May 10 must be evaluated in the light of its
earlier conduct. I have already found that Guerra fired
Loiselle on March 22 and disclaimed having done so. I
have found that his motive on that occasion was her union
activities. Loiselle had continued those activities after her
recall to work and she had been named as discriminatee in
the charge filed on April 12. In the light of this
background, and the total absence of any evidence to
support a finding that there was a lack of work, I find
that Loiselle's discharge or layoff was motivated by
Loiselle's union activities and that Respondent thereby
violated Section 8(a)(3) and (1) of the Act.
F. The Alleged Harassment and Discriminatory
Discharge of Dalmita Carter
Dalmita Carter had been employed by Respondent
since about April 1966. She received a union authorization
card from employee Lawson in the plant on March 19
which she signed and returned on March 20. On March
22, after working hours, while waiting for her husband to
pick her up, Carter made a casual remark to Guerra
about politics and Guerra said that he did not have any
time for politics that he had enough trouble in the factory
as it was. As he walked away from Carter, he said, "I
suppose you are one of the ones who signed a union
card." Carter replied that she was and that she was damn
glad of it. Guerra then said, "The Union won't get in any
more." Carter was active in soliciting other employees to
sign cards and she was one of five employees on the
organizing committee.
On April 3, at the front entrance to the plant, while
sitting in a car with an unidentified woman and employees
Loiselle and Lawson, Carter solicited employee McNeil to
sign a card. In order for McNeil to sign, Carter had to
get out of the car, and McNeil sat where Carter had been
sitting and signed a card on the dashboard Guerra was
across the street during this incident in a position to
observe what occurred. He denied ever having seen a
union card or having seen anyone sign one. I do not credit
him. The card signing, as described by Carter, occurred in
such a way that Guerra could not have helped knowing
what was happening. I am convinced, not only from this
incident, but from all the evidence in the record, that
Guerra knew of Carter's union activities.
According to Carter, after she had clocked out on April
4, Guerra hollered at her and told her she was laid off.
Carter told him that he couldn't lay her off and to lay her
off on his time, not her time, not as she was clocked out
and was going home. Outside the plant, Carter met
Grassadonia and told him what had just happened, and he
advised her to go in to work. While she was talking to
him, Forelady Keement came up to her and told her that
she had a message to deliver from Guerra to the effect
that she was laid off until Monday. Carter told Keement
she had no authority to lay her off as she was one of the
hired help like Carter. Keement replied that she was just
referring a message from Guerra and she left.
On Friday, April 5, Carter reported to work at 7 a.m.
as usual. At 8 a.m., Guerra came to her machine and told
her she was fired and to get out of the plant that a check
and unemployment slip were at the time clock. Carter
gathered her things and walked to the front of the factory
where she looked for her timecard to punch out. Guerra
told her he had punched her out and to get out before he
called the police. Carter asked him for a reason for the
69
discharge and Guerra replied that he did not have to give
a reason. He pointed to the unemployment slip and stated
that the reason was on there, which was not true. Guerra
told Carter he was going to call the police and walked to
the telephone to call. Carter asked him if he needed a
dime and said she had done nothing wrong and all she
wanted was a reason for being laid off since there was
plenty of work. While she was standing there, employee
Lawson came over and inquired as to what was happening
and was told by Carter that Guerra had fired her. Lawson
stated that she felt sick to her stomach and thought she
would go home. She advised Carter to pick up her check
and unemployment slip and to leave. Carter picked up two
checks and left with Lawson.
According to Carter, after she signed a card, and until
her discharge on April 5, she was "treated like a dog -
worse than a dog." When asked to describe what was
done to her, she gave as examples that the man -
presumably Guerra - would come past her and throw
dresses, which he had not done before. He would pull a
dress from her sewing machine before she was through
sewing it. On one occasion, one Barber (who appears to
be Guerra's brother-in-law but who is not alleged to be a
supervisor or agent of Respondent) pulled a dress and
caused Carter to run a needle through her finger. Barber
would stand continuously in front of her, beside her, or in
back of her until she was just a nervous wreck. Guerra
would tell Carter to stop talking when she was not. One
of two sewing machines Carter worked on did not work
properly and Guerra did not repair it. For the first time,
she had to do another employee's repair work.
The foregoing, insofar as it describes the confrontations
between Carter and Guerra on April 4 and 5, is essentially
undisputed. The harassment is denied. In this instance,
Respondent does not dispute that it discharged Carter,
contending, however, that the reason was Carter's
insubordination in coming to work on Friday, April 5,
despite explicit instructions that she was not to come in
until Monday.
General Counsel contends that the alleged
insubordination was a pretext and that Respondent's true
motive was Carter's union activities. It is not clear
whether General Counsel contends that Carter was not
insubordinate or that, conceding insubordination, it was
not the moving cause for her discharge. I find that Carter
was clearly insubordinate. Her retort on the afternoon of
April 4 when Guerra told her she was laid off until
Monday was not called for by any of the circumstances
described in the record. Such unwonted belligerence
cannot be denominated as other than insubordination, and
Carter's reporting to work on April 5 and working for one
hour contrary to explicit notice that she was laid off was
merely an extension of the insubordination begun on the
preceding afternoon.
General Counsel does not contend, nor does the record
support a finding, either that Carter was provoked into
her outburst or that Respondent discriminated against her
by laying her off on April 4.
I have considered the evidence in support of the
allegation of harassment to determine the possibility that
Carter had been provoked. However, testimony that
Carter was treated like a dog has no evidentiary value,
and the examples of abusive treatment in the record are
too general as to time and frequency to support a finding
of harassment. Significant in this regard is the reliance on
the alleged conduct of Barber who is not shown to be
either a supervisor or agent of Respondent, nor to have
been executing instructions of Guerra. Moreover, Carter's
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
feelings of harassment may have been more fancied than
real. For example, while both Carter and Britch named
Loiselle as a victim of the dress pulling, Loiselle herself
complained of no such treatment in her testimony. Britch
admitted that conduct of the type described as harassment
was directed to different girls, at different times, if it was
a girl Guerra did not like and that this had happened even
before any union activities.
Analysis of the record also indicates that there is
insufficient evidence to support a finding that Guerra was
discriminating against Carter by laying her off. According
to Guerra and Keement, on April 4 there were not enough
"closings", the type of work performed by Carter. True,
there were 4 closers, but Guerra testified Carter was not
skilled at some closings , and General Counsel offered no
evidence to the contrary. As described earlier, the layoff
practice was not to select one employee of a group where
there was a lack of work, but to lay off all those doing
similar work , and relative skills were generally not
considered. It appears, however, that differences among
the closers did exist and were relevant in certain
situations. At least, there is no contention by General
Counsel that they were not relevant in the situation here
in question. Finally, although Carter testified there was
plenty of work for her to do, I note that she completed
the work in her bin on April 5 in 1 hour, lending credence
to Guerra's testimony that he laid her off on April 4
because he did not want her to travel 10 to 12 miles on
Friday to come to work for 2 hours. The issue, in the
Carter case, then, is whether or not her insubordination
was used by Respondent as a pretext to discharge her for
her union activities. To support a finding to that effect,
General Counsel adverts to the fact that Respondent has
no rules in regard to discharges. The simple answer is that
a rule that insubordination is ground for discharge is not
necessary. He compares Carter's conduct to that of
Corneau who had been told on March 22 by Loiselle,
pursuant to Guerra' s instructions , that she was not to
report to work the following Monday and who,
nevertheless, reported. Corneau did not testify, and for all
that appears in the record, before the start of work on the
Monday in question, she could have spoken to Guerra and
been told to report to work. I note that Corneau went to
work for Guerra Garments, rather than for Respondent.
On this record, a finding that Corneau was insubordinate
and treated differently from Carter is unwarranted.
General Counsel also compares Loiselle's conduct in
returning to work on May 9 without calling her forelady
as an instance of insubordination which was not punished
by discharge. The difference between her case and Carter's
is too apparent to require elaboration.
General Counsel submits that the inconsistencies in
Guerra's testimony demonstrate that his true motive in
discharging Carter was her union activities. I have
indicated throughout this decision the several respects in
which I could not credit the testimony of Guerra,
including finding the discriminatory discharge of Loiselle
and Lawson. However, there are different considerations
in the Carter case Thus, while the evidence did not
support Guerra's assertion that there was a lack of work
for Loiselle and Lawson, the evidence does support his
assertion that Carter was insubordinate. Contrary to the
contention of General Counsel, Guerra steadfastly
asserted that his reason for discharging Carter was her
insubordination. Although Guerra referred to Carter's
alleged poor work and bad attitude, I do not find that he
relied thereon as grounds for discharge. While the answer
to the complaint does plead that the discharge was for
inefficiency and for failure to obey orders, I do not deem
the pleading, without more, sufficient to warrant a finding
that Respondent has taken inconsistent positions which
warrant an inference that Carter was discharged for
discriminatory reasons.
The most troublesome evidence tending to support the
General Counsel's contention is the testimony of Britch
that he told her on March 22 not only that he had
discharged three girls because of their union activities, but
also that he had one more girl that he was going to let go
and that was Dalmita Carter, because she was causing a
commotion with her union activities For reasons given
earlier, I have credited Britch and I credit her testimony
that Guerra made such a statement to her on March 22.
However, there is no evidence that Guerra undertook to
implement this statement by any actions directed against
Carter Rather, granted the finding that Guerra was not
unlawfully motivated in notifying her she was laid off, it
was Carter who set into motion the incident which
triggered her discharge Participation in union activities
does not insulate an employee from discharge for cause.
On balance , I do not believe that there is a preponderence
of evidence to support a finding that Respondent's true
motive in discharging Carter was her union activities and
not her insubordination.
G. The Alleged Harassment of Employees
At the trial General Counsel moved to amend the
complaint to allege that , since in or about the months of
March and April 1968, the Respondent had harassed and
assigned onerous duties to employees because they joined
or gave assistance and support to the Union. In support of
this allegation the General Counsel adduced evidence
relating to the harassment of employees Lawson, and
Carter. The alleged harassment of Carter was described
above and I have found the evidence insufficient to
support a finding of a violation of the Act.
In the case of Lawson , she testified that on or about
April 4 she was given a new assignment consisting in
stitching through the middle part of a zipper for a period
of 6 hours. This was described as arduous work which she
was required to do for a period of 6 hours. She was not
required to perform this operation at any time thereafter.
Guerra testified that on occasion the zippers supplied
by the manufacturer are too long and it then becomes
necessary to do the operation described by Lawson.
Lawson admitted that she normally worked on zippers
and that on the day in question the zippers extended
beyond the notch in the dress.' Moreover, she has not been
required to perform this operation at any time since.
I find that the General Counsel has failed to establish
by a preponderance of evidence that the zipper assignment
constituted the assignment of a more arduous duty in
violation of Section 8(a)(1) of the Act
Lawson testified that on April 4, Guerra told her 2 or 3
times that she would have to put out more production,
that hei work was not satisfactory. On April 16, she was
threatened with discharge unless she increased her
production. On April 17, she was told that she was
expected to produce 17 collar facings per hour on what
she testified were complicated dresses. On April 18 she
was told that she was expected to sew 17 zippers per hour.
All of these directions were described as new to Lawson's
experience and incapable of being complied with. She did
not produce as directed , nor was she discharged for failing
to do so. Moreover, Lawson admitted that she had not
been bothered since April 18 and she is currently doing
COLUMBI k CASUALS, INC.
the same kind of work she had been doing before.
The treatment accorded Lawson differs from that
described by Carter. Lawson's description of the harassing
conduct was explicit, was not denied, and related to her
productivity when she was admittedly one of Guerra's best
operators. In the absence of evidence that her productivity
had suddenly decreased, and in view of the finding that
she had been discriminatorily discharged on March 22,
and that much of the harassment occurred after she was
named as a discriminatee in the charge filed April 12, I
find that the directions to increase production and threat
of discharge constituted harassment of Lawson in
violation of Section 8(a)(1) of the Act
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occurring
in connection with its interstate operations, have a close,
intimate, and substantial relation to trade, traffic and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
IV. THE REMEDY
Having found that Respondent engaged in unfair labor
practices as set forth above, I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Respondent having discharged Alvina Loiselle and
Gladys Lawson because of their union activities, I shall
recommend that Respondent make them whole for any
loss of pay they may have suffered by reason of such
discrimination by payment to them of a sum of money
equal to that which they normally would have received as
wages; in the case of Loiselle, from March 22 the date of
her discharge to March 29 the date on which she was
reinstated, and for the loss of wages she suffered on May
13; in the case of Gladys Lawson, for the period from
March 22 to April 1 the date on which she was reinstated.
Backpay is to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289, with interest at a rate of 6
percent per annum to be computed in the manner set forth
in Isis Plumbing & Heating Co., 138 NLRB 716.
Inasmuch as Loiselle and Lawson have been reinstated, I
shall not recommend an order of reinstatement.
In view of the nature of the unfair labor practices
committed, and the substantial evidence of Respondent's
disregard for the Section 7 rights of its employees, in
order to prevent the commission of other unfair labor
practices, I shall recommend that Respondent be placed
under a broad order to cease and desist from in any
manner infringing upon the rights of employees
guaranteed in Section 7 of the Act.
Such order shall be directed not only against Columbia
Casuals, Inc., but also against Acacio Guerra,
individually.'
Upon the foregoing findings of fact, and upon the
entire record in this case, I make the following:
'Mount Hope Finishing Company, 106 NLRB 480, 499.
CONCLUSIONS OF LAW
71
1. Upstate New York and Vermont District Council,
International Ladies' Garment Workers' Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
2. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
3. By interrogating its employees under circumstances
described herein and soliciting employees to withdraw
from the Union, by threatening plant closure if employees
selected the Union to represent them by harassing
employees, and by promulgating and enforcing a rule
prohibiting employees from soliciting union membership
on Company premises during nonworking time,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act
4. By discharging Alvina Loiselle and Gladys Lawson
because of their union activities, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, I hereby issue the
following:
RECOMMENDED ORDER
Columbia Casuals Inc., Acacio Guerra, Individually, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf
of Upstate New York and Vermont District Council,
International Ladies' Garment Workers' Union,
AFL-CIO, or in any other labor organization of its
employees, by discharging, harassing, or otherwise
discriminating in regard to the hire or tenure of
employment or any terms or conditions of employment of
its employees.
(b) Interrogating its employees concerning their union
activities or desires in a manner constituting interference,
restraint or coercion in violation of Section 8(a)(1) of the
Act, or soliciting employees to withdraw from a union.
(c) Threatening employees with plant closure if they
select Upstate New York and Vermont District Council,
International Ladies' Garment Workers' Union,
AFL-CIO, to represent them.
(d) Promulgating, maintaining, and enforcing a rule
prohibiting employees from soliciting union membership
on Company premises on nonworking time.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to
self-organization, to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection as
guaranteed by Section 7 of the Act, or to refrain from any
or all such activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Make whole Alvina Loiselle and Gladys Lawson for
any loss of pay they may have suffered by reason of the
discrimination against them by payment to each of them a
sum of money equal to the amount they normally would
have earned as wages from the date of their discharge to
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the date of their reinstatement in the manner set forth in
the section entitled "The Remedy."
(b) Preserve and make available to the Board and its
agents, upon request, for examination and copying, all
payroll records, social ' security payment records,
timecards, personnel records and reports, and all other
records relevant or necessary to the determination of the
amounts of backpay due under the terms of this
recommended order.
(c) Post at its premises in Newport, Vermont, copies of
the attached notice marked "Appendix."' Copies of said
notice, to be furnished by the Regional Director for
Region 1,. shall, after being signed by Respondent's
representative, be posted by Respondent immediately upon
receipt thereof and maintained by it for 60 consecutive
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 covered by
any other material.
(d) Notify the said Regional Director, in writing, within
20 days from the date of this Decision, what steps the
Respondent has taken to comply herewith.'"
As to the allegations of the complaint found not to
have constituted violations of the Act, it is recommended
that they be dismissed.
'In the event that this Recommended Order be adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the-Board's Order be enforced by a United States Court of
Appeals, the words "a Decree of the United States Court of Appeals
Enforcing an Order" shall be substituted for the words "a Decision and
Order."
"In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 1 0 days from the date of this Order, what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
this Company has violated the National Labor Relations
Act. In order to remedy this conduct , we have been
required to post this Notice and to take the following
steps:
WE WILL NOT threaten to close the plant if you select
the Upstate New York and Vermont District Council,
International Ladies ' Garment Workers' Union,
AFL-CIO, to represent you.
WE WILL NOT interrogate our employees in a manner
which constitutes interference with, restraint, or
coercion in violation of Section 8(a)(1) of the Act.
WE WILL NOT ask employees to withdraw their union
authorization cards.
WE WILL NOT promulgate , maintain or enforce a rule
which prohibits you from soliciting union membership
on company premises during nonworking time.
WE WILL NOT discourage membership in, or
activities on behalf of Upstate New York and Vermont
District Council, International Ladies' Garment
Workers' Union , AFL-CIO , or any other labor
organization , by discharging or harassing employees, or
otherwise discriminating in regard to their hire or
tenure of employment or any term or condition of
employment.
WE WILL make whole for any loss of pay they may
have suffered by reason of the discrimination against
them, Alvina Loiselle and Gladys Lawson, who have
been reinstated.
All our employees are free to become and remain
members of Upstate New York and Vermont District
Council , International Ladies' Garment Workers' Union,
AFL-CIO , or any other labor organization.
Dated By
ACACIO GUERRA,
INDIVIDUALLY: COLUMBIA
CASUALS, INC.
(Employer)
(Representative ) (Title)
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
After a hearing duly held, it has been determined that
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 8A24,
Federal Office Building, 819 Taylor Street, Fort Worth,
Texas 76102, Telephone 334-2921.