Bmd Sportswear Corp. And Suzan Knitwear Corp., As Alter Egos And As A Single Employer

National Labor Relations Board - Board Decisions

Mar 4, 1987

283 N.L.R.B. 142 (N.L.R.B. 1987)

142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
BMD Sportswear Corp . and Suzan Knitwear Corp.,
as alter egos and as a single employer and Knit-
goods Workers Union, Local 155 , International
Ladies Garment Workers Union , AFL-CIO and
Marcia Garcia and Mercedes Paz. Cases 29-
CA-11824-1, 29-CA-11824-2, 29-CA-11929,
29-CA-12213, 29-RC-6390, 29-CA-12146-1,
and 29-CA-12146-2
DECISION AND ORDER
4 March 1987,
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 21 -August 1986 Administrative Law -Judge
Steven Davis issued the attached decision. The Re-
spondents filed exceptions and supporting briefs,
the General Counsel filed cross-exceptions and a
supporting brief, and the Respondents filed briefs in
answer to the General Counsel's cross-exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions2 as modified, and to adopt the recom-
i In adopting the judge's finding that Respondents BMD and Suzan
are alter egos, we emphasize, as did the judge, that such a finding is not
based solely on the familial relationship between Bora Dordevic and his
brother Jovo. Milosevic Rather, we note the Respondents' failure, in
light of the indicia of alter ego status addressed by the judge, to offer any
evidence that would support a finding that an arm's-length relationship
existed between the two companies. Moreover, the credited testimony es-
tablishes that Dordevic told Suzan employee Lopez that, in the event of
unionization at BMD, he would close BMD to expand operation at
Suzan, which statement further supports the alter ego finding
We grant Respondent Suzan's motion to amend its answer to conform
to "a defense raised before the judge " In this motion, Suzan asserts that
Sec. 10(b) bars its addition as a party after the hearing was in progress
and after evidence was taken. It is well settled, however, that the inter-
ests of alter egos are identical, and therefore Suzan was present at the
entire hearing and defended itself through the representation of BMD.
See, e.g., Sturdevant Roofing Co., 238 NLRB 186, 187 (1978), enfd. 636
F.2d 271 (10th Cir. 1980) (where two companies are found to be alter
egos, service on one company is sufficient to initiate proceedings within
limitations of Sec. 10(b)) Thus Sec. 10(b) has been complied with insofar
as Respondent Suzan is found to be liable for the violations alleged
against BMD With respect to the amended complaint allegations relating
only to Respondent Suzan, the charge was filed 7 January 1986 and the
alleged violations occurred in late July or early August 1985. These al-
leged violations were thus clearly within the 6-month limitations period,
and we therefore reject Respondent Suzan's 10(b) defense.
In part VI, par 13, of his decision, the judge referred to employee
Paredes rather than employee Carmen Lopez. We correct this inadvert-
ent error.
2 Respondent BMD excepts to the judge's conclusion that it violated
Sec 8(a)(l) by allowing an employee-made sign stating, "Please vote for
BMD and save our job" to remain posted for several days prior to the 21
June 1985 election In view of the ambiguity of the statement and the
tenuous nature of Respondent BMD's connection with the alleged threat,
we find merit in the Respondent's exception and shall modify the Order
and notice accordingly
mended Order as modified3 and set forth in full
below.
The General Counsel excepts to the judge's fail-
ure to find that the layoffs of employees Bertha
Meija and Amalia Paredes violated Section 8(a)(3)
and (1) of the Act. The judge found that the Gen-
eral Counsel did not establish a prima facie case of
discrimination with respect to these individuals be-
cause there was no evidence that the Respondent
BMD had knowledge of their union activities. He
therefore recommended that the relevant complaint
allegations be dismissed.
In her exceptions, the General Counsel argues
that, inter alia, the evidence of Respondent BMD's
animus toward the Union, the timing of the layoffs,
the employees' union activities, and its other un-
lawful conduct are a sufficient basis from which to
infer that the Respondent knew of Meija and Par-
edes' union activities. For the following, reasons,
we find merit in the General Counsel's exceptions.
On 19 April 1985 employees Paz and Garcia
contacted the Union. During the next several days,
both women took an active role in speaking to
their fellow employees regarding the Union, and
on 22 April they assisted the Union's agents in dis-
tributing cards outside the plant. As found by the
judge, Paz and Garcia, in addition to other em-
ployees, were the subjects of unlawful interroga-
tions regarding their union sympathies during this
period. Paz and Garcia were unlawfully laid off on
23 and 25 April, respectively.
On five separate occasions between the advent of
the union campaign and 23 April, when Meija and
Paz were laid off, Meija was observed by Supervi-
sor Milkenvoic having lunch with Paz. Meija
signed an authorization card on 22 April. Similarly,
Paredes was observed by Milkenvoic having lunch
with Paz on 23 April, the same day she signed a
card away from the plant. Subsequent to her lunch
with Paz, Paredes was twice approached by em-
ployee Otero, who asked her if she had signed a
card, and then told her that Dordevic would fire
or lay off employees who signed cards.4 Paredes
was laid off on 3 May.
It has long been held that where there is no
direct evidence, knowledge may be proven by cir-
S We shall modify the Order and notice to delete the judge's finding
that the Respondents violated Sec 8(a)(1) by telling employees they were
silly and stupid in connection with the Union
The General Counsel requests a visitatorial clause authorizing the
Board, for compliance purposes, to obtain discovery from the Respond-
ents under the Federal Rules of Civil Procedure subject to supervision of
the United States court of appeals enforcing this Order Under the cir-
cumstances of this case, we find it unnecessary to include such a clause
Nathan's Furniture Store, 278 NLRB 268 (1986)
4 Although Otero often assisted Dordevic as an interpreter for the
Spanish-speaking employees, he is not alleged to be an agent of the Re-
spondents in connection with these statements.
283 NLRB No. 4
BMD SPORTSWEAR CORP.
cumstantial evidence from which a reasonable in-
ference may be drawn. NLRB v. Wal-Mart Stores,
488 F.2d 114, 117 (8th Cir. 1973). See generally
NLRB P. Link-Belt Co., 311 U.S. 584, 602 (1941).
Such circumstances may include proof of knowl-
edge of general union activity, the employer's dem-
onstrated animus, the timing of the discharge, and
the pretextual reasons for the discharge asserted by
the employer. General Iron Corp., 218 NLRB 770,
778 (1975), enfd. 538 F.2d 312 (2d Cir. 1976). See
also Hunter Douglas, Inc. v. NLRB, 804 F.2d 808
(3d Cir. 1986), enfg. 277 NLRB 1179 (1985). In ad-
dition, the discharge of an employee who is not
known to have engaged in union activity but who
has a close relationship with a known union adher-
ent may give rise to an inference of discrimination.
See Permanent Label Corp., 248 NLRB 118, 136
(1980), enfd. 657 F.2d 512 (3d Cir. 1981). Thus a
discharge motivated by an employer's belief or sus-
picion that 'an employee engaged in union activity
violates the Act. Id.
Here, the judge found, and we agree, that Re-
spondent BMD harbored anti-union animus, as
demonstrated by the numerous 8(a)(1) violations
found, as well as by the discriminatory layoffs of
five employees in, addition to Meija and Paredes. In
addition, based on these violations, we find that
Respondent BMD had general knowledge ' of the
employees' union activity. We further agree with
the judge that the reason asserted by Respondent
BMD for the layoffs of all seven discriminatees,
lack of work, was wholly unsupported by the evi-
dence and therefore pretexual. With respect to
timing, as noted above, Meija was laid off the same
day as union supporter Paz, and Paredes was laid
off the following week.5 Moreover, the layoffs of
all seven alleged discriminatees, closely followed
the start of the union campaign. We find-that these
circumstances, in addition to Milkenvoic's observa-
tion of Meija and Paredes at lunch with one or
both of the primary union' activists, who were
themselves unlawfully laid off, constitute a suffi-
cient basis to infer that the Respondent knew, or at
least suspected, that Meija and Paredes supported
the Union. We therefore conclude, particularly in
light of the absence of any legitimate basis for the
layoffs,6 that the General Counsel has, established a
5 Contrary to the judge, we find that the fact that Paredes' layoff fol-
lowed the other layoffs by several days does not significantly weaken the
General counsel 's prima facie case, nor does it render Respondent
BMD's ddfcnse any more plausible In this regard we note that despite its
claim of a general business slowdown necessitating the layoffs , Respond-
ent BMD hired five new employees on the date of Paredes' layoff.
6 See Wright Line, 251 NLRB 1083, 1088 fn 12 (1980), enfd. 662 F.2d
899 (1st Cir, 1981), cert. denied 455 US 989 (1982), approved in NLRB
v. Transportation Management' Corp, 462 U S 395 (1983).
143
prima .facie -case of.,discrimination with respect to
Meija and Paredes . Inasmuch as the Respondents
have not met their burden of demonstrating that
the layoffs would have occurred even in the ab-
sence of the protected conduct of Meija and Par-
edes, we find that the layoffs violated Section
8(a)(3) and (1) of the Act.
ORDER
The Respondents, BMD Sportswear - Corp. and
its alter ego Suzan Knitwear Corp., Queens, New
York, their officers , agents, successors, and assigns,
shall jointly and severally
-1. Cease and desist from
(a) Laying off, discharging , or otherwise dis-
criminating against any employee for supporting
Knitgoods Workers Union, Local 155, Internation-
al Ladies Garment Workers Union, AFL-CIO or
any other union.
(b) Isolating the work stations of employees
causing them to be subject to - adverse conditions;
assigning employees to inefficient machines causing
a reduction in the amount of earnings they receive;
issuing warning letters to employees because of
their membership in and activities on behalf of the
Union.
(c) Asking employees if they called the Union;
whether they signed cards or any papers for the
Union; why employees were - supporting the
Union's advocates; who signed for the Union;
whether they liked the Union; why' one of the
Union's advocates did not get a job in a union shop
if she' was in, the Union; if they knew of the Union;
whether they spoke to the Union's agents; and if
they, were in the Union -and who spoke to them
about the Union.
(d) Accusing employees of forcing workers to
sign cards; threatening 'that it would lay off em-
ployees who' signed cards and close the shop,
change its name, and replace the workers; threaten-
ing employees that if they signed cards for the
Union or', palled it they would be fired; telling
workers that if they did not sign a card they would
continue to work; threatening employees that the
Respondents would close the shop if the Union
came in or won the .election; telling employees that
if the union problem continued Respondent BMD
contemplated closing and expanding operations at
Suzan.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) Offer Gloria Chunga, Carmen Lopez, Bertha
Meija, Amalia 'Paredes, Edilma Nunez, Maria
Garcia, and Mercedes Paz immediate and full rein-
statement to their - former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make
them whole for any loss of earnings and other ben-
efits suffered as a result of the discrimination
against them, -in the manner set forth in the remedy
section of the decision.
(b) Remove from their files any reference to the
unlawful actions taken against Chunga, Lopez,
Meija, Paredes, Nunez, Garcia, and Paz and notify
the employees in writing that this has been done
and that- the actions will not be used against them
in any way.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at the New York facilities of BMD
Sportswear Corp., and Suzan Knitwear Corp.,
copies of the attached notice marked "Appendix."7
Copies of the notice, on forms provided by the, Re-
gional Director for Region 29, after being signed
by the Respondents' authorized representative,
shall be posted by the Respondents immediately
upon receipt and maintained for 60 consecutive
days in conspicuous, places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondents
to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondents have taken to comply.
IT IS FURTHER ORDERED that the complaint is
dismissed insofar as it alleges violations not specifi-
cally found.
IT IS FURTHER ORDERED that the election held
on 21 June 1985 among certain employees at Re-
spondent BMD Sportswear Corp., is set aside and
the Regional Director is directed to conduct a
second election at such time as he deems that cir-
cumstances permit the free choice of a bargaining
representative.
7 If 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT lay off, discharge, or otherwise
discriminate against any employee for supporting
Knitgoods Workers Union, Local 155, Internation-
al Ladies Garment Workers Union, AFL-CIO or
any other union.
WE WILL NOT isolate the work stations of em-
ployees causing them to be subject to adverse con-
ditions; assign employees to inefficient machines
causing a reduction in the amount of earnings they
receive; issue warning letters to employees because
of their membership in and activities on behalf of
the Union.
WE WILL NOT ask employees if they called the
Union; whether they signed cards or any papers
for the Union; why employees were supporting the
Union's advocates; who signed for the Union;
whether they liked the Union; why one of the
Union's advocates did not get a job in a union shop
if she was in the Union; if they knew of the Union;
whether they 'spoke to the Union's agents; if they
were in the Union; who spoke to them about the
Union.
WE WILL NOT accuse employees of forcing
workers to sign cards; threaten that we would lay
off employees who signed cards and close the
shop, change our name, and replace the workers;
threaten employees that if they signed cards for the
Union or called it they would be fired; tell workers
that if they did not sign a card they would contin-
ue to work; threaten employees that we would
close the shop if the Union came in or won the
election; tell employees that if the union problem
continued BMD contemplated closing and expand-
ing operations at Suzan.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce-you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Gloria Chunga, Carmen Lopez,
Bertha Meija, Amalia Paredes, Edilma Nunez,
Maria Garcia, and Mercedes Paz immediate and
full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially ' equivalent po-
sitions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and
BMD SPORTSWEAR CORP.
other benefits suffered as a result of the discrimina-
tion against them with interest.
WE WILL remove from our files any reference to
the unlawful actions taken against Chunga, Lopez,
Meija, Paredes, Nunez, Garcia, and Paz and notify
them in writing that this has been done and that
the actions will not be used against them in any
way.
BMD SPORTSWEAR CORP. AND
SUZAN KNITWEAR CORP., AS ALTER
EGOS AND AS A SINGLE EMPLOYER
Alison Fairbanks and Kevin Kitchen, Esqs., for the Gener-
al Counsel.
Henry Woicik, Esq., of New York, New York, for Re-
spondent BMD Sportswear Corp.
Stanley Yaker, Esq., of New York, New York, for Re-
spondent Suzan Knitwear Corp.
Stanley Goodman, Esq. (Chaikin & Chaikin)., of New
York, New York, for the Union.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. On 1 May
19851 Knitgoods Workers Union, Local 155, Internation-
al Ladies Garment Workers Union, AFL-CIO (Union)
filed charges against BMD Sportswear Corp. (BMD) in
Cases 29-CA-11824-1 and 29-CA-11824-2 and on 17
June filed a first amended charge in Case 29-CA-11824-
1. The Regional Director issued an order consolidating
cases, consolidated amended complaint, and notice of
hearing on 28 June. On 24 June, the Union filed a charge
against BMD in Case 29-CA-11929 and the Regional
Director issued a complaint and notice of hearing on 24
September.
Based on those charges and on objections filed by the
Union in Case 29-RC-6390, the Regional Director issued
an order consolidating cases, consolidated amended com-
plaint, and notice of hearing on 24 October.
On 21 October the'Regional Director issued a Report
on Objections, order, consolidating cases, and notice of
hearing, which consolidated for hearing Cases 29-CA-
11824-1-2 and 29-CA-11929 and Case 29-RC-6390,
which involves allegedly objectionable conduct2 in that
the Employer threatened its employees with plant clo-
sure if the Union won the election.3
On 15 November, Mercedes Paz filed a charge in Case
29-CA-12146- 1 against BMD, and Maria Garcia filed a
charge in Case 29-CA-12146-2 against BMD, on which
i All dates herein are in 1985
2 Other objections were withdrawn by the Union before the hearing
and are not before me
2 The petition was filed by the Union on 9 May A Stipulation for Cer-
tification Upon Consent Election was executed by the parties and ap-
proved by the Regional Director on 29 May, and an election was held on
21 June in a unit consisting of all production , maintenance, shipping, and
receiving employees employed by BMD at its 1051 Wycoff Avenue,
Ridgewood, New York location, excluding all other employees, guards
and supervisors as defined in the Act. The election resulted in It votes
for the Union, 46 votes against the Union; and 8 challenged ballots.
145
the Acting Regional Director issued an order consolidat-
ing cases , consolidated complaint, and notice of hearing
against BMD on 13 January 1986.
On 7 January 1986 a charge was filed by the Union
against BMD and Suzan Knitwear Corp. (Suzan) in Case
29-CA-12213, on which the Acting Regional Director
issued a complaint and notice of hearing; against Re-
spondents on 21 January 1986.
Finally, in order to clarify and consolidate the allega-
tions of the various complaints and amendments made at
the hearing, a written motion to amend complaints, made
by the General Counsel and dated 19 March 1986, was
granted by me at the hearing. The motion included all
the allegations of the complaints and amendments made
at the hearing, and alleges as follows:
(a) Respondent Suzan was established by Respondent
BMD as a subordinate instrument to and a disguised con-
tinuation of a part of the business of Respondent BMD.
(b) Respondent BMD and Respondent Suzan have
been affiliated businesses with common officers, owner-
ship, directors, and operators; the directors and operators
formulate and administer a common labor policy for the
aforenamed companies, affecting the employees of the
companies.
(c) Respondent BMD and Respondent Suzan are alter
egos and a single employer within the meaning of the
Act.
(d) Respondents interrogated employees concerning
their union membership, activities, and sympathies.
(e) Respondents warned and directed their employees
to refrain from becoming or remaining members of the
Union.
(f) Respondents threatened their employees with dis-
charge, and threatened that they would close a plant.
(g) Respondents laid off seven employees and failed to
recall them because of their union activities.
(h) Respondent BMD assigned employees Maria
Garcia and Mercedes Paz to more arduous and less
agreeable job tasks; reduced their rate of pay by assign-
ing them to lower paying job tasks; isolated their work
stations from other employees; issued a warning letter to
Paz; and caused their termination; all because of their
union activities and because they gave testimony under
the Act. After the close of the hearing, Respondents
filed leave to amend their answers, which I granted.4
The case was heard before me in New York City on
12 days between 9 December 1985 and 16 April 1986.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by General Counsel and Respondent
BMD, 5 I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent BMD, a New York corporation, having
its office and place of business at 1051 Wyckoff Avenue,
Queens, New York, is engaged in the manufacture, sale,'
4 The answers, as amended, have been included in the exhibit file as R.
Exh 21.
5 Respondent Suzan did not file a brief, but relies on BMD's brief
146 DECISIONS OF THE NATIONAL LABOR- RELATIONS BOARD
and distribution of sweaters and related product's. During
the past "year, 'BMD, in the course and conduct of its
business operations , purchased and caused to be trans-
ported and delivered to its plant thread, yarn, and fabric
valued in excess of $50,000, which were delivered to its
Queens, New York plant directly from locations outside
New York State.
Respondent Suzan, a New York corporation, having
its office and place of business at 20-36 Harmon Street,
Queens, New York, has been engaged in the manufac-
ture, sale, and distribution of sweaters and related prod-
ucts.
Based on projection of its operations since about 24
April 1985, at which time Respondent Suzan commenced
its operations, Respondent Suzan, in the course and con-
duct of its business operations will annually sell and ship
from its plant products, goods, and materials valued in
excess of $50,000 directly to points outside the State of
New York.
Respondents admit and I find that BMD and Suzan are
employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that the Union
is a labor organization within the meaning of Section
2(5) of the Act.
II. SUPERVISORY STATUS OF MELJUS MILKENVOIC
A. Facts
The General Counsel alleges that Meljus Milkenvoic is
a supervisor of Respondent BMD. Respondents deny;
this . She did not testify.
BMD's president, Bora Dordevic, testified that Mil-
kenvoic, the floorlady, is in charge of the factory in his
absence, to ensure that the workers do their work prop-
erly. He relies on her and she gives work to and controls
the work of the merrow machine operators. However he
also noted • that his wife, the secretary, and John (a
porter), also give work to the merrow operators. Milken-
voic began work, as a Singer machine operator, when
the factory opened in 1978 and she continues to work on
the Singer although she also distributes work and "over-
sees" the work of the merrow operators. As the floor-
lady, she' also examines the work done. Dordevic further
stated that he tells her what work to distribute and she
does so without using independent judgment. He stated
that she does not hire, fire, or recommend such action.
Milkenvoic is salaried, earning $400 per week and an ad-
ditional $100 per week as a "percentage" because she
opens and closes the factory in his absence6 and is reli-
able. The additional sum pays part of her gasoline ex-
pense . No one else received such a percentage. The
other persons who receive salaries are Dordevic and his
wife who receive $500 per week each; cutter Antonio
Otero-$510 and secretary Radmila Rajkov-$480.
Employees testified that Milkenvoic -gave them work,
instructed them on how to perform it,7 and inspected the
work to see that it was done correctly by walking
around the shop and looking at the workers as they
worked." If the work was not done properly, she re-
turned it to the worker for corrections, which one
worker regarded as discipline . Work was also assigned to
others for corrections. Paz conceded that Dordevic told
Milkenvoic what work to give out, and she distributed
work to whoever was finished with their job. The work
was evenly distributed among those senior people.
Employees also asked Milkenvoic if they had a ques-
tion about the work they were doing. Milkenvoic also
signs the production tickets attached to the work of the
piece-rate employees. That ticket lists the rate paid for
the job. Employees conceded that Milkenvoic, in addi-
tion to her floorlady responsibilities, works on ,the Singer
machine, although - no percentage of her day on such
tasks was established at the hearing.
Employees told Milkenvoic if they had to leave early
or would arrive late, and she always permitted them to
do so without checking with Dordevic. It was argued by
Respondents, however, that the fewer hours a piece-
worker works results in lesser pay so the Company es-
sentially did not care when the workers left or arrived.9
Employee Lopez stated that Milkenvoic frequently
yelled at her and told her to go home, but she did not
leave because she knew that Dordevic would not fire
her. In fact, Lopez told Milkenvoic that if she did not
stop bothering her she would hit her. Dordevic then ap-
proached and told them to calm down. Lopez stated that
she knew that Dordevic did not support Milkenvoic's ac-
tions.
Milkenvoic also asked employees if they could work
overtime or on Saturdays.
B. Analysis
Milkenvoic, the floorlady at BMD, is in charge of the
factory in the absence of its owner; opens and closes it;
assigns work to the employees; instructs them on its per-
formance; and checks the work and returns it for correc-
tion to the employee who performed the work, or to
others for correction. She also answers questions about
the performance of the work and signs the tickets that
authorize payment to the piece-rate workers. She also
asks employees if they can work overtime or on Satur-
days and accepts explanations why the workers arrived
late or must leave early. In addition, Milkenvoic re-
ceived a percentage, amounting to $100 per week, for,
among other things,; these additional responsibilities. In
addition, she was salaried unlike the operators, who re-
ceived piece-rate wages or others, who were hourly
paid.
The evidence also shows that her demand that an em-
ployee leave was ignored and not supported by Dorde-
vic, and that part of, her day consisted of work per-
formed on a machine.
8 Employee Caban stated that occasionally Mrs. Dordevic checks her
work I
s Milkenvoic and the Dordevics are the only persons having keys to S This is in contrast to the reaction of Respondent BMD when piece-
the factory worker Paz took photos for 2 minutes. She was accused of not working
7 Occasionally Dordevic explains how to perform the work and disrupting the operation
BMD SPORTSWEAR CORP. 147
Dordevic admitted that he relies on Milkenvoic, who
assigns and controls the work of the operators , to ensure
that the workers perform their jobs properly.
Notwithstanding her lack of authority to hire, dis-
charge,10 suspend , recall , or promote employees or to
make effective recommendations for such action, I be-
lieve that, the evidence is clear that Milkenvoic responsi-
bly assigned work to and directed employees and was a
supervisor as defined in the Act. Dadco Fashions, 243
NLRB 1193, 1194 (1979); Ridgely Mfg. Co., 198 NLRB
860, 861 (1972).
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Organizing Drive
Respondents are garment contractors . They receive
raw materials from manufacturers and orders from manu-
facturers or jobbers. They cut and sew sweaters, first
making a sample and then, on receiving approval, sew
and ship the orders received. In the period from March
to November 1985, BMD employed 61 to 76 employees,
most of whom were merrow machine operators who
sewed the garments together and were paid on a piece-
rate basis . BMD also employed cutters and other ma-
chine operators.
Suzan was a smaller company. Its records showed that
26 workers received payment in the first week of its op-
erations in May.
According to employees Garcia and Paz, beginning at
least in early 1985, the piecework rates were lowered at
BMD by its president and owner, Bora Dordevic. The
workers' complaint was that the rates per dozen were re-
duced for the same type of work that had previously
been paid at a higher rate. The rates were reduced three
to five times since January 1985 , according to them, and
whenever they complained, Dordevic refused to increase
the rates to their former level.
About 16 April, the piece rate was again lowered and
about seven employees spoke to Dordevic about that. He
explained that the company for which they sewed the
goods recently began business and it could not afford to
pay more and as a result, he could not pay the employ-
ees more. The employees protested to no avail and Dor-
devic invited them to leave if they did not like the piece
rate.
The following day, 17 April, a group of employees
spoke about the need for a union, and Paz called Local
155. On 19 April, Paz and Garcia went to the Union
after work. That morning , Dordevic asked Garcia if she
and Paz called the Union. Garcia replied, "No, not yet."
Dordevic, told her to call the Union because he is not
afraid of anyone. Also that day, Milkenvoic, the floor-
lady, asked Garcia if she signed any papers for the
Union. t 1 Garcia asked, "What papers?" and Milkenvoic
10 However , employees Nunez and Paredes testified that Milkenvoic
told them that they were laid off, and they should leave the premises,
which they did.
11 Dordevic's question to Garcia was corroborated by Paz, who earlier
had asked as Yugoslavian worker to sign a card. She refused and told Md-
kenvoic that Paz asked her, and Milkenvoic told Dordevic, who asked
Garcia the above question
replied that she knew she wanted the Union. Garcia an-
swered that everyone wanted benefits, and "who does
not want the Union." Milkenvoic also asked why she
was supporting Paz, and added that Dordevic was very
rich , and could open a factory in another location.
Garcia replied that Dordevic would lose because if the
workers struck he would not be able to receive work.
Employee Bertha Mejia stated that she spoke about five
times with employees in the factory during lunch about
the Union and benefits. The employees, who spoke: Span-
ish, were seated about 25 feet from Milkenvoic. There is
no evidence that Milkenvoic understood any part of their
conversation or overheard them.
On 21 April, Union Agent Ramonita Guzman visited
Paz at her home. Paz signed a card for the Union and
was given blank cards to distribute to her coworkers.
On 22 April, Guzman and fellow union agent Will Al-
drich stood outside the factory, speaking with and dis-
tributing cards to employees. Garcia and Paz assisted.
Guzman was present from 6:30 to 8 a.m. and from 2 to
4:30 or 5 p.m.
That day, Milkenvoic asked Garcia if she signed
papers that Paz had for the Union. Garcia denied doing
so, and asked her "what papers?" Milkenvoic replied that
she knew that Garcia wanted the Union, and asked who
else signed. Garcia did not reply. Garcia signed a union
card that day and was given additional cards by Paz.
Garcia and Paz stated that beginning on 22 April they
distributed union cards to employees before work, at
lunch, in the bathroom, on the street, and at the homes
of the workers.12 They stated that they stood with
Guzman and Aldrich while they solicited employees on
the street in front of the factory. In the morning of 22
April, Paz spoke briefly with five or six employees
before work. When Milkenvoic brought ]Paz work that
day, she told Paz that she was silly and stupid, and ac-
cused her of forcing employees to sign cards. She added
that Dordevic has a lot of money and does not care if he
closed the factory for 6 months, reopened it under an-
other name or owner, and replaced the workers. Milken-
voic further said that Dordevic did not like the Union
and everyone who signed a card would be laid off. Paz
replied that she did not care, that she was a good worker
who would either get another job Or take vacation. Mil-
kenvoic then asked her if she called the Union. Paz an-
swered that she did because the reduction of the piece
rate was unfair. Thereafter, during each of the five or six
occasions that Milkenvoic brought work to Paz that day,
she told Paz that Dordevic would fire heir; anyone who
signed a card would be dismissed; and Dordevic would
change the name of the Company. Each time Paz replied
that she did not care.
That afternoon, after work, Paz distributed union
cards with Garcia and, Union Agent Guzman in front of
the shop.
The solicitation continued on the street the next day,
23 April, with Guzman, Aldrich, Garcia, and Paz speak-
ing to employees and helping them complete cards.
12 This is corroborated by the testimony of Carmen Lopez, Bertha
Media, Edilma Nunez, and Amalia Paredes who stated that they were
given cards by Garcia or Paz
148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Garcia stated that, while engaged in this activity, she
saw Milkenvoic watching them. Paz stood with the
others for 25 minutes in front of the factory that morn-
ing.- During the day, during each of the five or six times
Milkenvoic brought work to Paz, she told her that if she
signed cards for the Union or called the Union she
would be fired. She added that Dordevic had a lot of
money and would close the factory, change its name,
and replace the workers because he does not like the
Union.
Also that day, Milkenvoic told Garcia that employee
Dalia told her that Paz forced her to sign union papers.
Garcia replied that Dalia was lying because she did not
sign any papers. Later that day, Milkenvoic asked Gloria
Chunga if she liked the Union and if she signed a card
for it. Chunga replied, "Yes." 13 The following day
Chunga was laid off.
As Paz was leaving work on 23 April, Dordevic told
her that a customer had canceled an order and that she
was no longer needed because there was no work. Paz
asked that he lay off the new employees first. Dordevic
answered that he would do as he wished. Paz said she
would go to the Labor Department because she knew
why she was being fired.
Delores Rivera, Paz' sister, stated that that week, Mil-
kenvoic asked her why Paz did not get a job in a union
shop if,she is in the Union. Milkenvoic also told Rivera
that Dordevic's friend had the same problem with a
union and he closed his factory and moved. She added
that Dordevic would close the shop if the- Union comes
in.
When Bertha- Mejia left work at the end of the day,
Dordevic told her that he had no more work, and she
should leave.
The following day, 24 April, Paz returned to the shop
with Union Agents Aldrich and Guzman, who intro-
duced themselves to Secretary Redmila Rajkov. Accord-
ing to Paz, Aldrich, and Guzman, they asked Dordevic
to reinstate Paz and he refused, saying that if the Union
came in he would close.
Dordevic denied saying that. He testified that Paz de-
manded that he admit her, saying that "I am your god."
Dordevic replied- that there is only one God, and "you're
not it." Paz said that she would close the factory. Dorde-
vic told her that she did not open the shop and she could
not close it.
I credit the testimony of Paz, Aldrich, and Guzman.
Their versions were consistent, mutually corroborative,
and believable because similar threats to close had been
made by Dordevic directly and through him by Milken-
voic.
Later that day, Milkenvoic asked Garcia whether she
signed papers for the Union. Garcia denied doing so.
Milkenvoic then said that if the Union comes in she
would be happy because she would get 3 months' vaca-
tion.
Also that day, Edilma Nunez, while working, waved
through an open door at Paz and the union agents who
were standing outside the shop.14 Five minutes later
is This conversation was corroborated by Garcia
14 This was corroborated by Union Agent Aldrich.
Mira Dordevic, the wife of the owner and an admitted
officer and agent of Respondent, came to her work sta-
tion with Antonio Otero, the cutter, who translated.
Mira asked if she knew of the Union, whether she spoke
to the union agents, and whether she was in the Union
or signed a union card. Mira said that she knew what the
Union was doing, but she wanted to help Nunez so that
she would not "get involved," and could continue to
work and not lose her job. Nunez answered that the
Union spoke to her -at her house, and gave him a paper
to sign, but she (Nunez) did not know if the paper was a
union card. Nunez stated that Otero said that he did not
tell Mira that she signed a card. In fact, Nunez had
signed a card the night before at home, at the request of
Guzman and Paz. Otero then told Nunez that anyone
who was involved with the Union would be fired. Maria
Dordevic did not testify.
At the end of the workday Bora Dordevic asked
Nunez, through Otero, whether she knew about the
Union and who spoke to her concerning it. He said that
he was telling her this because he wanted to help her,
adding that he wanted to know if she signed a card. He
also stated that if she did not sign , she could continue to
work. Nunez replied that Paz told her about the Union
at lunch the day before, and that she signed a card at
home at Paz' request, who told her that a majority of the
workers signed cards. Dordevic answered that he knew
that they wanted to bring a Union in, but that he would
not permit that. He said that he would rather close the
shop before the Union- entered, and that if the Union
comes in he would close.'The following day Nunez was
laid off by Milkenvoic who told her that work was slow.
Carmen Lopez signed a card that day outside the fac-
tory after work in the presence of Paz and the union
agent while the gate was open. On 21 or 22 April Lopez
had spoken to Paz about the Union at lunch.
The following day, 25 April, as Lopez was leaving,
Milkenvoic asked for her phone number and told her
that there was no more work, but that she would call
when work picked up. Lopez gave her phone number
but was never called. That day Garcia was laid off too.
Amalia Paredes was asked by Paz on 23 April at lunch
to help her get a union in the factory. Paredes agreed.
Paz told her to sign a card after work that day. Paredes
signed a card outside the shop at the end of the day. On
3 May, Milkenvoic told Paredes work was slow and she
should not come to work, but would be recalled. 's
Sometime before the election, which took place on 21
June, Milkenvoic told employee Mirian Cedeno, while
she was working, that she (Cedeno) would see what will
happen after the election, adding that if the Union won,
Dordevic would close the factory. Cedeno replied that if
the shop closed she would look for another job.
15 On 23 April after the lunch conversation, Paredes was told by
cutter Otero that she should not sign a union card because Dordevic
would dismiss employees who signed as he did not want the Union, and
would close the shop and replace the employees-or send the work to an-
other shop he controlled Paredes told Otero that she intended to sign a
card; and 2 days later told Otero that she did sign I cannot attribute this
conversation to Respondent inasmuch as Otero, a rank-and-file employee,
was not Respondent's agent as to this conversation, as will be discussed
infra.
BMD SPORTSWEAR CORP.
About 1 month before the election, Dordevic called a
meeting, of all the employees. The meeting, which was
very short, took place on the factory floor. Dordevic
spoke Yugoslavian, and his words were translated into
English by Secretary Rejkov. Then her words were
translated into Spanish by cutter Otero for the Spanish
workers, and 'into Polish for the Polish employees. All
parties agree that Dordevic announced that there would
be an ellection on 21 June, and that he did not want the
Union. However, in addition, two employees, Delores
Rivera and Dulce Sanchez, testified that Dordevic said
that if the Union won, he would close the factory. But
two other witnesses , also called by the General Counsel,
Segunda Caban and Mirian Cedeno, who also heard the
same Spanish translation, did not testify about that
threat. Moreover, the Spanish interpreter, Otero, and
Dordevic and Rajkov denied that Dordevic threatened
to close the shop if the Union won, the election, but
rather they all testified that Dordevic invited the work-
ers to vote, as they wished.
Based on the conflict in the testimony, particularly
that between' the General Counsel's Witnesses, I cannot,
find that Dordevic threatened to close the factory in that
speech.
Sometime before the election a handwritten sign was
posted in the work area of the factory. The sign was 4
feet by 4 feet and said, in English and Spanish, "Please
vote for BMD and save our job. Thank you." A box on
the sigh had the word "no" written on it in various lan-
guages. The sign, which was prepared and hung by em-
ployees, including Otero, was posted at least for several
days before the election and was in plain sight of every-
one in the shop. Employee Delores Rivera stated that
she saw Bora Dorcevic look at the sign and tell his wife
to look at it.
On 21 June, the election was held, which the Union
lost by a vote of 46 to 11.
B. The Layoffs
The complaint alleges that the following employees
were ' unlawfully laid off in April and May : Gloria
Chunga, Maria Garcia, Carmen Lopez , Bertha Mejia,
Edilma Nunez, Amalia Paredes, and Mercedes Paz.
1. Gloria Chunga
Chunga was hired on 5 October 1982 and was laid off
on 24 April 1985, at which time she worked as a merrow
machine operator.
Chunga spoke with Paz and other workers at lunch on
19 or 20 April and agreed with her that the workers
should sign cards for the Union. On 22 April, Paz gave
her the Union's address, and she went there after work
and 'signed a card in the presence of other employees.
The following day, 23 April, she answered yes when
asked by Milkenvoic whether she liked the Union and
signed a card for it. The next day, 24 April, as she was
leaving for the day, Dordevic asked her if she wanted to
receive unemployment benefits and she said she did.
Chunga testified that occasionally work is slow, but
there was always work to do and she always worked 40
hours per week.
2. Carmen Lopez
149
Lopez was hired on 27 September 1982 and was laid
off on 25 April 1985: She was a finisher who removed
errant threads from the sweaters.
About 21 or 22 April Lopez spoke to Paz at lunch
about the Union.
On 24 April she signed a card for the Union outside
the factory after work in the presence of a union agent
and Paz and another worker.
The following day, at the end of work, Milkenvoic
told her that there was no more work, asked for her
phone number, and said that if work picked up she
would be called. Lopez was not called. She stated that
when she left, there was more work to be done.
3. Bertha Mejia
Mejia worked for less than 1 month, from March to 23
April. She sewed labels into the sweaters. There were
two others employed as label sewers.
A few days before 22 April, Mejia began conversing
with her coworkers at lunch, while sitting at their ma-
chines. Five such lunchtime conversations concerned the
Union, and included Paz and Garcia and their desire for
a union because of the discharges of Spanish workers.
They spoke Spanish. Milkenvoic was seated 25 feet away
from them. On 22 April Mejia signed a union card at
home.
On 23, April, Dordevic told her that there was no
more work. Mejia testified, however, that there was suf-
ficient work to be performed, and that there was never
an occasion that she had no work to do.
4. Amalia Paredes
Paredes was employed for about I year, taking threads
off sweaters.
Paz asked her in the factory at lunch on 23 April to
sign a card after work that day and she did so 1 block
from the factory.
On 3 May, Milkenvoic told her that because work was
slow she should not come to work but should collect un-
employment benefits, and she' would be recalled when
work picks up. Paredes stated that there was work left to
be done when she was laid off.
5. Edilma Nunez
Nunez was employed for I or 2 months in 1984, then 3
or 4 weeks in April 1985, when she was laid off.
On 23 April she and others were told by Paz at lunch
that they' were bringing a union into the shop. That day
after work she signed a card at home.
The following day, 24 April, she waved to the union
agents from her workplace, and immediately Mira Dor-
devic approached her and asked her through interpreter
Otero whether she knew of or spoke to union agents,
and whether she was in the Union or signed a card for it.
Although she told Otero that she signed papers for the
Union, Otero told her that he did not tell Mira Dordevic
that she signed a card. She was warned that anyone who
was involved with the Union would be fired, and that if
she had not signed a card she should not do so and could
150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
thereby continue working. Later that day Bora Dordevic
asked her the same questions, through Otero, and this
time she answered that she'signed a card. That admission
was apparently repeated to Dordevic.16 Bora then
warned that he knew that `-`they" wanted to bring a
union in, but that he would not -permit it, and would
rather close the shop than have the Union organize it.
Bora then told her that if she did not sign a card, she
could continue to work.
The following day, 25 April, Nunez was told by Mil-
kenvoic not to come to work the next day as work was
slow.-
6. Maria Garcia
Garcia began work in August 1980 and worked until
sometime in 1981 when she left. In 1983 she worked for
3 months and then left. She returned to work in August
1984 and was employed until 25 April 1985 when she
was laid off. Her last period of employment was as a
merrow machine operator.
Dordevic admitted that Garcia and Paz complained to
him in April 1985 "one after another" regarding the
piece rate,-and requested an increase in that rate.
About 17 April she and Paz spoke about the Union
and called the,Union.
On 19 April, Dordevic asked Garcia if she called the
Union. That day, Milkenvoic asked her if she signed
papers for the Union, and Garcia told her that everyone
wanted benefits. Later that day, Garcia and Paz went to
the Union, and on 22 April Garcia signed a card. There-
after from 22 April until she was laid off, Garcia solicit-
ed other employees to sign cards, helped others fill them
out in the presence of the union agent, and was seen on
23 and 24 April by Milkenvoic doing so.
On 22 April, 1Vlilkenvoic asked Garcia if she signed for
the Union. Garcia denied doing so, and Milkenvoic re-
plied that she knew she wanted the Union, and asked
who else signed! On 23 April, Milkenvoic told her that
Paz forced another worker to sign for the Union. Garcia
replied that that worker was lying. On 24 April, Milken-
voic again asked Garcia if she signed for the Union and
Garcia denied doing so.
On 25 April, Dordevic told her that since many orders
had been canceled she could receive unemployment ben-
efits.
Garcia testified that when she was laid off, she had the
usual amounts of work to do, and that from January
1985 until her layoff she always had work to do.
7. Mercedes Paz
Paz was hired in June 1978 or 1979 and was laid off
on 23 April 1985.
Dordevic admitted that Paz complained to him very
often about the piece rates.
On 19 April, Paz spoke with her fellow workers about
the Union and, went to its offices. She signed a card on
21 April and, thereafter, she spearheaded the Union's or-
ganizing drive. Beginning on 22 April until she was laid
off the next day, she distributed cards at the factory,
16 Otero told Nunez that he did not tell Mira that she signed a card
He was not asked if he told Bora that she expected a card
before and after work and at lunch, and she visited em-
ployees at their homes. She stood outside the shop with
union agents and spoke to the workers about the Union.
Milkenvoic ,spoke to her numerous times on 22 April
about the Union, accusing her of "making" employees
sign cards, criticizing her for supporting the Union, and
threatening that those who signed cards would be laid
off and the factory closed if the Union organized it. Md-
kenvoic asked Paz if she called the Union and Paz admit-
ted doing so.
The following day, 23 April, Paz again distributed
cards before work in front of the shop with Union Agent
Guzman present. During the day, Milkenvoic again
warned her several times that if she signed a card or
called the Union she would be fired and the factory
would close. As Paz left work that day, Dordevic told
her that a customer canceled an order and that she was
laid off.
The following day, 24 April, on the demand of the
union agents to reinstate Paz, Dordevic refused and said
that he would close the shop if the Union came in.
Paz stated that when =she was laid off, she had much
work still left to do, and that in 1985, the merrow opera-
tors always had work. She conceded, however, that
when work was slow, she left at 2:30 p.m.; the normal
quitting time was 3:30 p.m.
Dordevic testified that in July 1984 Paz "made prob-
lems" by causing her family and one or two friends to
leave work for 3 days. Their complaint concerned the
low piece rates. Before leaving, Paz said she could earn
more by collecting unemployment and working under
someone else's social security number.
Dordevic testified that in February 1985 Paz com-
plained that workers should not be sent home at 1 or ,2
p.m. He told her that he was the boss, and that she could
not give orders to him. Also in that month, she threw a
sweater at a customer. When Dordevic protested, she
said that she did not care-the factory was no good.
Dordevic replied that if she did not like it she could
leave.
In March, Dordevic installed new machinery for use
on a new order. Paz asked him why he bought new
equipment if he could not raise the piece rate. Dordevic
replied that if he did not buy the new machinery, he
would lose work.
In April, according to Dordevic, business declined and
Respondent paid the same piece rate as the prior year.
Paz asked for higher rate and Dordevic explained that
for work previously done, the same rate had to be paid.
Dordevic stated that from 18 to 20 April, Paz again
complained about the piece rates and Dordevic answered
that he had no time to argue. Finally, on 23 April, Paz
again began to complain, and this time Dordevic told her
to see him after work. Later, he told her to collect un-
employment for 2 or 3 weeks. She threatened to close
the factory and then left.
C. The Return to work of Maria Garcia and Mercedes
Paz
Following their layoff by BMD in April, Garcia and
Paz returned to work at BMD on 11 November as
BMD SPORTSWEAR CORP. 151
merrow machine operators. Dordevic stated that ' he 're-
called them because work had increased.
Prior to their layoff in April they had worked on
merrow machines, located in the central area of the fac-
tory, where 29 such machines were located in four rows.
Paz had worked at the same machine for 7 years, and
Garcia had worked at her machine during her last 8-
month period of employment. During that time, their
machines adjoined each other.
However, on their return in November, they were as-
signed to adjoining merrow machines but this time out-
side the merrow area in a place where such machines
had never been before. They had the only merrow ma-
chines in that area. The new location was 8 feet away
from the closest merrow machine in the merrow ma-
chine area. Separating the new location from the merrow
machine was a 3-foot open hallway. Their new machines'
location was about 30 feet' from their former location. In
addition, the new location was 3 to 4 feet from a steam
machine where material is cut, pressed, ironed, and
steamed, and 2 to 4 feet from a large, 14-foot floor-to-
ceiling roll-up gate used to bring in material from the
street. The new work station was also situated close to
button and blind stitch machines.
Beginning on 12 November, Garcia and Paz were sub-
jected to the combined effect of steam on their backs
from the steam machine, and cold air from the roll-up
gate when it was, in an open position. They put piles of
material between themselves and the steam machine as a
barrier. Although the steam did not have a very adverse
effect on them, the cold air from the gate affected them
badly. They repeatedly, complained to Milkenvoic about
the open door. She told them that perhaps they would
be moved to a different area but they never were. Their
requests to her that the door, which was open "all the
time," be closed, were ignored. In contrast, when, other
workers complained about the cold air, the door was
shut. Garcia and Paz covered themselves with material
in order to keep warm, and this was met with laughter
by Mrs. Dordevic. '
Garcia and Paz' repeated requests that their machines
be moved were also ignored, notwithstanding that there
were four vacant merrow machines in the merrow ma-
chine area where they formerly worked.
At times employees would be assigned to work at the
blind stitch and button machines, which were closest to
Garcia and Paz. But those employees would work at
those machines sporadically, two or, three times per
week for 2 hours at most. When Garcia left, no one re-
placed her at her machine.
On 14 November, Paz took four photographs and
Garcia took two photographs of their work area. The
picture-taking took 2 minutes. Paz stated that Dordevic
approached her and asked why she' took the pictures.
She replied that she wanted proof of the location in
which she was working. Dordevic then told her that she
had no permission to take the pictures, that the shop was
a private place, and that he would call the police and
have her arrested for doing so. Later that day Dordevic
gave her a letter, provided by his attorney:
Re: Unauthorized Photographs on November 14,
1985
It has come to my attention that you took several
photographs of BMD's equipment and your co-
workers in the shop this morning. At the time these
photographs were taken, you were supposed to be
working at your machine. You did not have I3MD's
permission to take these photographs nor did you
obtain the permission of your co-workers.
Your actions caused disruption in BMD's oper-
ations and greatly upset many of your co-workers.
Future incidents of disruptive conduct will not be
tolerated and will result in further discipline up to
and including your discharge.
Please indicate your receipt of this written warn-
ing by signing in the space provided.
Paz refused to sign the letter. Dordevic warned her
that she could not interrupt work, and if she,did so two
more times she would be fired. Paz told him that he
hated her because she called the Union. Dordevic said
she should forget about the past. That letter was the first
ever given to an employee.
There was evidence that photographs had been taken
in the shop before, at such times as parties, or when a
coworker left for a trip. In fact Paz took photos before
and had not been required to obtain permission and had
not been warned about such conduct.
Dordevic conceded telling Paz that she should have
asked his permission to, take the photos and admitted
threatening that he would, call the police because she did
not have his permission. He also stated that Paz asked
him why he did not dismiss her. Dordevic replied that
he did "not need to."
Garcia and Paz stated that their machines were heavy,
inefficient, and hard to operate. Garcia immediately told
Milkenvoic of this and continued her complaints in suc-
ceeding days. Milkenvoic said,that she would call a me-
chanic, but the mechanic did not come and the machine
was not repaired. Paz' machine was repaired, but it still
did not operate well. Garcia asked Milkenvoic why her
worksite was moved, and Milkenvoic replied that boxes
of material were placed in her old position, and there
was no room for her machine . Garcia testified that
before her April layoff boxes were also situated near her
machine but she had no difficulty working.
Garcia stated that on ' 19 November, her last day of
work, the roll-up door was open. The air was not cold,
but the sun beat down on her back through the gate,
making her feel as though she were at the beach. Her re-
quest that Milkenvoic close the door was ignored. How-
ever, later that day, as the sun changed its position, it
became very 'hot for another worker who then com-
plained and the door was' immediately closed.
Paz stated that before her layoff in 'April, she pro-
duced 30 to 35 dozen sweaters per day and earned $450
to $600 per week, for a 9- or 10-hour day. In November,
however, she,produced only 17 to 25 dozen and earned
$270 to $290 per week, for an 8-hour, or less, day. Paz
attributed this to the harder work that she and Garcia
were given. She stated that in November, she was as-
152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
signed to work on material that was thick and loose,
hard to sew, and had lines that had to be matched on
each side. This work was paid at $2.50 per dozen,
whereas because of the nature of the work, it had for-
merly been paid at $3.50.
Paz testified that before her April layoff all the work-
ers shared the easy and hard work, but that in November
only she and Garcia did that complex, low-paying work.
Other operators were paid $2 .50, but according to Paz,
such work was easier and the material sewed was differ-
ent, with no matching required. She accordingly stated
that she was unable to make as much money because of
the difficulty in working with the material and the ineffi-
cient machinery; the time-consuming line matching com-
bined with the low piece rate held her, earnings down.
Garcia stated that she did not return to work because
she could not bear the working conditions-the cold, the
sun, and the steam. She felt isolated from other work-
ers.'7 She conceded that the nearest merrow operator, 8
feet away, also complained about the cold, but Garcia
was much closer (about 4 feet) to the door, and also the
other workers did not have the steam at their backs.
Paz last worked on 20 December . She stated that she
did not return thereafter because of the intense cold from
the door and the steam, because Dordevic looked at her
in an angry way, because of the poor treatment she re-
ceived, because she was given the worst work, and be-
cause the piece rate was too low. She stated that she
may have continued working but for the machine she
worked at and the type of work she was given.
Dordevic testified that the work that Garcia and Paz
received was the same as given other employees. He
added that if a particular order was small he gave the
entire lot to two or three workers, and noted that Garcia
and Paz did not work on any lots that were unique to
them.
The photos taken on 14 November, the date the door
was open all day according to Garcia, show the door
closed and Garcia and Paz smiling in apparent good spir-
its. Garcia stated that she did not complain about the
door being open that day and they testified that they did
not want to look as miserable as they felt for the pic-
tures.
IV. SUZAN KNITWEAR CORP.
A. Facts
The certificate of incorporation for Suzan was filed on
24 April 1985. Its officers, owners, directors, and stock-
holders are Jovo Milosevic and his wife Mira. Jovo is
the brother of Bora Dordevic. Jovo had been a resident
of the United States since 1968, and had owned and op-
erated a small grocery store for the 4 years preceding
the opening of Suzan . He had some experience in the
textile industry in Europe more than 20 years ago, but
his wife had worked in the sweater industry in the
United States 5 years ago.
17 On cross-examination Garcia conceded that whenever she returned
from trips out of the country she would be assigned to a different
merrow machine. However she noted that the machines were all located
in the central merrow machine area, unlike the position outside that area
to which she returned in November
In March 1985, Milosevic and Dordevic purchased a
building at 20-36 Harmon Street, a 5- to 10-minute drive
or a 20-minute walk from BMD. Dordevic "lent" Milo-
sevic $20,000 toward the purchase price of $65,000. The
building is Suzan 's location . In addition, Dordevic lent
him another $20,000, half of which was used to open
Suzan's initial bank account, and the other half was for a
later $10,000 deposit into the same account. No loan doc-
uments were executed for this transaction and the loan is
still outstanding.
Suzan began work about 3 May with five or six
merrow machines and Singer, crochet, and tacking ma-
chines, all bought from Dordevic for $16,000, which sum
Suzan paid Dordevic in October 1985.18 In addition, cer-
tain small supplies were given to Suzan by BMD.
Dordevic ordered and paid, in part, for ironwork per-
formed at Suzan's premises.19 However, Milosevic
showed the ironworker what he wanted done, and the
work was performed based on Milosevic's instructions.
BMD and Suzan use the same corporate attorney, ac-
countant, insurance agent and insurance company, bank,
and suppliers for certain materials.
Dordevic denied having any position, title, or owner-
ship interest in Suzan.
Dordevic testified that he helped his brother open
Suzan because of familial obligation and because Milose-
vie helped him when he arrived in the United States in
1974 by paying his transportation from Europe, permit-
ting him to live in his apartment , and giving him money
for furniture. In fact, Dordevic borrowed $10,000 from
his brother to go into business in 1978. He defended his
loans to Jovo also on the ground that he lent money to
other companies and to employee Paz.20
Dordevic stated that he helped Milosevic set up
Suzan, gave him advice , and recommended companies
with which he might do business. `He also recommended
that prospective employees who sought work at BMD
apply for jobs at Suzan or other companies.
The testimony of Dordevic and Milosevic was quite
contradictory concerning Suzan's securing work from
AM Knitwear.
Milosevic testified that 1 week before Suzan opened
he, alone, went to AM Knitwear and asked for work. He
further stated that he did not know that BMD worked
for AM. In contrast, Dordevic stated that he called AM
in 'late March and asked that work be given to Suzan.
Dordevic called again in mid-April and AM sent a box
of samples to Suzan, where the sample garments, were
made by the wives of the two brothers. Thereafter, AM
continued to give work to Suzan and, according to Re-
spondents , AM was Suzan's sole customer. 21
1s In fact, BMD placed the order for two new merrow machines from
Belmont Sewing Machine Co, which were delivered to Suzan BMD
paid Belmont , and Suzan repaid BMD.
19 A $527 95 balance was paid by Suzan on the day it closed its oper-
ations , 24 February 1986
20 The loan to Paz was for $2000, which was repaid
21 I credit the testimony of Dordevic as to his solicitation of AM It is
hard to believe that AM would give work to Milosevic on his request-
especially since he had no current experience in` the textile industry It
appears that the introduction of Suzan by Dordevic, who works for AM
at times, caused that company to employ Suzan
BMD SPORTSWEAR CORP. 153
Dordevic admitted that in the first month or so, of
Suzan's operations, he occasionally visited Suzan for
about 30 minutes in the morning, two to three times per
week or after work , to help , and show Milosevic how to
do the work. Thereafter Dordevic visited Suzan once
per week.
The Respondents' testimony that AM Knitwear was
Suzan's sole customer was contradicted by Suzan em-
ployee Janet Khalil who testified that Suzan worked for
two companies , including one that used the label "Ken-
neth Too." In fact she stated that 70 percent of her work
consisted of Kenneth Too sweaters . BMD also per-
formed work for Kenneth Too.
Union Representative Aldrich testified that on 10 Jan-
uary 1986, he observed boxes with what he believed
were finished goods being transported from Suzan to
BMD.
Cousins Janet Khalil and Maria Lopez, who had
stopped working for BMD in early 1985, testified that in
mid-May they together sought work at BMD . Dordevic
told them that work at BMD was slow, and that he had
many problems with the Union and the employees, but
he suggested that they work at Suzan, where work was
plentiful. Lopez told him that she did not know how to
perform tacking work, and Dordevic said he would
bring a device to make that work easier. Lopez began
work at Suzan the next day, on 15 May. Dordevic
brought the tacking piece and told the floorlady to give
her work.
Lopez worked at Suzan less than 1 month when,
before the BMD election on 21 June, Dordevic asked
her whether she liked the work. She replied that she did.
Dordevic asked her where Khalil was. Lopez said that
Khalil left and she would leave soon too.22 Dordevic
asked why, and Lopez said because of "problems of Paz
with the Union." Dordevic answered that he had prob-
lems also, and would tell Milosevic not to let Paz work
for Suzan, but Lopez and Khalil could continue to work
at Suzan. Dordevic also told them that if the union prob-
lem continued he was contemplating closing BMD and
expanding operations at Suzan.
Khalil began work at Suzan about 2 weeks after
Lopez, and was given work by the floorlady. No one at
Suzan interviewed her for the position. She worked
about 6 weeks and left because she was not paid enough.
When she complained to Milosevic's wife, Mira, about
the low pay, either Mira or Khalil called Dordevic at
BMD and Khalil told him that the workers should be
paid more than $2.75 for the complex work of matching
lines. , Dordevic told her that, he paid $2.75 at BMD and
only three lines had to be matched. Khalil left and col-
lected unemployment benefits, but in about 1 month re-
turned to' Suzan-in late July or early August- and
spoke to Dordevic's wife who told her that Dordevic
was upset that while Khalil was collecting unemploy-
21 According to Khalil 's testimony she began work at Suzan about 1
June, and left in mid -July. Thus, before the 21 June election, Lopez could
not have told Dordevic that Khalil had already left. However , I credit
Lopez as to this conversation because she testified to detail about a
matter that affected her and Khalil directly I believe that either she was
mistaken about the date of this conversation , or Khalil incorrectly set
forth her dates of employment at Suzan
ment' benefits, she was working at another company. She
warned Khalil that if she did not stop collecting she
would be reported. Khalil went to BMD where Dorde-
vic told her the same thing. She asked to return to BMD
but Dordevic told her that there was no work there, and
he had many problems because the workers- wanted to
bring a union in, and he did not want a union, and would
rather close. He then asked Khalil if she was involved
with the Union; whether she signed a card for it; and
whether she knew who signed union cards. Khalil admit-
ted signing a card , and Dordevic told her to report for
work at Suzan.
Shortly after Khalil returned to work for Suzan in late
July or early August, friends visited her at work. Milose-
vic told her that he saw her talking to Paz around the
corner and asked why those people visited her at work
and also asked whether she signed a card for the Union.
Khalil denied doing so. Milosevic then said that he knew
that she signed . Khalil then admitted having- signed and,
when asked why, she replied that she wanted to support
Paz and others and return to work. Milosevic said that
he did not want to have the same problems as his broth-
er, and he did not want her to receive visitors or phone
calls.
Lopez stated that when she began work at Suzan,
Dordevic was there every day, in the morning, for 2 or
3 hours, bringing samples and work, checking the work
done by the operators, and fixing machines. In June,
July, and August and thereafter, Khalil and Lopez saw
Dordevic at Suzan much less often-twice a week and in
some weeks not at all. They both saw Dordevic 's wife at
Suzan several times, giving work to the employees, and
Lopez saw Radmila Rajkov, BMD's secretary at Suzan,
writing on the piecework tickets. Dordevic also asked
Suzan's workers if they could work on Saturday.
Dordevic, while at Suzan, yelled at Mrs. Milosevic
that the work was not done correctly, and told her to
make sure that it was done better. When the work was
not done correctly, Dordevic would be called, and he
came to Suzan and the problem was resolved. However,
when workers complained to Dordevic about Milosevic,
nothing was done.
At times, when the workers disagreed with Mrs. Milo-
sevic as to how to do the work, she called Dordevic for
instructions. Khalil asked Mrs. Dordevic for a job for
her husband and was told to call Dordevic. Khalil called
Dordevic who told her to have him report to Suzan the
same day, which he did.
Employees of Suzan testified that they worked on
sweaters that bore a Kenneth Too label. BMD worked
for Kenneth Too, also. Dordevic stated that BMD em-
ployees do not work for Suzan during: BM[D's worktime.
Otero, the BMD cutter , was seen working at Suzan on
Saturdays.
Milosevic told the workers that they should do good
work because Dordevic and the representative of a cus-
tomer were coming to their work area.
B. Analysis
The General Counsel alleges that about 24 April
Suzan was established by BMD as a subordinate instru-
154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment to and a disguised continuation of a part of the
business of BMD and, since, that time, _ BMD and Suzan
have been affiliated businesses with common officers,
ownership, directors, and operators; the directors and
operators formulate and administer a common labor
policy for the aforenamed companies, affecting the em-
ployees of the companies, and that BMD and Suzan are,
and have been, alter egos and a single employer within
the meaning of the Act.23
The" factors for finding single employer and alter ego
status are "much the same." Mine Workers Local 1329
(Alpine Construction), 276 NLRB 415 fn. 3 (1985)".
The Board stated in Contee Sand & Gravel Co., 274
NLRB 574 (1985):
The Board finds more than one enterprise' to be a
single employer where there is common ownership
and financial control which is actual rather than po-
tential, common management, interrelation of oper-
ations, and centralized control of labor rela-
tions. . . . But it is not essential that all of these ele-
ments be present. . . . As to whether an enterprise
is the alter ego of another, the Board looks to a
greater number of factors such as whether the en-
terprises' have, substantially identical ownership,
management, business purpose, operation, equip-
ment, customers, and supervision of employ-
ees.... There is also an additional factor which
the Fifth Circuit describes in Carpenters Local 1846
v. Pratt-Farnsworth, 690 F.2d 489, 508 (5th Cir.
1982), in the following words:
23 Respondents object to the inclusion of Suzan as a respondent after 4
days of hearing had taken place. Their argument is essentially that Suzan
was denied due process inasmuch as Suzan, by virtue of the claim that it
was a single employer or alter' ego of BMD, was not, present at the earli-
er part of the hearing before it was alleged as a respondent, and thus
could not defend as to the underlying unfair labor practices testified to in
that period I affirm my ruling made at the hearing to permit Suzan to be
named as a respondent. Suzan was served with a copy of the charge and
complaint that alleged its alter ego and single employer status. Thereaf-
ter, at the hearing, these issues were fully litigated with Suzan being
given full opportunity to develop evidence as to that. The new charge
was filed on 7 January 1986 and the complaint issued on 21 January. The
hearing resumed on 18 February, and continued thereafter for 7 days.
Suzan's attorney attended the hearing on only 1; day, 17 March, when its
president testified. Compare George C Shearer Exhibitors, 246 NLRB 416
fn. 3 (1979)
In addition, Suzan and BMD were given the opportunity to call and
recall witnesses, as to the alter ego and single employer issues, who testi-
fied about such matters in the initial 4 days of hearing.
Although Suzan was not "present" at the initial 4 days of the hearing
because it had not yet been served with the complaint or named as a
party, nevertheless, once' found as BMD's alter ego, Suzan cannot com-
plain that it was not present at the early part of the hearing-because the
interests of alter egos are identical, and Suzan was present and did defend
itself through the representation of BMD Southeastern Envelope Co , 246
NLRB 423, 424 (1979). See also Hopkins Hardware, 271 NLRB 175
(1984) Seaward International, 270 NLRB 1034 (1984), cited by Respond-
ent is inapposite In that case, the General Counsel adduced testimony
only as background material and not in support of a separate violation.
However, following the close of the General Counsel's case and testimo-
ny by most of the respondent's witnesses, the General Counsel moved to
amend the complaint to include an independent violation based on that
testimony Here, the amendment, including Suzan as a respondent and
naming it as an alter ego and single employer, was made during the Gen-
eral Counsel's case early in the hearing and no misrepresentation was
made as to the purpose of the amendment.
However, the focus of the alter ego doctrine,
unlike that of the single, employer doctrine, is on
the existence of a disguised continuance or an at-
tempt to avoid the obligations of a collective-bar-
gaining agreement through a sham transaction or
technical change in operations.
However, "absent a.disguised continuance, the Board
generally finds alter ego status only where the two enter-
prises have substantially identical ownership, business
purpose, management, supervision, customers, operation
and equipment." T E. Elevator Corp., 268 NLRB 1461
(1984). It should be noted that "no one factor is control-
ling and all need not be present. Complete identity in
ownership is not a requisite, particularly where owner-
ship resides in members of the same family. Centralized
control of labor relations is the most important single
factor." Super Save, 273 NLRB 20, 28 (1984). ,
The General Counsel alleges in the complaint that
Suzan was established by BMD as the disguised continu-
ation of a part of the business of BMD, and in her brief
states that the timing of the. creation of Suzan, inter -alia,
shows that BMD attempted to shift its operations to
Suzan in order to avoid unionization. A threshold ques-
tion therefore is whether Suzan's creation was related to
the Union's campaign at BMD.
The evidence establishes that the first contact with the
Union by BMD employees was made on 17 April, and
the first mention of the Union by a respondent official-
was on 19 April. However, there was unrebutted testi-
mony that the building that was to house Suzan was pur-
chased 1 month earlier, in March'24 and the certificate of
incorporation for Suzan was filed with the New York
Secretary of State on 24 April, Even if action was taken
on Friday, 19 April, to incorporate Suzan, the first day
of Respondent's knowledge of the union drive, it is un-
likely that incorporation could have been achieved 3
working days later, on 24 April.25
As set forth above, however, even if Suzan was not
created for the purpose of shifting operations to it from
BMD, its existence for that purpose would be unlawful.
Samuel Kosoff & Sons, 269, NLRB 424, 429 (1984) (dis-
guised extension). Nevertheless, an alter ego relationship
may be found even in the, absence of a disguised continu
ance. T. E. Elevator Corp., supra.
BMD and Suzan have virtually identical operations, in
that they are both garment industry contractors that sew
sweaters. They, utilize the same types of machinery and
the same classifications of employees to perform the
same functions-at locations not too distant. Certain ma-
chines were given to Suzan by BMD.
There is some dispute as to the identity of customers,
and,no definite finding can be made that Suzan performs
work for Kenneth Too. 26 However, AM Knitwear is a
joint customer of both Companies, with Suzan perform-
24 No conclusive evidence, such as contract of sale or deed was of-
fered, however.
25 No conclusive evidence, such as copies of filed documents or postal
return receipts were offered
26 Kenneth Too's records were not offered in evidence
BMD SPORTSWEAR CORP. 155
ing most of its work for that Company, and BMD doing
such work when it needs jobs to fill in.
As to ownership, "the Board does not view legal own-
ership in a vacuum, but instead looks to the totality of
the circumstances to determine where the real control
exists." East Tennessee Packing Co., 270 NLRB 520, 524
(1984). Suzan is owned entirely by Jovo Milosevic and
his' wife. BMD is owned by Bora Dordevic, the brother
of Jovo. Thus, although the two Companies have differ-
ent owners, the "totality of the circumstances" must be
viewed. When that is done, the evidence is that ( 1) Bora
and Jovo jointly purchased the building that houses
Suzan, (2) Dordevic "lent" Milosevic $20,000 toward the
purchase of the building; (3) Dordevic "lent" Milosevic
$20,000, which was deposited in and became Suzan's ini-
tial bank deposits, for which no loan documents were ex-
ecuted and which is still outstanding; (4) BMD ordered
and paid $16,000 for two new machines, which Suzan
repaid; and (5) BMD ordered and `paid in part for iron-
work performed at Suzan. Such is evidence of alter ego
status. Denzil S. Alkire, 259 NLRB 1323, 1324 (1982);
Farmingdale Iron Works, 249 NLRB 98, 107 (1980).
Regarding management , supervision, and control of
labor relations, Dordevic admittedly played an active
role in the startup of Suzan, giving Milosevic advice and
soliciting customers and prospective employees, and he
was concededly present, at first, to help his brother and
show him how to do the work. The testimony was that
although Dordevic was present at Suzan frequently in
the beginning of its operation, his presence tapered off,
and he was there less often, but when he was present he
checked the work done by the operators, brought sam-
ples, and fixed machines. Although he may have re-
mained in the background at Suzan , his presence was
felt, even when he was not there, and in his relationship
with the Suzan employees he did exercise supervisory
control. Super Save, supra.
Thus, employees Khalil and Lopez, former workers of
BMD, were actually hired by Dordevic to work at
Suzan ,27 When disagreement with the pay or the work
at Suzan occurred, calls were made to Dordevic at
BMD, who resolved the ' problems. Dordevic ' and his
wife, an official of BMD,, warned Khalil, who was then a
Suzan former employee, 'that if she continued to collect
unemployment benefits she would be reported. The only
explanation for Dordevic's being upset at Khalil' s abuse
of Suzan's unemployment insurance account is that Dor-
devic was closely involved with the management and
labor relations activities at Suzan.
In addition, Dordevic's wife, an official of BMD and
an admitted supervisor, distributed work at Suzan, and
BMD's secretary was observed writing on the piecework
tickets at Suzan . It should be noted that Suzan has its
own, separate floorlady.
It is clear that inasmuch as Jovo Milosevic lacked the
management experience and expertise in the industry, he
would have to and did rely on Dordevic to supply the
27 Even the recommendation of employees, admitted by Dordevic, has
been found to be a factor leading to a finding of alter ego status Denzil
S Alkire, supra at 1325.
expertise in setting up and running Suzan . Rogers Clean-
ing Contractors, 277 NLRB 482, 488 (1985).
It is clear that Dordevic, a close relative of Milosevic,
dominated the management of both companies, J. M.
Tanaka Construction, 249 NLRB 238, 241 (1980), and
"continued to have influence- and played a substantial
role in the operation (of the company)" Denzil S. Alkire,
supra.
When the above evidence is considered in the context
of the credited statements about Dordevic's reaction to
the Union, a finding of alter ego status is compelled.
Thus, Supervisor Milkenvoic repeatedly threatened the
workers that if they selected the Union, Dordevic would
close the factory, and reopen it under another name or
owner and replace the employees. Dordevic also told
employees that he would close the shop before recogniz-
ing the Union, and told Suzan employee Lopez that if
the union "problem" continued he was contemplating
closing BMI7 and expanding operations at Suzan. Al-
though the opposite, in fact, occurred-Suzan was closed
in February 1986-in the beginning of Suzan's operation,
when Khalil and Lopez were hired, Dordevic suggested
that they work at Suzan where the work was plentiful,
and not at BMD, where the work was slow. Thus, the
statements set forth above show an intention by BMD to
use Suzan as an alter ego to divert its operations to
Suzan and avoid unionization of that company. Nabco
Corp., 266 NLRB 687, 694 (1983); Fugazy Continental,
265 NLRB 1301, 1303 (1982). This is made all the clearer
by Dordevic's telling Suzan employee Lopez that he
would tell Milosevic not to hire Paz who was an outspo-
ken union advocate.
Respondent, citing L & J Equipment, 274 NLRB 20
(1985), argues that alter ego status should not be found
where a brother helps another get started in business, es-
pecially given the assistance extended to Dordevic by
Milosevic when he arrived in the United States. While I
agree that a close family member should not be preju-
diced or placed at risk for helping another, the facts as
set forth above establish that Dordevic went, far beyond
simple assistance to Milosevic. L & J is inapposite be-
cause the two companies there were totally independent
corporations as to their operations and control of labor
relations. The employees in L & J, unlike here, were sep-
arately hired and assigned, and there was no common su-
pervision. Here, Khalil and Lopez were hiredby BMD
to work at Suzan, and Dordevic and his wife exercised
supervisory authority over Suzan's employees.
I, accordingly, find and conclude that the preponder-
ance of the evidence supports a finding, which I make,
that Suzan is'the alter ego of BMD, and that they consti-
tute a single employer.
V. THE ALLEGED INTERROGATIONS, WARNINGS, AND
THREATS
The complaint alleges that Respondent interrogated
employees; warned and directed them to refrain from be-
coming members of the Union; and threatened them with
discharge and with plant closure if they became or re-
mained members of the Union and if they gave any as-
sistance and support to it.
156 DECISIONS OF THE NATIONAL- LABOR RELATIONS BOARD
The General Counsel alleges that, in certain of the
conversations, in which-,Antonio Otero acted as the in-
terpreter, Respondents ,are responsible for the statements
uttered through Atero at the times he interpreted for Re-
spondents' officials. I agree. I, accordingly, find that
Otero was an agent of Respondents when he interpreted
their statements. Tweel Importing Co., 219 NLRB 666,
671 (1975).28
BMD and Suzan's witnesses denied interrogating,
warning, or threatening employees. I credit the testimo-
ny of the employee witnesses who testified concerning
these matters. They all testified, as to these conversa-
tions, in a straightforward, honest, consistent manner
about matters that had a great impact on them and that
must have impressed them strongly. Their testimony is
believable also because of - the numerous instances of
similar remarks being made in a short span of time when
the union campaign was at its height.
I, accordingly, find the following, all set forth in detail
above, to violate Section 8(a)(1) of the Act.
(a) Dordevic's question- to Garcia on 19 April if she
and Paz called the Union.
(b) Milkenvoic's question to Garcia on 19 and 24 April
whether' she signed any papers for the Union, and her
further inquiry on 19 April as to why she was supporting
Paz.
(c) Milkenvoic's questions on 22 April to Garcia
whether she signed papers that Paz had for the Union
and inquiry as to who else signed , and her statements to
Paz that she was silly and stupid; her accusation that Paz
forced workers to sign cards; and her threat that Dorde-
vic'would lay off everyone who signed cards, close the
shop, change its name, and replace the workers; and her
question whether Garcia called the Union.
(d) Milkenvoic's threat to Paz on 23 April that if she
signed cards for the Union or called it she would be
flied, and her repeated threat that Dordevic, because of
his dislike for the Union, would close the factory, change
its name, and replace its workers.
(e) Milkenvoic's question on 23 April to Chunga
whether she liked the Union and if she signed a card for
it.
(f) Milkenvoic's question to Rivera during the week of
Paz' layoff as to why Paz did not get a job in a union
shop if she was in the Union, and her statement that
Dordevic's friend's reaction to the same problem with a
union was to close and move, and -Dordevic would do
the- same.
(g) Dordevic's threat on 24 April to Paz that he would
close the shop if the Union came in.
(h) Mira Dordevic's questions on 24 April to Nunez if
she knew of the Union, whether she spoke to the union
agents, and whether she was in the Union or signed a
union card.
28 In her brief, the General Counsel also claims that Otero was Re-
spondents' agent in connection with a conversation, described above,
with employee Amalia Paredes I disagree Otero, a rank-and-file employ-
ee, spoke to Paredes alone, and was not interpreting at that time More-
over, no complaint allegation identified Otero as having specifically, inde-
pendently, violated the Act. In addition, at the hearing, the General
Counsel expressly stated that she named Otero as an agent solely with
respect to those occasions when he acted as an interpreter It would thus
be unfair to now allege that Otero independently violated the Act.
(i) Bora Dordevic's questions on 24 April to Nunez if
she knew about the Union, who spoke to her concerning
it, and whether she signed a card; his warning that if she
did not sign, she could continue to work; and his state-
ment that he would close his shop before the Union en-
tered and that if the Union came in he would close.
(j) Milkenvoic's statement to Cedeno, before the elec-
tion, that if the Union won the election, Dordevic would
close the factory.
(k) Dordevic's statement to Lopez before the election
that if the union problem continued he, contemplated
closing BMD and expanding operations at Suzan.
(1) Dordevic's statement to Khalil in the summer of
1985 that he would rather close if the Union were to or-
ganize BMD; and his questions whether she was in-
volved with the Union, whether she signed a card for it,
and whether, she knew who signed union cards.
(m) Jovo Milosevic's question in late July or, early
August to Khalil whether she signed a card for the
Union; and his statement that he knew she signed such a
card.
(n) The sign posted in the shop that said "please vote
for BMD and Save our job. Thank you."
The Board held in Rossmore House, 269 NLRB 1176,
1177 (1984), that the basic test for evaluation of, whether
interrogations violate the Act is: ". . . whether under all
of the circumstances the interrogation reasonably tends
to restrain, coerce, or interfere with rights guaranteed by
the Act." The Board also pointed out:
Some factors which may be considered in
analyzing alleged interrogations are: (1) the
background; (2) the nature of the information
sought; (3) the identity of the questioner; and
(4) the place and method of interrogation. See
Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964).
These and other relevant factors are not to be
mechanically applied in each case. Rather,
they represent some areas of inquiry that may
be considered in applying the Blue Flash test
of whether under all the circumstances the in-
terrogation reasonably tends to restrain,
coerce, or interfere with rights guaranteed by
the Act. [269 NLRB at 1178 fn. 20.]
The evidence is clear that the questions and inquiries
of the employees, which I have credited as set forth
above, constitute unlawful interrogation. The atmosphere
in which the questioning occurred was charged with and
accompanied by hostility and unlawful threats of dis-
charge and plant closure. Master Security Services, 270
NLRB 543, 550 (1984). There was no need to know the
information sought and the questioning was conducted,
in part, by the owners of BMD, and Suzan, which must
have tended to restrain and coerce the workers. Thus,
the questions of employees whether they called the
Union; whether they signed cards for the Union;29 who
29 At the hearing on 18 February 1986, the General Counsel moved to
amend the complaint to allege ,that Mdosevic interrogated employees (see
Continued
BMD SPORTSWEAR CORP. 157
else signed cards for the Union; whether workers liked
the Union; why Paz did not get a job 'in a union shop if
she was a union member; whether employees knew of or
spoke to the union agents all are unlawful interrogations
and violate Section 8(aXl) of the Act. Moe Warehouse &
Accessory, 275 NLRB 1132, 1140-1141 (1985); Carpenter
Trucking, 274 NLRB 300, 302 (1985).
The evidence is also clear that the numerous threats to
employees, set forth above, as to discharges and plant
closure, because of the Union, constitute unlawful threats
in violation of Section 8(a)(1) of the Act.30 Moe Ware-
house, supra; J. & G. Wall Baking, 272 NLRB 1008, 1011
(1984); Central Motors, 269 NLRB 209 (1984); Bronx
Metal Polishing, 268 NLRB 887, 889 (1984); Atlas Micro-
filming, 267 NLRB 682 fn. 2 (1983).
The sign that said, "Please vote for BMD and save our
job. Thank You." was posted in the shop for several
days before the election. It was prepared and posted by
employees, and there is no credible evidence that Re-
spondents promoted its preparation} of posting. However,
the evidence is clear that Respondent was aware of its
presence (Dordevic told his wife to look at it), and per-
mitted its 'continued presence . In addition, the message
was consistent with other threats made by Respondents.
Thus, the message in effect stated that employees' jobs
would be saved if they voted against the Union,31 with
the implication being that if they voted for the Union
they would .lose their jobs. I accordingly find that Re-
spondent ratified the act of the 'employees in preparing
and posting the sign, and in permitting it to remain
posted, and that therefore the sign also threatened em-
ployees with job loss if the Union was selected by them.
V1. THE LAYOFFS
All the seven laid-off employees discussed the Union
among themselves and signed cards for the Union short-
ly before their layoff. Lopez, Paz, and Paredes signed
their cards in front of, the shop. Chunga, Garcia, Nunez,
and Paz were subjected to unlawful interrogation 1 to 3
days before their layoffs, and Nunez and Paz were the
subjects of unlawful threats 1 day before their layoffs.
Dordevic knew of the Union at least on 19 April and
certainly not later than 22 April.
Given the timing of the layoffs, which began on 23
April, coming on the heels of the Union' s organizing
campaign, and the animus of Respondent BMD as dem-
onstrated in its interrogations of employees about their
union activities and threats to lay off workers who
"m" above) Respondent BMD objected on the ground that the amend-
ment was untimely . I reserved decision. The charge against Respondent
Suzan was filed on 7 January 1986, and alleged that that Company was a
single-integrated enterprise or alter ego of Respondent BMD The inter-
rogation, as testified by Khalil , which I have credited , occurred in late
July or early August 1985. The charge's language that "by these and
other acts, the employer has interfered with, restrained and coerced em-
ployees in the exercise of Section 7 rights," covers the interrogations al-
leged at the hearing. In addition , the interrogations occurred within 6
months of the filing of the charge. I, accordingly, overrule the Respond-
ents' objection, and permit the amendment to the complaint. J. M.
Tanaka, 249 NLRB 238, 243 fn . 1 (1980)
30 M4kenvolc's report to the employees of Dordevic's intentions vio-
late the Act as unlawful threats on their own , and as reports that Dorde-
vie had made these threats -A & E Stores, 272 NLRB 737 (1984)
31 The sign had a box labeled "no "
signed cards or called the Union, and its threats that it
would close the shop, and replace its employees and
reopen under a different name, I find that the General
Counsel has made a prima facie showing that the union
activities of five of the seven employees was a motivat-
ing factor in Respondent's decision to lay them off.
Wright Line, 251 NLRB 1083 (1980).
Specifically, Chunga was employed for 2-1/2 years at
the time of her layoff. She discussed the Union with her
fellow employees, and on' 22 April signed a union card.
On 23 April, she told Milkenvoic that she liked the
Union and signed a card for it. The next day she was
laid off.
Lopez was employed for 2-1/2 years at the time of her
layoff. She spoke about the Union with Paz, and on 24
April signed a card outside the shop in the pnesence of
Paz, who had already been laid off, and a union agent,
who was by then known to Respondent. The next day
she was laid off.
The union agents were conspicuously present on 22
and 23 April speaking to employees in front of the shop,
and on 23 April Milkenvoic observed them,
Mejia spoke with her fellow employees including
Garcia and Paz at work about the Union. Although Mil-
kenvoic was nearby, there was no evidence that she
could understand the Spanish conversations. On 22
April, Mejia signed a card at home and the next day was
laid off with Paz.
Mejia was not subjected to any interrogations or
threats. On these facts, I cannot draw an inference that
Respondent was aware of her union activities. There was
no evidence that Respondent knew that she spoke with
anyone about the Union, or of her card signing at home.
The small-plant theory was not asserted by the General
Counsel, nor could it be applied here where 75 employ-
ees were working at that time. I accordingly fmd that
the General Counsel has not made a prima facie showing
that Mejia's layoff was motivated by her union activities.
Paredes worked for about i year, was asked at work
by Paz on 23 April to sign a card, and did so after work
one block from the factory.
She was laid off on 3 May. There was no evidence
that Respondent saw or understood her conversations
with Paz, or that it was aware of her card signing one
block from the shop. Unlike other employees who were
laid off almost immediately after they signed cards in
front of the shop, she was not laid off for 1-1/2 weeks
after she signed a card away from the shop. She was not
the subject of interrogation or threats. On -these facts I
cannot find that the General, Counsel has made a prima
facie showing that Paredes layoff was motivated by her
union activities.
Nunez was employed for 1 or 2 months in 1984 and
for 3 or 4 weeks in 1985 at the time of her layoff. On 23
April she spoke to Paz at lunch about the Union, and
signed a card at home. The next day, after waving to the
union agents, she was interrogated by Mira Dordevic
and later by Bora, and admitted signing a card. She was
also threatened with,layoff and that the shop would be
closed. She was laid off the next day. Respondent's wit-
nesses testified that Nunez was hired as a temporary em-
158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployee to work only until a certain job that she was
working on was finished. I reject this testimony. There
was no evidence as to what job she was working on, or
how long it was to last. Her prior employment, also as a
presser, for 1-2 months in 1984 ended because she could
not locate a babysitter, and not because she was hired
then as a temporary employee. Moreover, the abruptness
of her layoff coming 1 day a€ter, she waved to union
agents from inside the shop and was then immediately in-
terrogated and threatened with layoff by Bora and Mira
Dordevic, and admitted signing a union card, lend strong
support to a finding that her layoff was motivated by her
union activities.
Garcia and Paz were the most active and vocal union
supporters. They called the Union, signed cards, actively
solicited others to join the Union, stood with the union
agents outside the shop and spoke to their fellow work-
ers, and were the subjects of interrogations and threats
shortly before their layoffs. Garcia was told by Milken-
voic that she knew that Garcia wanted the Union. Simi-
larly, Milkenvoic criticized Paz for supporting the Union
and Paz admitted having called the Union. She was
warned that if she called the Union or signed a card for
it she would be fired.
I accordingly find and conclude that a prima facie
showing has been made that the decision to lay off
Chunga, Paredes, Nunez, Garcia, and Paz was motivated
by their union activities. Wright Line, supra.
Dordevic denied laying off the five employees because
of their union activities or sympathies. Rather, Respond-
ent asserts that the workers were laid off for lack of
work. BMD's records received in evidence, however, do
not support this defense. Thus, Dordevic testified that
some orders were canceled in February, more were can-
celed in March, and most were canceled in April. He
began laying off personnel in February. Dordevic also
stated that his slow season ran from early March to late
May 1985.
The important period of time to examine is the period
preceding BMD's knowledge of the Union's campaign.
BMD's records show the following number of employ-
ees employed as of the week ending:
1 March-73 19 April-75
8 March-73' 26 April-7632
15 March-73 3 May-71
22 March-76 10 May-65
29 March-75 17 May-64
5 April-75 24 May-63
12 April-75 31 May-62 -
Respondent was first aware of the employees' interest
in the Union on 19 April.
The week ending 26 April was the week in which the
bulk of BMD's unlawful interrogations and threats oc-
curred, and in which six of the seven alleged discrimina-
tees were laid off.
32 That number is apparently the total number of employees employed
in that week, according to Secretary Rajkov's testimony. The layoffs that
week would therefore reduce the number
The following week, 3 May, the payroll numbered 71,
and thereafter, until 15 November, it -ranged from 59 to
65.33
Thus, the records reveal that prior to the advent of the
Union, weekly employment levels in March and April
were quite high-from 73 to 76 workers. What is curious
and suspect is that these high levels existed at a time
when, according to Dordevic, substantial amounts of
orders were being canceled by its customers and layoffs
were taking place.
In addition, although Dordevic identified the slow
season as running from -early March to late' May, the
number of employees employed weekly in that period
averaged 71 workers. In contrast, from the week ending
7 June until 15 November, presumably Respondent's
busy season, the-employee complement averaged 62.
These payroll records simply do not support a finding
that some orders were canceled in February, more in
March, and most in April, with accompanying layoffs
because of the reduction in orders, as testified by Dorde-
vic. In contrast, the records show that in March and
April, employment was at its highest, with more workers
employed in April'than in March.
It thus appears that notwithstanding BMD's claimed
reasons for the layoffs in the week ending April 26-lack
of work due to cancellation of orders-employment re-
mained at high levels during the period 1 March to 26
April, when the records should have revealed lower em-
ployment. It was not until the Union's appearance as an
active force on 22 April that the layoffs of workers
began, and the payroll dropped markedly.34
In sum, Respondent has not met its burden that it
would have laid off the employees in the absence of their
union activities. Wright Line, supra.
Additionally, even assuming BMD had insufficient
work and was therefore justified in laying off the five
employees, inasmuch as I have found that Suzan was the
alter ego of BMD, Suzan, which began operations on
May, had sufficient work and hired other employees,35
and could have employed the five laid off here.
In making this finding, I have considered the fact that
in late July, former Suzan employee Khalil told Dorde-
vic that she signed a card for the Union and no action
was taken against her. Rather, Dordevic told her to
return to work at Suzan. This would tend to indicate
that Dordevic took no action against a card signer, and
thus had no animus toward the Union in the layoffs of
the five BMD employees. However, I believe that it sup-
ports a finding of the discriminatory layoff of the,five. In
the same conversation, Dordevic told Khalil -that he did
not want a union at BMD and would rather close, and
he did not accept her for work at BMD because, in addi-
tion to having no work, he had many problems due to
the employees' desire for union representation. Thus, he
33 The period 1 March to 15 November was the only period offered in
evidence
34 I am aware that two employees -were laid off on 29 March and one
on 19 April.
35 Milosevic testified that Suzan began operations with 6 to 15 employ-
ees
BMD SPORTSWEAR CORP. 159
suggested that she return to Suzan, which was not the
object of the Union's organizing campaign.
V U. THE RETURN TO WORK OF GARCIA AND PAZ
A. Action Taken Against Them
Garcia and Paz were recalled to work on 11 Novem-
ber, following their layoffs in late April. A charge had
been filed concerning their layoffs, and on 24 October a
complaint had issued alleging that the layoffs violated
the Act.
The General Counsel asserts that, on their return to
work, they were subject to certain unlawful actions, de-
signed to force them to quit, and their subsequent quit-
ting constituted their unlawful constructive discharge.
The actions alleged in the complaint are the:
(a) Assignment to more arduous and less agreeable
job tasks.
(b) Reduction of their rate of pay by their assign-
ment to lower paying job tasks.
(c) isolation of their work stations.
(d) Issuance of a warning letter to Paz.
It is further alleged that those actions against Garcia
and Paz were taken because of their union activities and
because they gave testimony under the Act.
As set forth above, Garcia and Paz were returned to
work and placed in an area separate from that occupied
by other merrow machine operators. Although the dis-
tance between their work stations and that of the other
operators was not that great-only 8 feet across an open
hallway-their segregation into a separate area served to
mark them as pariahs, and as persons not welcome in.the
BMD family.
The area that they were assigned to had never before
been used as a merrow machine workplace, and merrow
machines had ever been situated there. The only reason
given for their assignment to that location was that boxes
of material blocked ' Garcia's regular workplace. Garcia
had worked without difficulty in her usual place in the
past with boxes around her machine, and even if this
were true, there was no showing as to why the boxes
could not be moved, and also the reason given does not
explain why Paz could not have returned to her regular
workplace. Indeed, Paz' regular workplace and machine
were available and unoccupied. Garcia and Paz' repeated
requests to be moved were ignored; nothwithstanding
that there were four' vacant machines in the merrow
area. Pilliod of Mississippi; 275 NLRB 799 (1985).
In addition, Garcia and Paz, by virtue of their new
work area, were subject to the combined effect of heat
from the steam machine and cold air from the open
door. While it is true, that, the nearest merrow operator
to them, only 8 feet away, would surely have also been
exposed to the cold air, almost to the same extent as
them, it appears that they were placed in that location so
that they would suffer the most intense effect of these
conditions. Thus, they were the closest to the steam ma-
chine, and also nearest to the roll-up gate. The discrimi-
natory 'nature of their assignment so close to these ad-
verse elements is clearly seen in Respondent's ignoring
their pleas that the door be closed; telling them that per-
haps they would be moved but never doing, so, and
laughing at their attempts to keep warm; while at the
same time honoring the request of others that the door
be closed.
I also find that they were assigned to machines that
were inefficient and difficult to operate, and that Paz' re-
quests for repairs to the equipment were ignored. Al-
though Garcia's machine was repaired, it still did not op-
erate well. The discriminatory nature of the assignment
to these machines is readily seen in the failure of Re-
spondent to move the two to other machines, despite
their repeated requests, Their assignment to these ma-
chines did result in a reduction in their earnings because
they could not be operated as efficiently as their former
machines.
I find, as alleged, that the issuance of the warning
letter to Paz violated the Act. She took the photos, in a
space of 2 minutes, to document her claim that she
worked in an isolated location. Photographs had freely
been taken before this, without permission, by Paz and
others, on social occasions. Dordevic issued the warning
letter because she did not obtain permission and disrupt-
ed the operation. This is in contrast to Respondent's ar-
gument that pieceworkers' attendance was irrelevant to
it because if they do not work they are not paid. Dorde.,
vic's exaggerated response to the picture taking-threat-
ening to call the police and have her arrested-empha-
size that the warning letter was discriminatory.
That the letter was issued because of her activity in
the past as a union advocate and outspoken leader of the
Union's campaign is clear in view of the illegal interro-
gations, threats, and layoff that she was subject to before.
Moreover, Dordevic told an employee prior to her recall
that he would tell Milosevic not to hire Paz. The fact
that Dordevic, when accused by Paz of hating her be-
cause she called the Union, told her to forget about the
past, does not minimize the discriminatory nature of the
warning letter, the first of its kind ever given to a BMD
worker. In addition, the reaction to the picture taking
demonstrated Dordevic's animosity toward Paz for her
union activities because, by taking the pictures, she
sought to document her later charge that her work sta-
tion was discriminatorily located. In fact she told Dorde-
vie, when he asked why she took the photos, that she
wanted to show her work location.
However, I cannot find, as alleged in the complaint,
that Garcia and Paz were discriminated against by their
assignment to lower paying job tasks. Paz testified that
on her return to work in November, the piece rate for all
the merrow operators, including she and Garcia, was
$2.50. There can be no discrimination against her if the
new' piece rate was applied equally to all the workers.
There has been no allegation, nor has it been proven,
that the piece rate was uniformly unlawfully reduced.
Rather it was applied equally to all.
Paz' complaint, however, is that her ability to earn the
same pay as before her April layoff was reduced because
she and Garcia were assigned to the tedious jobs of
matching lines on loose, heavy material. Such time-con-
suming work caused them to complete fewer pieces and
they therefore received less pay in the piece-rate system.
160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dordevic testified that he assigned work equally to all
the workers, and he gave small lots to two or three
workers without favoritism. Other workers testified that
the complex work of matching lines was given to the
more experienced workers. Paz gave contradictory testi-
mony about the prices paid for the work. First she testi-
fied that on her return in November, jobs were priced at
$2.50 and $3.50 per dozen. Then she stated that all jobs
were $2.50, but. she did very little work priced more
than $2.50, and was not given the same amount of higher
priced work as the other merrow operators. This indi-
cates that she was given some higher priced work.
Garcia too gave testimony that did not support this alle-
gation . She stated that in November the thick material
work at issue was shared among all the workers.
On such testimony, and in the absence of proof of
rates of pay and gross pay earned by Garcia, Paz, and
the other workers, and the amounts of various types of
work performed by the merrow operators, I cannot find
that Respondent assigned them to lower-paying job
tasks.
In sum, I fmd that the General Counsel has made a
prima facie showing that the (a) isolation of the work
stations of Garcia and Paz, at which they suffered ad-
verse conditions in terms of their location near the steam
machine and gate, (b) assignment to inefficient machines,
and the resulting reduction in the amount of earnings
they received, and (c) issuance of a warning letter to Paz
were motivated by their union activities.
It is clear that the isolation of Garcia and Paz and
their location near the steam and gate causing them to
build a barrier of material and cover themselves to keep
warm, which was met by Mrs. Dordevic's laughter, was
designed to and did hold them up to ridicule before the
other employees and its purpose was to discredit their
militant advocacy of the Union. Silver State Disposal Co.,
271 NLRB 486, 491 (1984). Similarly, I find that their as-
signment to inefficient machines and the reduction of the
amounts of earnings they received due to the machines'
inefficiency were in reprisal for their union activities.
City Service Insulation Co., 266 NLRB 654, 659 (1983). In
addition, the issuance of the warning letter was also in
retaliation for Paz' leadership in the union campaign.
I accordingly find that these actions were motivated
by their union activities. However, I am not persuaded
that the General Counsel has established a prima facie
case showing that Respondent violated Section 8(a)(4)
and ,(1) of the Act. Dordevic in his remarks to Garcia
and Paz made no reference to their participation in the
Board proceeding in Case 29-CA-11824-1, -2 or Case
29-CA-11929.
To establish a violation of Section 8(a)(4) of the Act
the record must show that Respondent's discrimination
against employees was "because they had filed charges
or given testimony under the Act." I fmd no such show-
ing has been made. Accordingly, I shall recommend dis-
missal of the allegation that by its treatment of Garcia
and Paz, Respondent also violated Section 8(a)(4) of the
Act.
Respondent has not met its burden of showing that it
would have taken the same actions against Garcia and
Paz in the absence of their union activities. Wright Line,
supra.
B. The Constructive Discharges
The General Counsel alleges that the actions taken
against Garcia and Paz on their return to work in No-
vember caused their constructive discharge.
The Board [citing Crystal Princeton Refining Co.,
222 NLRB 1068, 1069 (1976)] has held that a con-
structive discharge occurs when an employee quits
because an employer has deliberately made working
conditions unbearable . Two elements must be
proven to establish a constructive discharge:
First, the burdens imposed upon the employee
must cause, and be intended to cause, a change in
his working conditions so difficult or unpleasant
as to force him to resign . Second, it must be
shown that those burdens were imposed because
of the employee's union activities . [Algreco Sports-
wear Co., 271 NLRB 499 , 500 (1984).]
The record must demonstrate that the conditions im-
posed on Garcia and Paz "were so intolerable as to force
them to resign, or that the Respondent would reasonably
have expected [them] to quit." Algreco, supra.
Garcia and Paz, the most vocal and active of the
union - advocates, initiated the Union 's organizing cam-
paign, actively solicited other employees in and out of
the shop to sign cards, and stood with union agents out-
side the premises and spoke to and solicited their fellow
employees. It is clear that Respondent harbored great an-
imosity toward them , and I have found that Garcia, the
subject of illegal interrogations , and Paz , the object of in-
terrogations and ' illegal threats , were in fact laid off in
April because of their union activities.
Garcia and Paz were 'recalled , and at the same time
subject to discriminatory treatment because of their ad-
vocacy of the Union.
I believe that the evidence supports a finding that the
isolation of Garcia and Paz to a location near the steam
machine and gate which subjected them to adverse con-
ditions causing them to build barriers and cover them-
selves to keep warm held them up to ridicule; assignment
to inefficient machines which caused them to earn less
than they might have and the issuance of the warning
letter to Paz accompanied by an overblown reaction to
innocent picture taking to indicate her right to a nondis-
criminatory work location, all show that Respondent
sought to make Work so intolerable that they would have
to quit, thus ridding Respondent of prominent union sup-
porters. Ace Machine Co., 249 NLRB 623, 632 (1980). I
believe that the isolation (Hall of Mississippi, 249 NLRB
775, 778 (1980)), the adverse work conditions , and the in-
efficient machines that affected their earnings, so that
they were forced to resign (City Service Insulation Co.,
supra; Ellis Toyota , 266 NLRB 442, 455 (1983)), and the
issuance of the warning letter to Paz for a 'brief, minor
photo session were all designed to and did cause the res-
ignations of Garcia and Paz.
BMD SPORTSWEAR CORP. 161
Further evidence of the motive in making conditions
unbearable to force the resignations of Garcia and Paz
may be seen in Dordevic's conversation with Paz when
she took the pictures. According to Dordevic' s testimo-
ny, Paz asked him why he did not fire her. Dordevic re-
plied that he did not need to. I infer from this that he
correctly believed that he did not have to fire her, and
face another charge, because he would make life at
BMD so intolerable that she would have to, and did quit.
The facts that their attempts to protect themselves
from the steam and keep warm when the door was open
were met with laughter by Mrs. Dordevic, while at the
same time their request to be moved were ignored, all
demonstrate that these burdens, when combined with the
inefficient machines, the reductions in earnings, and the
warning letter caused and were intended to cause condi-
tions that forced them to resign, and Mrs. Dordevic's
laughter and Mr. Dordevic' s statement that he did not
need to fire Paz also show that Respondent reasonably
expected them to quit because of these intolerable condi-
tions.
The conditions made Garcia and Paz' continued em-
ployment with Respondent untenable and compelled
their resignation. Furthermore, the foreseeability of their
resignations coupled with Dordevic 's union animus, com-
bine to support a finding that this was the intended result
of the conduct. Bronx Metal Polishing Co., 276 NLRB
299, 305 (1985).
VIII. THE OBJECTIONS TO THE ELECTION
The Union's objection is as follows:
The Employer threatened its employees with plant
closure if the Petitioner won the election.
Inasmuch as I have found violations by Respondent of
Section 8(a)(1) of the Act by threatening employees with
plant closure in the critical preelection period, this objec-
tion is sustained , and I will recommend that the election
be set aside and the Regional Director be directed to
conduct a second election.
CONCLUSIONS OF LAw
1. Respondent BMD Sportswear Corp. is and at all
times material herein has been an employer engaged in
commerce within the meaning of the Act.
2. Respondent Suzan Knitwear Corp. at all times mate-
rial herein has been an employer engaged in commerce
within the meaning of the Act.
3. Respondent Suzan Knitwear is the alter ego of Re-
spondent BMD Sportswear, and they constitute a single
employer.
4. Knitgoods Workers Union, Local 155, International
Ladies Garment Workers Union, AFL-CIO is a labor
organization within the meaning of the Act.
5. By laying off Gloria Chunga, Carmen Lopez,
Edilma Nunez, Maria Garcia, and Mercedes Paz because
of their membership in and activities on behalf of the
Union, Respondent violated Section 8(a)(3) and (1) of the
Act.
6. By constructively 'discharging Maria Garcia and
Mercedes Paz because of their membership in and activi-
ties on behalf of the Union, Respondent violated Section
8(a)(3) and (1) of the Act.
7. By isolating the work stations of Maria Garcia and
Mercedes Paz, causing them to be subject to adverse
conditions in terms of their location to the steam ma-
chine and gate; by their assignment to inefficient ma-
chines and the resultant reduction in the amount of earn-
ings they received; and by the issuance of it warning
letter to Mercedes Paz, all because of their membership
in and activities in behalf of the Union, Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
8. By asking employees if they called the Union;
whether they signed cards or any papers for the Union;
why employees were supporting Mercedes Paz; who
signed for the Union; why Paz did not get it job in a
union shop if she was in the Union; if they knew of the
Union; and whether they spoke to union agents; if they
were in the Union; and who spoke to them about the
Union, Respondent violated Section 8(a)(1) of the Act.
9. By telling employees that they were silly and stupid
in connection with the Union; by accusing employees of
forcing workers to sign cards; by threatening that it
would lay off employees who signed cards and close the
shop, and change its name and replace the workers; by
threatening employees that if they signed cards for the
Union or called it they would be fired,; by telling work-
ers that if they did not sign a card they would continue
to work; by threatening employees that Respondent
would close the shop if the Union came in or won the
election; by telling employees that if the union problem
continued Respondent BMD contemplated closing and
expanding operations at Suzan; by permitting a sign to be
posted that stated: "Please vote for BMD and save our
job. Thank You.", Respondent violated Section 8(a)(1) of
the Act.
10. The acts and conduct set forth in Conclusion of
Law 9, above, relating to threats to close the shop, con-
stitute objectionable conduct warranting the setting aside
of the representation election conducted on 21 June
1985.
11. Respondent has not violated the Act with respect
to the layoffs of Bertha Mejia and Arnalia Paredes; by
the assignment of Maria Garcia and Mercedes Paz to
lower-paying job tasks or that they were discriminated
against in violation of Section 8(a)(4) of the Act.
12. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent unlawfully laid off
Gloria Chunga, Carmen Lopez, Edilma Nunez, Maria
Garcia, and Mercedes Paz and constructively discharged
Maria Garcia and Mercedes Paz, I recommend that Re-
spondent be ordered to recall Chunga, Lopez, and
Nunez and reinstate Garcia and Paz and snake them
whole for any loss of earnings they may have suffered as
162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a result of the discrimination against them . The amount Isis Plumbing Co., 138 NLRB 716 (1967), as modified by
of backpay shall be computed in the manner set forth by Florida Steel Corp., 231 NLRB 651 (1971).
[Recommended Order omitted from publication.]