Columbia Textile Services, Inc

National Labor Relations Board - Board Decisions

May 15, 1989

293 N.L.R.B. 1034 (N.L.R.B. 1989)

1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Columbia Textile Services , Inc and Dyers Local
1733, a/w Amalgamated Clothing and Textile
Workers Union , AFL-CIO' and Cesar Diaz
Cases 22-CA-13089, 22-CA-13617, 22-RC-
9136, and 22-CA-13310
May 15, 1989
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On May 20, 1986, Administrative Law Judge
Howard Edelman issued the attached decision The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed limited exceptions
and a brief in reply to the Respondent 's 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,2 and
' The name of the Charging Party Union appears as set forth in the
complaint
2 The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
In agreeing with the judge s finding that the Respondent knew of An
tonio Pardo s support for the Union we do not rely on the judge s find
ing that there is a logical presumption that if Antonio Pardo s son was a
union supporter that the father was probably a supporter too Rather we
rely on the fact that Antonio Pardo was an active union supporter who
distributed union literature at the shop In light of the judge s finding that
the Respondent had designated spies specifically to determine who sup
ported the Union and that Antonio Pardo s discharge fit into the dis
cninmatory pattern set in motion by the Respondent we find that an in
ference that the Respondent was aware of Antonio Pardo s support for
the Union is warranted
We correct certain errors made by the judge The Respondent com
menced its operations in September 1983 not 1984 the Union began orga
nizmg the Respondents employees in December 1983 not 1984 and
Victor Castro a dyehouse employee was hired by Peter Costarelli in
July 1984 not July 1985 We also correct the spelling of the names of the
following cases that are cited in the judge s decision Jacobo Martz &
Sons Inc 264 NLRB 30 (1982) Stroehmann Bros Co 252 NLRB 988
(1980) enfd 659 F 2d 1071 (3d Cir 1981) (unpublished order) and St
Vincent s Hospital 223 NLRB 638 (1976) Additionally the correct spell
ing of the last names of two of the Respondents labor spies are Gil
and Burgos
The judge erroneously reported the citation to the Board s decision in
Wright Line 251 NLRB 1083 (1980)
8 We agree with the judges conclusion that the Respondents Decem
her 23 1983 interrogation of employee Cesar Diaz who was not an open
and active union supporter violated Sec 8(a)(1) of the Act One day
after the Respondent had received a letter announcing the organizing
campaign and had decided on a plan to defeat the Union by discharging
its supporters Diaz was interrogated as to his union support by the Re
spondent s top management official Sessa in the presence of two other
employees Shortly after the interrogation Diaz was informed by his su
pervisor that his prounion stance angered Sessa Therefore we conclude
that under the totality of the circumstances the interrogation of Diaz rea
sonably tended to restrain coerce or interfere with rights guaranteed by
the Act Rossmore House 269 NLRB 1176 ( 1984) enfd sub nom Hotel &
Restaurant Employees Local 11 v NLRB 760 F 2d 1006 (9th Cir 1985)
conclusions3 only to the extent consistent with this
Decision, Order, and Direction 4
1 The judge, rejecting the Respondent's 10(b)
defense, found under Ducane Heating Corp, 273
NLRB 1389 (1985), enfd 785 F 2d 304 (4th Cir
1986), that there was fraudulent concealment by
the Respondent that justified the refiling outside
the 10(b) period of previously withdrawn charge
allegations concerning the discharges of Rafael Yi
and Antonio Pardo The judge further found that
late-filed allegations concerning the discharge of
Manuel Chavez and 8(a)(1) violations by Jose
Velez were not time-barred because of the fraudu
lent concealment by the Respondent and also be
In adopting the judge s conclusion that the challenge to Joseph Nick
les ballot should be sustained we do not rely on his finding that Nickles
is a professional employee Rather we find that Nickles job duties work
area compensation work schedule licensed status and lack of interac
tion and interchange with other employees indicate that he does not
share a community of interest with the unit employees sufficient to war
rant his inclusion in the unit
4 In adopting the judge s conclusion that the challenge to a ballot con
taming a hole punched in the center of the square designating Local 1733
should be overruled Chairman Stephens and Member Cracraft agree
with the judge s finding that the voter clearly expressed an intent to vote
for Local 1733 The Board s longstanding policy has been to give effect
to voter intent whenever possible Hydra Conduit Corp 260 NLRB 1352
(1982) Thus in Horton Automatics 286 NLRB 1413 ( 1987) the Board
counted an irregularly marked ballot where that ballot despite the irreg
ulanty clearly expressed the employee s intent to vote against the union
The challenged ballot here contains an irregularity in that the voter ex
pressed his intent by punching a hole in the ballot rather than by making
a pencil or ink mark on the ballot However as that marking was made
in the square designating Local 1733 the Board finds that the ballot de
spite the irregularity clearly expressed the voter s intent to vote for the
Union and therefore will count the ballot
Member Johansen disagrees with his colleagues adoption of the
judge s finding that the challenge to a ballot with a hole punched in the
center of the square designating Local 1733 should be overruled Apply
ing the Board s analysis in Kaufman s Bakery 264 NLRB 225 (1982) the
judge found that in view of the marking in the center of the box and the
absence of any other mark or irregularity elsewhere on the ballot the
voter clearly expressed an intent to vote for the Petitioner Contrary to
his colleagues Member Johansen finds merit in the Respondents excep
tions to this finding
In overruling the challenges in Kaufman s Bakery the Board majority
held
In keeping with the Board s long established policy of attempting to
give effect to voter intent whenever possible we will hereafter
regard a mark in only one box despite some irregularity as pre
sumptively a clear indication of the intent of the voter When a
ballot reveals a clear X almost entirely contained within either the
Yes box or the No box and no irregular markings appear outside
the marked box there can be little doubt but that the voter intends
his vote to be counted in favor of or against respectively the desig
nated labor organization [264 NLRB at 225 ]
Unlike the written marks in Kaufman s Bakery however the hole
made by the voter in this case does not in Member Johansen s view re
flect substantial compliance with the ballot instructions Rather the hole
which is arguably not even in the center of the square is highly irregular
and does not indicate voter intent with any reasonable certainty (See
also Member Johansen s dissent with former Member Babson in Horton
Automatics above at 1414 in which they found that the ambiguity of the
markings- NON or NOW across both the yes si and no no
boxes of the ballot- made it impossible to determine the clear intent of
the voter and therefore the ballot had to be considered void) Accord
ingly as the hole is not a mark within the meaning of Kaufman s
Bakery Member Johansen concludes that Kay/man s presumption of
voter intent does not apply and therefore that the challenge to the ballot
should be sustained
293 NLRB No 127
COLUMBIA TEXTILE SERVICES 1035
cause they were "closely related" to outstanding
complaint allegations pursuant to NLRB v Dinion
Coil Co, 201 F 2d 484, 491 (2d Cir 1952) We
agree with the judge's findings that the above alle
gations are not time-barred, but we do so only for
the reasons set forth below
The relevant facts, as more fully set forth by the
judge, are as follows Yi was discharged on Febru
ary 11, 1984, Pardo was discharged on February
20, 1984, and the last date of employment for
Chavez was February 25, 1984 On March 2, 1984,
the Union filed a timely charge in Case 22-CA-
13089 alleging certain 8(a)(1) violations, as well as
the discriminatory discharges from January 3 to
February 20, 1984, of nine named employees, in-
cluding Yi and Pardo, but not including Chavez 5
The General Counsel issued a complaint on April
30, 1984, alleging , inter alia, that Yi and Pardo
were denied overtime and that Yi, Pardo, and
Chavez were transferred to a newly created third
shift 6 The only employee alleged in the complaint
to be discriminatorily discharged, however, was
Elisardo Pardo That same day, the charge allega-
tions concerning the discharges of Antonio Pardo
and Yi were withdrawn
On September 6 and 14, 1984, more than 6
months after the discharges occurred, the Union
amended the charge in Case 22-CA-13089 to
allege the discriminatory discharge of additional
employees including Yi and Chavez The second
amended complaint,7 issued on December 21, 1984,
alleges in pertinent part that Yi and Chavez were
discriminatonly discharged, that Jose Velez was an
agent of the Respondent, and that on various occa-
sions between December 1983 and February 1984,
Velez interrogated employees to ascertain their
union membership and sympathies and threatened
the employees with plant closure if the Union
5 Specifically the initial charge alleges
Since on or about December 14 1983 the above named Employer
through its officers agents and representatives has interfered with
restrained and coerced and is interfering with restraining and coerc
mg employees of Columbia Textile Services by threatening to
close the plant if Amalgamated Clothing and Textile Workers Union
AFL-CIO were selected as collective bargaining representative of
its employees
On or about January 3 1984 the above named Employer through
its officers agents and representatives discharged Luis Felix and
Cesar Diaz on or about January 19 1984 it discharged Elisardo
Pardo on or about February 3 1984 it discharged Rafael Yi on or
about February 11 1984 it discharged Pablo Rivera Valentin on or
about February 16 1984 it discharged Roberto Almonte Rafael
Diaz and Luis Martinez and on or about February 20 1984 it dis
charged Antonio Pardo all employees of Columbia Textile Services
because of their membership and activities on behalf of Amalgamat
ed Clothing and Textile Workers Union of America a labor orgam
zation
The complaint further alleges that the Respondent acting through
John Sessa asked an employee to ascertain and divulge the identity of
the employee who brought in the Union
° The first amended complaint issued on August 17 1984 alleges the
unlawful discharge of Cesar Diaz (Case 22-CA-13310)
became their collective-bargaining representative
The complaint was later amended on February 11,
1985, during the hearing, to allege the unlawful dis-
charge of Pardo 8
As indicated, the judge relied on NLRB v
Dinion Coil, above, for the rules regarding the req-
uisite relationship between the timeliness and sub-
ject matter of a proposed complaint amendment 9
Under Dinion Coil, the issue here is whether the
untimely complaint allegations concerning the dis-
charges of Yi, Pardo, and Chavez are "closely re-
lated" to the allegations of the original timely filed
charge and therefore not time-barred
In its recent decision in Redd-I Inc, 290 NLRB
1115 (1988), the Board held that it would apply the
traditional "closely related" test to determine
whether an otherwise untimely allegation is factual-
ly and legally related to the allegations of a timely
charge, without regard to whether another charge
encompassing the untimely allegation had been
withdrawn or dismissed Id at 1116 See also
Heaven, 290 NLRB 1223, 1224 (1988) Discussing
its application of the "closely related" test, the
Board in Redd-I stated
First, we shall look at whether the otherwise
untimely allegations are of the same class as
the violations alleged in the pending timely
charge This means that the allegations must
all involve the same legal theory and usually
the same section of the Act (e g , 8(a)(3) re-
prisals against union activity) Second, we
shall look at whether the otherwise untimely
allegations arise from the same factual situation
or sequence of events as the allegations in the
pending timely charge This means that the al-
legations must involve similar conduct, usually
during the same time period with a similar
object (e g , terminations during the same few
months directed at stopping the same union or-
ganizing campaign) Finally, we may look at
whether a respondent would raise the same or
similar defenses to both allegations, and thus
whether a reasonable respondent would have
preserved similar evidence and prepared a
8 The complaint had also been amended on January 14 1985 to allege
the unlawful discharge of Sergio Aponte the November 1984 unlawful
discharge of five dyehouse employees and the unlawful solicitation of
authorization cards for Local 560 International Brotherhood of Team
stern Chauffeurs Warehousemen and Helpers of America AFL-CIO
8 The Dinion Coil rules are as follows
(1) A complaint as distinguished from a charge need not be filed
and served within the six months and may therefore be amended
after the six months (2) If a charge was filed and served within six
months after the violations alleged in the charge the complaint (or
amended complaint) although filed after the six months may allege
violations not alleged in the charge if (a) they are closely related to
the violations named in the charge and (b) occurred within six
months before the violations named in the charge [201 F 2d at 491 ]
1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
similar case in defending against the otherwise
untimely allegations as it would in defending
against the allegations in the timely pending
charge [290 NLRB 1118 ]
In Redd-I and in Heaven, the Board was unable
to determine from the record whether the untimely
allegations were closely related to the allegations
of a timely filed charge 10 The Board therefore re
manded those proceedings to allow litigation on
the merits and on the "closely related" issue 11
On the other hand, the Board in Davis Electrical
Constructors, 291 NLRB 115 (1988), agreed with
the judge's finding, based on the evidence present
ed at the hearing, that the untimely allegation con-
cerning employee Rickard's March 1981 layoff was
closely related to the allegations of a timely charge
concerning another employee's March 1981 layoff,
and was therefore not time-barred In this regard,
the Board found that both layoff allegations arose
from the same or a similar factual situation or se-
quence of events based on evidence that the layoffs
occurred on the same day, at the same construction
site, during the same reduction in force, and under
the approval of the overall supervisor who had or-
dered the reduction Further, the Board in Davis
held that in determining whether allegations are
closely related it "would certainly not rely on a re-
spondent's proffered reasons where, as here, a
judge has already rejected them as pretextual after
hearing all the evidence " Davis, at fn 9 12
In the instant case, the General Counsel amended
the complaint outside the 10(b) period to allege the
unlawful discharges of Yi, Pardo, and Chavez
Therefore, pursuant to Redd-I, above, it is neces-
sary to determine whether the late filed allegation
concerning Chavez as well as the previously with-
drawn allegations concerning Yi and Pardo are
"closely related" to the timely filed charge against
the Respondent
The discharges of Yi, Pardo, and Chavez all oc-
curred within 6 months before the filing of the
timely charge on March 2, 1984, alleging various
10 In Redd I the General Counsel had excepted to the judges refusal
to add to the complaint a previously withdrawn allegation outside the
10(b) period in denying the motion to amend the judge refused to
accept evidence pertaining to the untimely allegation In Heaven the Re
gional Director referred to the Board the respondents Motion for Partial
Summary Judgment alleging that previously dismissed charges had been
improperly reinstated
i i The specific question presented in Redd I was whether the untimely
complaint allegation concerning employee Kelley s discharge was closely
related to the other discharge and layoff allegations in the timely charge
In remanding the Board noted that there was no evidence concerning
inter alia the circumstances surrounding Kelley s discharge the respond
ent s knowledge of Kelley s union activities or any asserted justification
for Kelley s discharge
12 The Board also found that the allegation concerning Rickard s
March 1981 layoff was closely related to previous unlawful conduct
against Rickard which was alleged in a timely charge in a consolidated
case
8(a)(1) violations as well as unlawful discharges
Applying the guidelines set forth in Redd-I, above,
to the "closely related" issue here, it is clear that
the untimely complaint allegations concerning the
discharges of Yi, Pardo, and Chavez, as well as the
discharge allegations in the timely charge, are all
based on the theory of the Respondent's discrimi-
natory treatment of prounion employees and in-
volve Section 8(a)(3) of the Act 13
Second, as in Davis Electrical Constructors, above,
the untimely allegations in this case have been liti
gated on their merits and, therefore, there is record
evidence concerning the factual circumstances sur-
rounding the discharges of Yi, Pardo, and Chavez
Regarding each instance of alleged discriminatory
conduct in this case, the judge relied on the cred-
ited testimony of former Dyehouse Supervisor
Costarelli to establish the Respondent's unlawful
motivation In this regard, Costarelli testified that
Sessa, the Respondent's top management official,
used employees as "labor spies" to identify proun-
ion employees and formulated a plan to discharge
prounion employees in order to defeat the Union
According to Costarelli, pursuant to the plan em-
ployees would be denied overtime and/or assigned
to a newly created midnight shift to force them to
quit, if they did not do so, they would be dis-
charged on a pretextual basis Based on this testi-
mony, the judge found that the formation of the
third shift was discriminatorily motivated
Examining the circumstances of the untimely dis-
charge allegations here, including Costarelli's testi
mony about the plan, we find that the discharges of
Yi, Pardo, and Chavez occurred during the same
period as the discharges alleged in the timely
charge Further, the Respondent's conduct toward
these three discriminatees-like its conduct toward
the other discriminatees named in the timely
charge whose causes of action survived and about
which there is relevant information-is consistent
with Costarelli's testimony regarding the Respond-
ent's three tiered plan to eliminate prounion em
ployees Thus, there is evidence that Sessa either
knew or believed that Yi, Pardo, and Chavez were
13 The Board has applied the closely related test to both proposed
charge amendments Kelly Goodwin Hardwood Co 269 NLRB 33 (1984)
and proposed complaint amendments R J Causey Construction Co 241
NLRB 1096 (1979) Although our analysis focuses on the relationship be
tween the untimely complaint allegations and the allegations in the timely
charge the closely related test would also apply to the September 1984
charge amendments alleging the discriminatory discharges of Yi and
Chavez
We find that the September 1984 charge amendments relate back to
the original timely charge because the matters alleged in the amended
charges are similar to and arise out of the same course of conduct as
those alleged in the timely filed charge Amended charges containing
such allegations if filed outside the 6 month 10(b) period are deemed for
10(b) purposes to relate back to the original charge Kelly Goodwin
Hardwood Co id at 36-37
COLUMBIA TEXTILE SERVICES 1037
union supporters Subsequent to the Respondent's
attaining this knowledge, Yi and Pardo were discri
minatorily denied overtime, transferred to the third
shift, and finally discharged Chavez was also un
lawfully denied overtime and was later transferred
to the third shift, which the judge found constitut
ed a constructive discharge
Under these circumstances, and relying particu-
larly on the Respondent's plan to defeat the Union,
we find that all the discharge allegations involved
similar conduct during the same time period with a
similar object, as required under Redd-I, above
Regarding the final element of the Redd-I analy-
sis, we note that the Respondent presented differ
ent reasons for selecting each employee to be dis-
charged, and contended that Chavez was trans-
ferred to the third shift because of his experience
In view of the judge's rejection of the Respond-
ent's proffered reasons as pretextual, however, we
do not rely on these reasons in deciding whether
the allegations in this case are closely related See
Davis Electrical Constructors, above, at fn 9
Accordingly, we find that the complaint allega-
tions concerning the discharges of Yi, Pardo, and
Chavez are closely related to the allegations in the
timely charge and, therefore, are not time-barred 14
Finally, regarding the 8(a)(1) interrogations and
threats by the Respondent's agent, Velez, we agree
with the judge's finding that these allegations are
not time barred because we find that these late
14 In view of our finding that these allegations are closely related to a
timely charge we find it unnecessary to rely on the judge s fraudulent
concealment analysis
Although Chairman Stephens does not dispute that the complaint alle
gations concerning the discharges of Yi Pardo and Chavez are closely
related to the allegations in the timely charge in accord with the views
expressed in his dissenting opinion in Redd I above he would neverthe
less find the complaint allegations regarding the discharges of Yi and
Pardo to be barred by Sec 10(b) of the Act In his opinion even though
the closely related doctrine would permit consideration of the dis
charges of these two employees the sequence of charge filings and with
drawals here is such that the Respondent would not reasonably have be
lieved at the expiration of the 10(b) period that it might have to litigate
allegations pertaining to Yi and Pardo s discharges
The first unfair labor practice charge filed on March 2 1984 timely
alleged that Yi and Pardo were discrimmatonly discharged The General
Counsel issued a complaint on April 30 1984 which alleged that Yi and
Pardo were unlawfully denied overtime but did not allege that they
were unlawfully discharged That same day the charge allegations con
cerning the discharges of Yi and Pardo were withdrawn Thus when the
10(b) period had run on the Yi and Pardo discharges the Respondent
knew that the Regional Director had considered and rejected claims that
the Respondent had unlawfully discharged Yi and Pardo and it would
not reasonably have contemplated litigating those matters
With regard to the discharge of Chavez the original complaint alleged
that Chavez was unlawfully transferred to a newly created third shift but
did not allege that Chavez was unlawfully discharged On September 6
1984 after the 10(b) period had run the charge was amended to include
his discharge and on December 21 1984 a second amended complaint
issued alleging in pertinent part that Chavez was discriminatorily dis
charged Under these circumstances as there was no dismissal or with
drawal of a charge relating to the alleged unlawful discharge of Chavez
the concerns addressed in the Chairman s Redd I dissent are not relevant
here
filed allegations are closely related to the allega-
tions in the timely charge of March 2, 1984 In this
regard, the charge alleges threats of plant closure
by the Respondent's "officers, agents, and repre-
sentatives," as well as alleged discriminatory acts
to which the alleged threats and interrogations are
factually and legally related
2 The judge found that Denise Collora and
Frances DePraspo are office clerical employees,
and therefore concluded that the Union's chal-
lenges to their ballots in Case 22-RC-9136 should
be sustained In reaching this conclusion , the judge
found that Collora and DePraspo have separate
work locations in an enclosed office, are commonly
supervised by the office clerical supervisor, exer-
cise inherent clerical functions, have minimal con-
tact with the production area and production em
ployees, and have a separate eating area The Re
spondent excepts to the judge's finding that they
are office clericals In particular, the Respondent
takes issue with the judge's conclusion that Collora
and DePraspo have only minimal contact with the
production employees We find merit in the Re-
spondent's exception 15
In Hamilton Halter Co, 270 NLRB 331 (1984),
the Board found that employees who shared char
acteristics of both office and plant clericals, but
whose tasks were related to the production proc
ess, were more closely akin to plant clericals Thus,
the Board noted that although the employees
worked in an enclosed office space, their primary
responsibility was the transcription of sales orders
to facilitate production In addition, the clericals
performed other duties typical of plant workers
they maintained inventories, ordered supplies, col
lected timecards, occasionally unloaded trucks, and
were involved in product design and labeling
In the instant case, the record indicates that, like
the employees in Hamilton Halter, above, Collora
and DePraspo perform duties that are functionally
integrated with the production process Further,
contrary to the judge, we find that each employee
has more than minimal contact with production
employees
Collora testified that she works part of the time
in the office and part of the time "out back " Six to
ten times per day she walks to the finishing room
to get samples and labels, which she assembles for
distribution to customers She also types dye orders
that come in with the samples In addition, a major
portion of Collora's duties consist of typing bills of
lading and providing the employees in the packing
15 In agreement with the judge s decision Member Cracraft would
find employees Collora and DePraspo to be office clericals and therefore
excluded from the unit
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
department with instructions as to what will go in
each carton and how much each should weigh
Similarly, DePraspo 's testimony indicates that
her duties are related to the production function,
that she works closely with other employees in the
plant , and that she does not spend the entire day in
the office DePraspo is primarily an order proces
sor she prepares the initial order, checks with pro-
duction to determine if it is too late for customers
to change their orders , and checks with the finish-
ing department when customers inquire as to the
status of their orders DePraspo also receives and
makes entries on the freight bills Further , although
she referred to the office clerical supervisor as her
supervisor , DePraspo also stated that Joseph Naz
zaro , the plant superintendent , is her boss and that
her job -related questions are directed to Nazzaro,
the dyers , and others in the plant
Based on these factors , we find that Collora and
DePraspo are plant clericals and are therefore in-
cluded in the bargaining unit of production and
maintenance employees Accordingly , we shall
direct that their ballots be opened and counted
3 The General Counsel also excepts to the
judge's failure to include in the notice the names of
the employees to be reinstated and made whole for
lost earnings The judge simply referred in his rec-
ommended Order and notice to the employees set
forth in paragraphs 11 and 13 of his Conclusions of
Law We find ment in the General Counsel's ex-
ception, and shall modify the Order and issue a
new notice to conform to the Board's customary
practice of naming the discriminatees
4 The General Counsel contends that the judge
erred by failing to order the opening and counting
of the overruled challenged ballots The General
Counsel also maintains that the judge erred by fail-
ing to provide that if the Union does not obtain a
majority , then the election should be set aside on
the basis of the Respondent 's unfair labor practices
We find meet in the General Counsel 's exceptions
The Union is the only party that filed objections to
the election Further , the conduct encompassed by
the objections was directed solely against the
Union , and not against the other labor organization
that participated in the election Accordingly, we
shall direct the Regional Director to open and
count the ballots , and to issue a Certification of
Representative should the Union receive a majority
of the valid votes cast If the Union does not re-
ceive a majority of the valid votes cast, the Re
gional Director shall set aside the election and con
duct a second election
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
13
"13 By discriminatorily discharging Cesar Diaz,
Elisardo Pardo , Rafael Yi, Antonio Pardo , Manuel
Chavez, Ramon Tavares , Rafael Tavares , Francis-
co Mauro , Victor Castro , and Juan Valero , the Re-
spondent violated Section 8(a)(1) and (3) of the
Act "
AMENDED REMEDY
Substitute the following for the fourth paragraph
of the judge 's remedy
"Backpay for the above employees shall be com-
puted in accordance with the formula approved in
F W Woolworth Co, 90 NLRB 289 (1950) Inter-
est on and after January 1, 1987 , shall be computed
at the "short term Federal rate" for the underpay
ment of taxes as set out in the 1986 amendment to
26 U S C § 6621 in accordance with New Horizons
for the Retarded, 283 NLRB 1173 ( 1987) Interest
on amounts accrued prior to January 1 , 1987 (the
effective date of the 1986 amendment to 26 U S C
§ 6621), shall be computed as set forth in Florida
Steel Corp , 231 NLRB 651 (1977) "
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent, Columbia Textile Services , Inc, Pater-
son, New Jersey, its officers , agents, successors,
and assigns , shall take the action set forth in the
Order as modified
1 Substitute the following for paragraph 2(a)
"(a) Offer to Cesar Diaz , Elisardo Pardo , Rafael
Yi, Antonio Pardo , Manuel Chavez , Ramon Ta-
vares , Rafael Tavares, Francisco Mauro , Victor
Castro , and Juan Valero full and immediate rein-
statement to their former positions or, if those jobs
no longer exist , to substantially equivalent posi-
tions , without prejudice to their seniority or other
rights and privileges previously enjoyed "
2 Substitute the following for paragraph 2(b)
"(b) Make whole Antonio Pardo, Manuel
Chavez, Rafael Diaz , Rafael Yi, Elisardo Pardo,
Sergio Aponte , Cesar Diaz, Ramon Tavares, Rafael
Tavares , Francisco Mauro, Victor Castro , and Juan
Valero for any loss of earnings they may have suf-
fered by reason of the discrimination against them
in the manner set forth in the remedy section of the
judge 's decision , as amended "
3 Substitute the attached notice for that of the
administrative law judge
COLUMBIA TEXTILE SERVICES
DIRECTION
It is directed that the Regional Director for
Region 22 shall, within 10 days from the date of
this decision , open and count the ballots cast by
Denise Collora, Frances DePraspo, Jose Rodri-
guez , Rafael Yi, and Elisardo Pardo in Case 22-
RC-9136, and count the "irregularly " marked
ballot as a valid "Yes" vote for Dyers Local 1733
a/w Amalgamated Clothing and Textile Workers
Union, AFL-CIO Thereafter, the Regional Direc
tor shall prepare and serve on the parties a revised
tally of ballots If the revised tally reveals that
Local 1733 has received a majority of the valid
ballots cast, the Regional Director shall issue a
Certification of Representative However, if the re-
vised tally shows that Local 1733 has not received
a majority of the valid ballots cast , the Regional
Director shall set aside the election results and con
duct a second election
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 interrogate our employees con-
cerning their membership in or activities on behalf
of Dyers Local 1733, a/w Amalgamated Clothing
and Textile Workers Union , AFL-CIO or any
other labor organization
WE WILL NOT threaten our employees to close
the shop if Local 1733 or any other labor organiza-
tion is selected as the collective-bargaining repre-
sentative of our employees
WE WILL NOT threaten to discontinue overtime
normally worked if Local 1733 or any other labor
organization is selected as the collective-bargaining
representative of our employees
WE WILL NOT promise our employees improved
benefits in their working conditions to coerce them
from selecting Local 1733 or any other labor orga-
nization as their collective-bargaining representa-
tive
WE WILL NOT grant our employees raises and
bonuses to coerce them from selecting Local 1733
or any other labor organization as their collective
bargaining representative
WE WILL NOT engage in surveillance of our em
ployees' activities on behalf of Local 1733 or any
other labor organization
1039
WE WILL NOT coercively force and require our
employees to join Local 560, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, AFL-CIO or any other labor
organization
WE WILL NOT reduce the normal overtime of
our employees because of their membership in or
activities on behalf of Local 1733 or any other
labor organization
WE WILL NOT change the work shift of our em
ployees because of their membership in or activities
on behalf of Local 1733 or any other labor ofgani-
zation
WE WILL NOT discharge and thereafter refuse to
reinstate our employees because of their member
ship in or activities on behalf of Local 1733 or any
other labor organization
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 to Cesar Diaz, Elisardo Pardo,
Rafael Yi, Antonio Pardo, Manuel Chavez, Ramon
Tavares, Rafael Tavares, Francisco Mauro, Victor
Castro , and Juan Valero full and immediate rein-
statement to their former positions or, if such jobs
no longer exist , to substantially equivalent positions
of employment, without prejudice to their seniority
or other rights and privileges previously enjoyed,
and WE WILL make them whole for any loss of
earnings they may have suffered by reason of their
discriminatory discharge , with interest
WE WILL make whole Antonio Pardo , Manuel
Chavez, Rafael Diaz, Rafael Yi, Elisardo Pardo,
and Sergio Aponte for any loss of earnings they
may have suffered by reason of their discriminato
ry reduction of overtime , with interest
COLUMBIA TEXTILE SERVICES, INC
William F Grant and Thomas R Gibbons Esqs, for the
General Counsel
David F Jasinski Esq (Grotta Glassman & Hoffman), for
the Respondent
Paul A Montalbano Esq (Schneider Cohen & Solomon)
for Local 560, International Brotherhood of Team
sters
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN , Administrative Law Judge This
case was tried before me on January 14, 16, 17-18 Feb
ruary 11 -13, 15, 19 21-22 and 26 , and March 1 1985, in
Newark, New Jersey
On March 2 , 1984 a charge Case 22-CA- 13089 was
filed by Dyers Local 1733 a/w Amalgamated Clothing
1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and Textile Workers Union , AFL-CIO (Local 1733 or
the Union) alleging that Columbia Textile Services, Inc
(Respondent), violated Section 8(a)(1) and (3) On April
30 1984 the Regional Director for Region 22 issued a
complaint against Respondent alleging that it violated
Section 8 (a)(1) and (3) of the Act by various threats
promises of benefit interrogation , the elimination of
overtime transfers of employees to different workshifts
and a discriminatory discharge On June 26 1984 this
complaint was consolidated with objections and chal
lenges, which resulted from the underlying representa
tion case (Case 22-RC-9136)
On June 21, 1984 , Cesar Diaz , an employee , filed a
charge, Case 22-CA- 13310 alleging that he was dis
charged in violation of Section 8(a)(3) On August 17,
1984, an amended complaint issued
On September 6, 1984 Local 1733 amended its charge
in Case 22-CA- 13089 to allege the unlawful discharge of
Manuel Chavez It was again amended on September 14,
1984 to allege the unlawful discharge of Rafael Yi and
others On December 21 1984 a second amended com
plaint issued , adding , inter alia , an agency allegation con
cerning Jose Velez and Modesto Burgas and expanding
the existing 8(a)(3) allegations concerning Chavez and Yi
to include their discharges On January 2, 1985, the
Union filed a charge, Case 22-CA- 13617, alleging the
unlawful discharge of Sergio Aponte On January 14,
1985 at the commencement of the trial the complaint
was amended to include , inter alia , the discharge of
Sergio Aponte and an 8 (a)(1) allegation concerning the
unlawful solicitation of Local 560 , International Brother
hood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America (Local 560) authorization cards, and
the November 1984 unlawful discharge of five other em
ployees
Briefs were filed by counsel for the General Counsel
and by counsel for Respondent On my consideration of
the entire record the briefs and my observation of the
demeanor of witnesses I make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Respondent is a New Jersey corporation engaged in
the textile business Its operation consists essentially of
dying and the wholesale sale and distribution of textiles
It is admitted that Respondent meets the Board s nonre
tail standard and is an employer engaged in commerce
within the meaning of Section 2(2) (6) and (7) of the
Act
It is further admitted that the Union is a labor orgam
zation within the meaning of Section 2(5) of the Act
Respondent s Operation
Respondent operates a single facility in Paterson, New
Jersey It commenced this operation in September 1984
It took over the operation of a corporation called Chris
topher Dying and Finishing which declared bankruptcy
and closed in June 1983 Many of the employees of
Christopher including some of Christopher s high level
management, came over to Respondent upon commence
ment of its operations in September 1983
The credible evidence establishes that Christopher was
run, if not owned, by John Sessa Although there is no
evidence to establish that Sessa owned either in full or in
part Respondent, it is clear beyond any doubt that he ran
Respondents operation He was the boss and his word
was law According to Respondents books, Sessa re
ceived no regular salary He did receive a total of $7000
for his services to Respondent in 1984 It is not clear
who owned Respondent, but it is clear that the owner
ship did not run the operation This was done through
Sessa and other high level supervisors, who were under
the direction of Sessa
Respondent denied that Sessa ran the operation or that
Sessa was employed by Respondent in a supervisory ca
pacity However, Respondent admitted Sessa was an
agent of Respondent within the meaning of Section 2(13)
of the Act
Peter Costarelli, Respondents head dyer and its high
est paid supervisor at a salary of $750 per week credibly
testified' that Sessa was in total charge of the operation
and that Sessa personally hired most of the supervisors
and production employees and fired employees when
necessary Costarelli testified that it was Sessa who made
the major operational decisions and assigned supervisors
and rank and file employees to carry them out
During the investigation of this unfair labor practice
case, it was Sessa who represented Respondent Similar
ly, in the instant representation proceeding it was Sessa
who represented Respondent
Accordingly, I find that Sessa was the top manage
ment official, with the responsibility of running the entire
production operation, and a supervisor within the mean
ing of Section 2(11) of the Act
Under Sessa were Peter Costarelli the dye house su
pervisor, and Joseph Nazzaro who was in charge of the
grey room where the undyed goods were processed
and the finishing department Nazzaro like Costarelli, re
ceived a salary of $750 per week
Under Costarelli and Nazzaro were various shift su
pervisors 2
The production force consisted of approximately 80
employees working in two and sometimes three shifts
From Respondent's inception until the Union com
menced its organization campaign in December 1984
Respondents production employees were not represent
ed by any labor organization The employees of Christo
I Costarelli s credibility is assailed by Respondent I find Costarelli to
be a totally credible witness I was very impressed by his demeanor His
answers to all questions put to him on both direct and cross examination
were forthright and detailed notwithstanding his tendency at times to
ramble Most importantly his testimony which consisted in a large part
of very damaging admissions against Respondent was consistently cor
roborated by other credible witnesses and by Respondents business
records I make this credibility resolution notwithstanding certain signifi
cant contradictions in his investigatory Board affidavit He testified that
these inconsistencies reflected Respondent s coverup of its unlawful union
activities He also testified that his untruthful statements in his affidavit
were the result of prompting by Sessa However since the investigation
he had voluntarily left Respondent s employ and now wanted to come
clean and tell the truth I am absolutely convinced that he was telling the
truth when he testified before me His testimony was unshakable not
withstanding intense cross examination by Respondents counsel
8 The status of some of these supervisors is in dispute and will be dis
cussed below
COLUMBIA TEXTILE SERVICES 1041
pher, many of whom were retained by Respondent, were
represented by Local 560 which had a collective bar
gaining agreement with Christopher
The Union Campaign and Respondents Response
During the month of December 1984 the Union met
with interested employees and obtained a number of
signed authorization cards and considerable support
among Respondent 's production employees
Respondents first knowledge of the Unions activities
came on December 22, 1983 , when the Union sent Re
spondent a letter notifying them of this organizing cam
paign The letter set forth the names of a five member
organizing committee which included Elisardo Pardo, an
employee alleged to have been discharged in violation of
Section 8(a)(3)
Costarelli credibly testified without contradiction that,
following the receipt of this letter he met on a daily
basis with Sessa , who decided on a campaign to keep out
the Union which included the use of employee spies to
find out who was active in the Union, and to convey
threats and promises of benefit to employees It was also
decided that strong union supporters would be dis
charged Costarelli pointed out to Sessa that you had to
have some excuse to fire an employee and it was decided
that they would cut the overtime of employees they
wanted to lean on or get rid of because of their union
activities , in order to reduce their income so that they
would either renounce their union support or quit If this
was unsuccessful , they would initiate a third or midnight
shift and assign union advocates to this shift as a means
of coercion or to force them to quit If that was unsuc
cessful they would then seize upon some reason like
lateness or a job mistake and discharge the employee os
tensibly for that reason
As set forth above, I credit Costarelli s testimony As a
high level supervisor his testimony constitutes an admis
sion against Respondent which is entitled to considerable
weight Mannington Electric, 200 NLRB 970, 972 (1972)
Moreover , Sessa , who was admittedly available failed to
testify at any time during the course of the trial Under
these circumstances an inference is drawn that had he
testified, his testimony would have corroborated that of
Costarelli and would have been adverse to Respondent
Interstate Circuit v United States, 206 U S 208 (1934)
American Chain Link Fence Co 255 NLRB 692, 693 fn
4 (1981)
Costarelli credibly testified that the first step taken by
Sessa was to enlist certain employees as spies to find out
who the union supporters were Sessa enlisted Jose
Velez, Luis Gonzales, Modesto Burgas, Joaquim Gon
zales and Felix Gill as Respondents spies Costarelli fur
ther testified that to insure their loyalty Sessa gave them
each a $50 bonus and raises ranging from 50 cents to a
dollar an hour Costarelli s testimony is corroborated by
Respondents payroll records The above employees
except for Gill, testified they individually without any
knowledge of other employee requests , requested such
raises Gill admitted he received his raise so he would
vote no in the Board conducted representation elec
tion Supervisor Joseph Nazzaro testified that the em
ployees were given raises because they requested them
In view of the admissions of Costarelli the testimony of
Gill, corroborated by Respondents payroll records, con
trasted by the incredible and unbelievable testimony of
Nazzaro and the employees who received such raises,
that they each just happened to request and receive such
raises shortly after the Union began its campaign I find
that these employees were enlisted by Sessa and paid off
by Respondent to act as labor spies to infiltrate among
the employees and let Respondent know who were the
union supporters so that Respondent would be able to
take appropriate action
I find that by recruiting these employees to spy on the
union activities of Respondents employees , Respondent
engaged in surveillance in violation of Section 8(a)(1)
Excelsior Laundry Co, 186 NLRB 914 915 (1970) May
wood Inc 251 NLRB 979, 982-983 (1980) United Oil
Mfg Co, 254 NLRB 1320 (1981)
I also find that by the payment of bonuses and grant
ing of raises to these employees for their spy activities,
Respondent unlawfully granted benefits in violation of
Section 8(a)(1) Pine Valley Meats, 255 NLRB 402 409
(1981)
I also find that by their mutual fabrication as to the
reason for the raises, the credibility of Nazzaro and the
above employees is seriously diminished
Shortly after the Union's December 22 letter and after
the Union had filed a petition for an election , Sessa as
sembled the second shift employees and spoke to them
The meeting was devoted to speaking about the Union s
campaign During the course of this meeting Sessa told
the employees that if the Union won the election he
would close the plant I find such threat to be a clear
violation of Section 8(a)(1)
At the conclusion of the meeting Sessa passed Rafael
Payamps an employee listed on the Union s December
22 letter as a member of the organizing committee He
asked Payamps if he was in favor of the Union and
Payamps responded that he was Sessa then told him if
the Union won the election he would close the shop
Sessa repeated this threat to Payamps several times
thereafter 3
In Rossmore House, 269 NLRB 1176 (1984), the Board
restated the test for evaluating whether interrogations
violate the Act as follows Whether under all circum
stances the interrogation reasonably tends to restrain
coerce or interfere with rights guaranteed by the Act
Supra at 1181 In Rossmore House the Board found that
interrogations of an open and active union adherent
were not coercive and not a violation of the Act where
the employers inquiries were limited to that individual
employees involvement with and sentiments for the
union , and the interrogations were not accompanied by
threats or promises In this case , although Payamps was
an open and active union supporter , the interrogation
was followed by a threat to close the shop Moreover,
throughout the course of this campaign Sessa embarked
on a systematic series of unfair labor practices described
above and below which included other interrogations,
threats promises , and granting of benefits, and discrimi
3 As set forth above Sessa did not testify although he was available
1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
natory denial of overtime shift changes and discharges
Therefore, I conclude that under all these circumstances
this and other interrogations, described below, would
tend to coerce and restrain employees in connection with
their union activities Accordingly, I find Sessa s interro
gation of Payamps to be violative of Section 8(a)(1)
Needless to say I find his threat to close the shop also
violative of Section 8(a)(1)
Some time in the latter part of December, after Re
spondent had paid Velez to be a labor spy Cesar Diaz, a
production employee, credibly testified that he saw
Velez in the office where the timecards were located
Velez was making a written list of names from the time
cards Diaz asked him why he was doing this Velez re
plied he was making a list of employees who wanted the
Union for John Sessa He then told Diaz that if the
Union came in Sessa would close the plant
Velez denied making such list He also denied the con
versation with Diaz He denied he ever spoke to any em
ployee or management official including Costarelli or
Sessa, or that they ever spoke to him about the Union
I credit the testimony of Diaz I was favorably im
pressed with his demeanor He testified in a direct and
forthright manner and answered all questions put to him
on both direct and cross examination in a candid manner
and in detail
I do not credit Velez testimony except that which
would constitute an admission against Respondent His
demeanor was most unimpressive He was so intent on
denying any conversations with employees concerning
the Union or any conversations with John Sessa Costar
ells or other management officials, that he often an
swered questions put to him by Respondents counsel
the General Counsel, and myself in the negative before
the question was fully put to him He was continuously
admonished to permit counsel to complete their ques
tions before answering Additionally, he was extremely
evasive vague and hostile during cross examination To
credit his testimony that he never spoke to any employee
or management official concerning the Union, I would
have to discredit virtually every General Counsel wit
ness including Costarelli, who were mutually corrobora
tive in their testimony that Velez did speak to the em
ployees both individually and in groups, make a list of
employees who were prounion and report the results of
such unlawful interrogation and surveillance to Costarelli
and Sessa Velez is, to put it very charitably not a truth
ful witness and entirely unworthy of belief
I have already found that Velez Luis Gonzales Mo
desto Burgas Joaquim Gonzales and Felix Gil were
paid by Respondent in order to interrogate employees
and otherwise spy on their activities to determine which
employees were union supporters and to report their
findings to Respondent, Sessa in particular Under these
circumstances alone I find that Velez was an agent of
Respondent Jacobo Marti & Sons Inc, 264 NLRB 30, 33
fn 1, (1982) Moreover as will be discussed below
Velez held a meeting of employees in Sessa s presence
where he made various unlawful statements Further,
throughout the entire record it is clear that the employ
ees recognized that Velez was, in particular, Sessa s right
hand man, his special agent among the employees, to
find out and report back who was active and to dissuade
by threats or promises, employees from supporting the
Union
Accordingly I conclude that Velez admission to Diaz
that he was making a list for Sessa, as to which employ
ees were supporting the Union and reporting back con
stitutes unlawful surveillance in violation of Section
8(a)(1) and his statement concerning Sessa closing the
plant is an unlawful threat in violation of Section 8(a)(1)
Some time around the end of December 1983 or the
beginning of January 1984 Costarelli met with Sessa and
suggested that they bring in Local 560 who had repre
sented the production employees at Christopher and
deal with them rather than the Union Sessa agreed and
contacted Local 560 He made arrangements for them to
come to the plant to sign up employees Ed Nicolicchta,
a watchman employed by Respondent, testified that on
or about January 13, before the representatives of Local
560 arrived, Sessa told him they were expected and
when they arrived he should bring them to the dye
house to Costarelli
Costarelli credibly testified that on January 13 several
Local 560 representatives came to the dye house He
then called a number of employees in groups of two or
three at a time, and told them in the presence of the
Local 560 agents to sign Local 560 authorization cards
When one or two expressed some reluctance at signing,
Costarelli told them that if they did not sign they would
be fired Local 560 obtained 21 signed cards on January
13 4 Among the card signers was Joseph Nazzaro who
testified he was the plant manager at the time
Counsel for Respondent contends that Costarelli was
singularly responsible for bringing in Local 560 and it
was unauthorized by Respondent This contention is
utter and complete nonsense The credible and unrebut
ted testimony of Costarelli and Nicolicchia establishes
that it was Sessa who contacted Local 560 and made ar
rangements for Local 560 to come to the plant More
over one of the card signers was Nazzaro who was al
legedly Respondent's plant manager at the time Further,
Respondent without express renouncement was respon
sible for Costarelli s actions Costarelli was after all a su
pervisor of the highest level responsible only to Sessa
I therefore conclude that Respondent by its represent
atives Sessa , Costarelli and Nazzaro called in agents of
Local 560 and in the presence of such agents coerced
employees into signing Local 560 authorization cards in
order to discourage and prevent organization of its em
ployees by the Union Such conduct is clearly violative
of Section 8(a)(1) Sanford Home for Adults, 253 NLRB
1132, 1138 (1981) Stroehmann Bros Co, 252 NLRB 988
994(1980)5
Several days before the election held on February 9
the employees on the second shift were all assembled by
Leadman Jose Rodriguez Employees Rafael Yi and
Manuel Chavez both credibly testified that Velez spoke
to the assembled employees Sessa was standing nearby
in sight of the employees Velez told the assembled em
4 G C Exhs 3-23
5 Such conduct would also be violative of Sec 8 (a)(2) However it
was not alleged in the complaint
COLUMBIA TEXTILE SERVICES
ployees in Spanish that if Local 560 won the election Re
spondent would provide the employees with the same
benefits provided in the contract between Christopher
Respondents predecessor, and Local 560, but if the
Union won the election Respondent would close the
shop When he finished speaking to the employees, he
spoke to Sessa Shortly afterward Velez returned and
told Yi and other employees that Sessa was angry that
the men were for the Union and he might close the
plant
As set forth above Velez denied holding any meetings
or conversations with employees about the Union How
ever, I have found Velez to be an untruthful witness and
discredit him As set forth above, Sessa , although avail
able did not testify
I credit the corroborative testimony of Yi and Chavez
and conclude that Velez, acting as an agent for Respond
ent and in the presence of Sessa, promised employees
benefits if they selected Local 560 over the Union and
threatened the employees with plant closure if they
voted for the Union By such statements I conclude Re
spondent violated Section 8(a)(1) by unlawfully promis
ing benefits and by threatening to close the shop
Discriminatory Conduct
Rafael Diaz was set forth in the Union s December 22
letter as a member of the organizing committee Some
time between December 22 and 31, Sessa came over to
where Diaz was working Through an interpreter he
asked Diaz if he wanted a union Diaz replied yes and
Sessa then asked why Diaz responded because of medi
cal benefits he believed the Union would be able to pro
vide
The following day Joe Bednarz , a supervisor,6 came
over to Diaz and told him that from now on he would
have no more overtime Diaz asked why and Bednarz re
plied that it was Sessa s orders Respondent s records es
tablish that prior to December 31 Diaz regularly was as
signed overtime Following December 31 he was as
signed no overtime Respondents witnesses offered no
reason for the discontinuance of Diaz overtime
On December 31 Diaz was working the first or morn
ing shift Shortly afterward he was transferred to the
afternoon shift Shortly after this shift change, and some
time prior to the election held on February 9 1984 Bed
narz told Diaz that he was being transferred to the
newly created midnight shift The following day Diaz
spoke to Sessa and complained about the shift change
Sessa told him this was where he needed him and if he
did not like it he could leave Diaz worked the shift as
assigned
Respondent witnesses testified essentially that the third
shift was created to increase production
The General Counsel has alleged the discontinuance of
Diaz overtime and his transfer to the third shift were
discriminatory The General Counsel alleges similar dis
criminatory conduct as to other employees as well as
6 Bednarz voted in the Board election His vote was challenged by the
Union who alleged him to be a supervisor within the meaning of the Act
As set forth below I find Bednarz to be a supervisor within the meaning
of Sec 2(11) of the Act
1043
various discriminatory discharges all described below
The General Counsel has the burden of proving that the
employees union activities were a motivating factor in
such alleged discrimination Once such motivating factor
is established the burden of proof shifts to Respondent to
establish the same action would have taken place in the
absence of the employees' protected activities NLRB v
Transportation Management Corp, 462 U S 393 (1983)
Wright Line, 251 NLRB 1083 (1980) enfd 662 F 2d 899
(lst Cir 1981) cert denied 455 U S 989 (1982)
The General Counsel has established an overwhelming
prima facie case concerning the discriminatory conduct
alleged as to Diaz Diaz activity as a leading union sup
porter and Respondents knowledge of such activity is
established conclusively through the Union s December
22 letter where Diaz is set forth as a member of the or
ganizing committee Respondents intense union animus
is established by its unlawful 8(a)(1) conduct described
above and unlawful 8(a)(3) conduct described below
The unlawful motivation for the discrimination alleged is
conclusively established by the credible and unrebutted
testimony of Costarelli a high level Respondent supervi
sor, who admitted that Sessa planned to coerce and at
tempt to force union adherents to cease their union activ
ity or quit by cutting out their overtime and creating a
third shift, and transferring union adherents to such shift
The discrimination alleged concerning Diaz follows Re
spondent s plan exactly Respondent offered no explana
tion as to why Diaz overtime was cut Its explanation
as to why the third shift was created is discredited in
view of Costarelli s admissions
Accordingly, I find the denial of overtime to Diaz and
his transfer to the third shift were discriminatorily moti
vated and in violation of Section 8(a)(1) and (3) I further
find that the formation of the third shift and assignment
of any employee to it was discriminatorily motivated
Additionally, for the reasons set forth concerning the un
lawful interrogation of Payamps I find that Sessa s inter
rogation of Diaz, described above, was violative of Sec
tion 8(a)(1)
The Discharge of Cesar Diaz
Diaz began his employ with Respondent on November
28 1983 as a production employee His name was not on
the Union s December 22 letter as a member of the orga
nizing committee He was not an open active union sup
porter
On or about December 23 after receipt of the Union's
letter, Diaz credibly testified he was approached by
Sessa who asked him if he wanted the Union in the shop
Diaz responded affirmatively Sessa then asked why and
Diaz said because he had a family A day or so later
John Kirschner, Diaz supervisor, 7 told him Sessa was
angry with him because he wanted the Union
A day or so later Kirschner credibly testified that he
overheard Sessa and Costarelli talking and they agreed
Diaz was one of those employees for the Union and
7 I find John Kirschner to be a supervisor within the meaning of Sec
2(11) of the Act His status will be discussed below in the section relat
ing to challenges
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
they would have to get rid of him Costarelli admitted
this conversation took place
Diaz was assigned to operate the number 15 dye box
On or about December 29 a quantity of material passing
through this dye box was damaged Costarelli was in
formed of the damaged goods and telephoned Kirschner
He asked Kirschner who the operator was Kirschner
said it was Diaz Costarelli said we ve got him we can
get rid of him you ve got to fire him, get rid of him
Kirschner asked why and Costarelli said because he de
stroyed the lot with caustic soda Kirschner protested
stating that he was not sure the lot was destroyed in this
manner Later tests confirmed Kirschner s opinion
Kirschner nevertheless discharged Diaz under Costarel
It s orders
Costarelli credibly admitted at trial that Sessa told him
to get rid of Diaz but he told Sessa he had to have a
reason first Costarelli further admitted the real reason
for discharging Diaz was his support for the Union
Counsel for Respondent during the trial took the post
tion that Diaz was discharged because of a poor absence
record, frequent lateness, and the damaged goods, de
scribed above, which finalized his discharge Howev
er in his brief he contends that Costarelli told Kirschner
to discharge the operator of dye box 15 without inquir
ing or without knowledge as to who the operator was,
and that this was the sole reason for Diaz discharge As
Respondent counsel sets forth in his brief 8 Costarelli
merely authorized the termination of the nameless opera
tor responsible for the dye box These contentions are
totally inconsistent 180 degrees apart
The evidence establishing a discriminatory discharge is
so conclusive it really requires no Wright Line analysis
However, the evidence establishes that Diaz was a union
supporter That Sessa was aware of his union support
and that he and Costarelli were looking for a way to get
rid of him They found it when a lot Diaz was working
on was damaged When Costarelli learned the operator
was Diaz, he exclaimed we ve got him' notwith
standing Kirschner s position that there was no reason at
this point to attribute the damage to Diaz negligence or
poor work Moreover at trial Costarelli admitted the
sole reason for Diaz discharge was his support for the
Union
Based on the Respondents animus Costarelli s admis
sions and Respondents inconsistent defense I conclude
that Respondent discharged Diaz in violation of Section
8(a)(1) and (3) of the Act
Since Diaz was not an open active union supporter
when Sessa interrogated him as to his union support on
December 23, I find that such interrogation is violative
of Section 8(a)(1) Rossmore House, supra
The Discharge of Elisardo Pardo
Pardo was one of if not the most active, union sup
porter He was designated as a member of the Union s
organizing committee He was vocal in his support for
the Union throughout the plant, and he distributed cards
and campaigned for the Union during lunchtime In view
8 R Br p 18 LL 12-13
of Respondents team of labor spies described above, I
find Respondent was aware of Pardo s union activities
Costarellt testified that Pardo was known to be a
strong vocal advocate for the Union He further admit
ted that as a result of such advocacy, Sessa would tell
him on an almost daily basis that they had to get rid of
him
Pardo regularly worked overtime about 2 days a
week Respondents records establish this Some time
during the last week in December 1983, Pardo credibly
testified that Sessa asked him why he only worked 2
days overtime per week Pardo said he went to school
the other nights and that Supervisor Bednarz had said it
was okay Sessa told him he (Sessa) was the boss Later
that day Bednarz told Pardo there would be no more
overtime for him Antonio Pardo his father Rafael Diaz
and Sergio Aponte Indeed, Pardo s testimony is cor
roborated by Respondents records which show that
these employees received no overtime after December
31, although other employees continued to work over
time Respondent offered no explanation for the discon
tinuance of such overtime other than the conclusory
statement that no employee was prevented from working
overtime
As set forth above, Costarelli has admitted that he and
Sessa in an attempt to force union adherents to cease
their activities or to force the employees to quit, em
barked upon a plan whereby Respondent denied employ
ees overtime and/or transferred them to the third shift
The evidence is conclusive that Respondent had knowl
edge of Pardo s activity and was out to get rid of him '
The denial of overtime fits into Respondents precon
ceived plan to get rid of union adherents Moreover,
other employees continued to work overtime while
Pardo and other discriminatees were denied overtime
Respondent offered no legitimate explanation as to why
Pardo s overtime was discontinued Accordingly I find
the denial of overtime after December 31 to be discri
minatonly motivated and in violation of Section 8(a)(3)
Pardo credibly testified9 that sometime during January
1984 prior to his discharge on January 19 Sessa and
Costarelli came over to Pardo s machine and Sessa told
Costarelli that this is the 1733 [Union] man that is caus
ing all the problems around here Sessa then told him
he already had the Teamsters Union in the shop This
testimony is corroborated by the 21 Local 560 cards that
had been signed by Respondents employees
A few days later Jose Velez, Respondents agent,
spoke with Pardo and employee Rafael Diaz Velez
asked Pardo why he was bringing in the Union He then
told both employees that if Local 560 came in Respond
ent would give them raises paid holidays and a vaca
tion This testimony was corroborated by the equally
credible testimony of Diaz Velez denied any conversa
9 I find Pardo to be a credible witness I was very impressed with his
demeanor He answered questions put to him during both direct and
cross examination in a forthright manner and in detail Moreover as will
be set forth below portions of his testimony were corroborated by other
credible witnesses while other portions of his testimony were corroborat
ed by Respondents business records i e his testimony regarding the
denial of overtime
COLUMBIA TEXTILE SERVICES
tions with employees concerning the Union but, as set
forth above, I find Velez to be an untruthful witness en
tirely unworthy of belief
Accordingly, as I have found Velez to be an agent of
Respondent, I find his promise of benefits to be violative
of Section 8(a)(1)
Employee Ed Nicolicchia credibly testified that on
January 19 he overheard Sessa tell Velez as they passed
Pardo that son of a bitch has got to go He then
walked over to Pardo Pardo credibly testified that Sessa
came over to him and told him not to campaign for the
Union in the plant Pardo told him he could campaign
during lunchtime Sessa then put his shoulder down and
rammed into Pardo Employees then separated them and
Sessa cursed Pardo and Pardo cursed back Respondents
labor spies Velez, Modesto Burgas, and Luis Gonzales,
testified that it was Pardo who rammed Sessa As set
forth above, I have discredited Velez For those reasons
I discredit his testimony as to this incident
I also discredit Burgas and Gonzales I was unim
pressed with the demeanor of both Burgas and Gonzales
Both witnesses were especially vague and evasive on
cross examination regarding the above incident Gonzales
testified he just happened to enter the area, saw the par
ties talking but could not hear what was said, and then
he just allegedly saw Pardo push Sessa He admits he did
not hear what might have provoked such action by
Pardo I find this testimony unbelievable Burgas testified
that he was present and heard Sessa tell Pardo not to or
ganize during working hours Pardo said he would orga
nize when he wanted Sessa then threw up his arms and
said he could not believe what he was hearing Then
Pardo pushed him Based upon this testimony, there is no
logical reason why Pardo would push Sessa
Additionally, Velez, Burgas , and Gonzales were paid
by Respondent to act as labor spies and as such would
be expected, as part of their payoff to testify favorably
for Respondent Further, Gonzales and Burgas testimo
ny as to how they got their raises like that of Velez is
so unbelievable it is almost laughable
In view of Sessa's intense animus toward Pardo and
his intention to get rid of him, Pardo s testimony is logi
cal It strikes me as highly probable that Sessa, partly en
raged at Pardo's insistence upon his right to pursue his
union activities , and partly to provoke Pardo so that he
would have an excuse to get rid of him pursuant to his
often expressed intention was likely to act in the manner
described by Pardo Respondent offered no credible evi
dence as to why Pardo would push Sessa Certainly,
Burgas testimony regarding the incident provides no
logical reason why Pardo would push Sessa and Velez
and Gonzales admittedly did not hear what preceded the
alleged pushing incident
Pardo testified that after Sessa left he returned to
work A short time later Nazzaro came over to him and
told him he was terminated As he was leaving Burgas
who was present told him Sessa wanted to talk to him
Pardo left without talking to Sessa
Nazzaro testified that Sessa told him in the plant office
that Pardo had just taken a swing at him and he asked
Nazzaro to bring Pardo into the office because he
wanted to talk to him Nazzaro testified that with Burgas
1045
accompanying him he went to Pardo s work station and
told him Sessa wanted to speak to him in the office
Pardo refused to accompany Nazzaro to Sessa s office
and cursed him Nazzaro s testimony is corroborated by
Burgas
I credit the testimony of Pardo
I find Nazzaro to be an untruthful witness whose tests
mony in significant parts consists of a stung of lies In
this connection I found his testimony as to how Velez,
and others, Respondents spy team came to receive their
raises untruthful I find his testimony as to how he hap
pened to sign a Local 560 card also untruthful In this
regard Nazzaro testified that Costarelli, a supervisor,
asked Nazzaro, the alleged plant manager, to sign a
Local 560 card He then testified that he signed it but
thought it was kind of odd, me being a superintendent
[he evidently demoted himself, but perhaps in this case
he was telling the truth about his position] to sign an au
thorization card He designated his position on the card
to be a foreman, which is inconsistent with his present
contention that he was plant manager at that time
Throughout his testimony he displayed a marked lack of
knowledge of the plant operation and the duties and
functions of leadmen and supervisors He was unable to
explain why various challenged supervisors10 were lead
men and not supervisors, although they seemed to pos
sess the same authority as admitted supervisors, received
the same salary, and received the same medical and other
fringe benefits that were different from hourly paid em
ployees He had the same difficulty explaining how
Velez and his group of spies were leadmen, employed in
the same capacity as the supervisors alleged by Respond
ent to be leadmen although they did not perform the
same work functions were hourly paid employees, and
received different medical and fringe benefits from the
salaried employees Further, although Nazzaro testified
he was the plant manager in charge of all supervisory
and production employees, he later testified he had no
authority over Costarelli who was evidently supervised
by Sessa
Additionally but most significantly Nazzaro testified
that Pardo was discharged solely for his insubordination
to him notwithstanding that he later admitted that prior
to the trial he was aware that Sessa had given an investi
gatory statement in which Sessa admitted the sole reason
for Pardo s discharge was Pardo s taking a swing at
Sessa
I could go on and on with other reasons for discredit
ing the testimony of Nazzaro but such discussion would
be as long as this decision
Needless to say I was unimpressed with Nazzaro s de
meanor His testimony was generally evasive vague, and
lacking in detail
Applying a Wright Line analysis to the Pardo dis
charge the credible evidence, described in detail above,
establishes knowledge animus including Sessa s repeated
intention to get rid of Pardo for his union activities and a
discriminatory denial of overtime Such evidence estab
lishes an overwhelming prima facie case Respondent s
10 The challenged ballots will be discussed below
1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
contradictory defenses that Pardo was discharged for
taking a swing at Sessa or being insubordinate to Naz
zaro have both been discredited Accordingly, I con
clude that Pardo's discharge was discnminatonly moti
vated and violative of Section 8(a)(1) and (3)
The Discharge of Rafael Yi
Yi began work for Respondent in October 1983 in the
finishing department He worked the second shift
Yi was an active union supporter Some time during
mid January 1984 Yi distributed union campaign litera
ture to employees in the plant during his shift The litera
ture listed his name as a member of the Union s organiz
ing committee He was not listed as a member of the or
ganizing committee in the Union's December 22 letter
On the day Yi distributed this literature or a day or so
later, Yi credibly testified that Sessa was walking
through the plant and asked him if he wanted the Union
Yi answered affirmatively Sessa asked him who had
given him his job, he or the Union He then told Yi that
from now on he would not be working any more over
time Respondents records confirm that Yi worked no
overtime after January 21
For the reasons set forth above, in my discussion con
cerning the unlawful interrogation of Payamps by Sessa,
I find Sessa's questioning of Yi to be unlawful interroga
tion in violation of Section 8(a)(1) I also find Sessa s
statement to Yi that he would work no more overtime an
unlawful threat in violation of Section 8(a)(1) Further, in
view of this threat Respondents preconceived plan to
discriminate against union supporters in this manner, and
Respondent's failure to offer any explanation for the dis
continuance of overtime I find such discontinuance to be
violative of Section 8(a)(1) and (3)
On or about the third week of January, Yi s supervi
sor, Kurt DeLong told him that he was being trans
ferred to the third shift Respondents records establish
that he worked the third shift for several days The shift
was thereafter discontinued and he returned to the
second shift As set forth above in connection with Re
spondent s discrimination concerning Rafael Diaz I
found the creation of the third shift and assignment of
employees to such shift was discriminatorily motivated
In connection with Yi, he was an active union supporter
Respondent was aware of such support Respondent s
animus is established by its unlawful interrogation
threats, and discriminatory discontinuance of overtime
Based on this evidence and on my finding regarding the
discriminatory motivation for establishing the third shift,
I conclude that Yi s assignment to such shift is violative
of Section 8(a)(1) and (3)
On or about the end of January 1984, Yi credibly testi
fled he was assigned to clean the heat setting machine by
Supervisor Bednarz at the end of his (Yi s) shift and that
he did so working overtime the first and second days fol
lowing this assignment Bednarz was the supervisor of
the shift immediately following Yi s shift 11
I I As set forth above I conclude Bednarz was a supervisor within the
meaning of Sec 2(11) of the Act His supervisory status is discussed in
the section of this decision relating to challenged ballots below
Yi credibly testified that on the third day following
the initial assignment another employee was cleaning the
heat setting machine Bednarz informed him it was his
responsibility to clean the heatsetter, but agreed to let Yi
get away with it this time since another employee was
cleaning it The following day Yi credibly testified he
was told he was being terminated for not cleaning up the
heatsetter as assigned
Bednarz denied he made this assignment Kurt
DeLong, Yi s supervisor, testified it was he who assigned
Yi to clean the heatsetter and that Yi failed to do so the
first and second days following such assignment
DeLong then testified he warned Yi that it was his re
sponsibility to clean the heatsetter DeLong testified that
when Yi failed to clean the heatsetter the third consecu
tive day he discussed the situation with Nazzaro and it
was decided to terminate Yi
Costarelli contradicts DeLong s and Bednarz testimo
ny He credibly testified that it was Bednarz responsibil
ity to have the heatsetter cleaned This testimony is cor
roborated by the credible testimony of Sergio Aponte,
who credibly testified that Bednarz would arrive one
half hour early and assign him the job of cleaning the
heatsetter after Yi was terminated
I credit the testimony of Yi and Aponte I was gener
ally impressed with their demeanor Moreover, their tes
timony is in significant part corroborated by the credible
testimony of Costarelli Additionally, I was not im
pressed with the demeanor of Bednarz who impressed
me as evasive on cross examination I was particularly
unimpressed with the demeanor of DeLong who was ex
tremely evasive on cross examination
Costarelli also credibly testified that immediately fol
lowing the termination of Yi John Sessa told him that
they had gotten rid of an employee presumably Yi be
cause he was a union supporter
The credible evidence establishes conclusively that the
discharge of Yi was discriminatorily motivated The evi
dence discussed above established Yi s union activities,
Respondents knowledge of such activities its animus, its
discrimination against Yi by refusing to permit him to
work overtime and his assignment to the third shift
Costarelli s admission that Yi was discharged for his
union activities is consistent with Respondents plan to
terminate union supporters if they were unable to force
them to leave after discnmmatonly discontinuing their
overtime and transferring them to the third shift Re
spondent s defense that Yi was discharged because he re
portedly refused to perform the work assignment of
cleaning the heat setting machine was discredited Ac
cordingly, I conclude the termination of Yi was discri
minatonly motivated in violation of Section 8(a)(1) and
(3)
The Discharge of Manuel Chavez
Chavez was employed by Respondent from its incep
tion as a production employee
As set forth above, during the first week in February,
shortly before the election, Velez spoke to the assembled
employees in the presence of Sessa During this speech
he promised the employees increased benefits and threat
COLUMBIA TEXTILE SERVICES
ened to close the shop as discussed above Following his
speech he spoke with Yi, a known strong union support
er, and Chavez Chavez at this time told Velez that if
Respondent was making promises he should have Re
spondent put it in writing Velez then spoke with Sessa
who had observed this conversation and reported the
employees' reaction to his speech, including , no doubt,
his conversation with Yi and Chavez It is probable, and
I find, that based on his comments to Velez, Sessa con
cluded Chavez was a union supporter
About 1 week after the election, Chavez credibly testi
fled that DeLong informed him Sessa had ordered that
he no longer be assigned overtime Respondent's records
establish that beginning on February 18, Chavez' over
time was significantly reduced Respondent offered no
reason for such reduction In view of Respondent's pre
conceived plan to rid itself of union supporters and
based on Respondents knowledge of Chavez activities,
his association with Yi, and the failure to explain why
Chavez overtime was reduced, I conclude such reduc
tion was discnminatonly motivated in violation of Sec
tion 8(a)(1) and (3)
On or about February 24, Chavez credibly testified
that DeLong told him Sessa was transferring him to the
third shift Chavez told him he could not work the third
shift because of personal family responsibilities
Costarelli credibly testified that following Chavez' no
tification of his transfer to the third shift, Chavez spoke
to him and told him he was unable to work the third
shift Costarelli told Chavez there was nothing he could
do about the transfer As Costarelli credibly testified
John Sessa and I We would discuss how can we
get rid of these guys and that was when I said you
cant get rid of them without a reason And that
would be a reason, if they went on the third shift
and refused to work on the third shift
The General Counsel contends that Chavez was con
structively discharged There are two elements that the
General Counsel must establish to prove a constructive
discharge ( 1) the burden imposed on the employee must
cause and be intended to cause a change in working con
ditions so difficult or unpleasant as to force the employee
to resign, and (2) it must be shown that those burdens
were imposed because of the employees union activities
Crystal Princeton Refinery Co 222 NLRB 1068 1069
(1976)
The burdens are established conclusively by the testi
mony of Costarellf described above Moreover, I specifi
cally concluded that the purpose of the third shift was to
assign union supporters to this shift in an attempt to
force them to quit The evidence established that such
discriminatory transfers were repeatedly made in connec
tion with other union supporters described above and
below , and when they stuck it out , they were summarily
discharged based on other pretexts
I find no merit in Respondent counsel's contention that
Chavez was not an active union supporter While this
may be true , the evidence discussed above established
that Sessa believed him to be a union supporter In this
connection there was his association with Yi a strong
1047
union supporter, and his demand of Velez that Respond
ent s promises of increased benefit be put in writing
Moreover Respondent subjected him to the same dis
crimination that other known union supporters were sub
jected Accordingly, I conclude that Respondent con
structively discharged Chavez in violation of Section
8(a)(1) and (3)
The Discharge of Antonio Pardo
Antonio Pardo began working in Respondent's facility
in 1968 when it was owned by another company He
worked at this facility continuously through a succession
of companies including Respondent
Antonio was a prounion supporter He distributed
union literature in the shop His son, Elisardo Pardo, was
the Unions key organizer As set forth above, he was
discnminatonly deprived of overtime on December 31,
and thereafter discriminatorily discharged
Respondents records establish that Antonio Pardo s
overtime was discontinued on the same date his son's
overtime was discontinued and the overtime of other
union supporters Respondent failed to supply a reason
for this discontinuance Based on Costarelli s admissions,
described above, Respondent's knowledge of Elisardo
Pardo s union activities, its probable knowledge of Anto
nio's activities and support acquired through its labor spy
network, a logical presumption that if the son, Elisardo,
was a key union supporter, the father, Antonio was
probably a union supporter too Respondent's union
animus, its similar conduct directed at other union sup
porters, and its failure to offer an explanation for the dis
continuance of overtime, I conclude such denial of over
time was discriminatory and in violation of Section
8(a)(1) and (3)
Antonio Pardo credibly testified that some time
around mid February 1985 his supervisor Bednarz, told
him "Mr John [Sessa] ordered him transferred to the
third shift 12 He never worked the third shift When he
reported to work the shift several days later, discussed
below he was terminated
For the same reasons described above relating to other
union supporters who were assigned to work the third
shift I find that assignment to such shift is violative of
Section 8(a)(1) and (3)
Pardo credibly testified he was unable to work the
third shift as assigned because of a leg injury which re
quired medical attention Pardo received a note from his
doctor indicating he would be unable to work for a
period of 3 days, and gave it to employee Joaquim Perez
to give to his supervisor, DeLong Perez credibly tests
fled he gave this doctor s note to Supervisor DeLong
DeLong denied receiving this note I credit the testimo
ny of Pardo that he obtained a doctor s note, and the tes
timony of Perez that he gave it to DeLong As set forth
above, I do not credit DeLong
On or about February 20 Pardo reported for work on
the third shift but observed his timecard was not in the
rack DeLong told him he had been laid off
12 As set forth above I conclude Bednarz is a supervisor
1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The evidence established that other employees who
had received doctors notes explaining medical disabil
sties were permitted to return to work when such disabil
ity concluded
For the same reasons I conclude the discontinuance of
Pardo s overtime and his transfer to the third shift were
discriminatory I conclude his discharge was discrimina
tory In making such conclusion I have discredited Re
spondent s defense that it did not receive a doctor s note
and had therefore assumed Pardo had abandoned his job
and they had replaced him Moreover, his discharge fits
the discriminatory pattern set in motion by Sessa and
Costarelli directed against union supporters
The Discharge of Sergio Aponte
Aponte was employed by Respondent as a production
employee He was one of the employees who was listed
on the Union s December 22 letter as a member of the
organizing committee Therefore, Respondents knowl
edge of Aponte s activities is clear
Respondents records establish that following the re
ceipt of the above union letter Aponte s overtime was
reduced to some extent It was not discontinued Shortly
after the Union distributed campaign literature Aponte
was transferred to the third shift Respondent offered no
explanation different from its explanations described
above as to other union supporters for such actions For
the same reasons set forth above, I find the reduction of
overtime and shift transfer to be discriminatorily moti
vated and in violation of Section 8(a)(1) and (3)
On or about September 11 some 7 months after the
union election had been conducted Aponte testified he
became incapacitated and unable to work A doctor s
note he obtained indicates he was incapacitated by diabe
tes The note, which was apparently signed indicated he
would be absent until October 24 Aponte testified he
gave the note to his son Carlos who told him he gave
the note to the watchman presumably Nicolicchia who
later told Carlos he had given it to the office Although
Nicolicchia was called as a witness by the General
Counsel he was not questioned whether he was given
this note by Aponte s son and who, if anyone he gave it
to in the office Respondent denies receipt of such note
DeLong credibly testified that during Aponte s absence
he was advised by a coworker that Aponte left for Santa
Domingo a few days after the onset of his alleged illness
Aponte admitted he spent virtually all the time between
September 12 and October 22 in Santa Domingo but
claims such visit was necessary because he was notified
that his mother, who resides in Santa Domingo was serf
ously ill DeLong credibly testified that based on this in
formation and the lack of communication with Aponte
he hired a replacement When Aponte reported to work
on October 22 he was told he had been replaced
In view of the compound hearsay testimony concern
ing the delivery of the doctor s note to Respondent, cou
pled with Respondents denial of receipt of such notice I
conclude that the General Counsel failed to establish re
ceipt of such doctor s note by Respondent officials I fur
ther conclude that based on the failure of Aponte to
communicate to Respondent a legitimate reason for his
extended absence, and based on Respondents informa
tion that he had left the country, the 8 month hiatus be
tween the election and Aponte s replacement Respond
ent s action in hiring a replacement was not discrimina
torily motivated 13 Accordingly I conclude Respondent
did not violate Section 8(a)(1) and (3) when it replaced
Sergio Aponte
The Discharge of the Dye House Employees
Ramon Tavares Rafael Tavares Francisco Mauro,
Victor Castro, and Juan Valera were all hired by Re
spondent after the February election They worked in
the dye house on the second shift
Castro a longtime member of the Union at other com
parties was hired by Costarelli in July 1985 Castro testa
feed that during his hiring interview Costarelli warned
him to be careful about talking about the Union in the
shop Costarelli indicated there were all kinds of employ
ees in the shop and that if Sessa believed he was a union
supporter he could be fired
Castro and the above four other employees were union
supporters At times they spoke to other second shift em
ployees about the Union and expressed their union sup
port
During the Thanksgiving period (the Wednesday
before Thanksgiving through Sunday), the shop was
painted When the five dye house employees reported
for work that Sunday, November 25, they saw union
signs painted on the walls of the dye house Employee
Joaquim Perez credibly testified that on November 26 or
27 after the appearance of these union signs Supervisor
Ismailovski told him Respondent was going to have
people watch the employees because of these signs That
Wednesday, November 27 labor spies Velez and Jose
Senscion spent the entire shift watching the production
employees
On Sunday November 25 the day the employees re
turned from the Thanksgiving holiday Respondent Su
pervisor Feinstein the dyer on the second shift, testified
he observed Ramon Tavares pour a 5 gallon pail of some
chemical over the number 1 dye box Castro and Rafael
Tavares were present at this machine Feinstein testified
that although this was not normal procedure he did not
question the employees about it Feinstein testified that
later he felt some of the material that had passed through
dye box 1 and felt it was slimy a condition which
could indicate damaged goods Nevertheless Feinstein
did not speak to Tavares or the other employees about it
He testified he did report the incident to Nazzaro the fol
lowing day
Nazzaro testified that following an inspection of all the
lots dyed on the various dye boxes that night he discov
ered 10,000 to 15,000 yards of damaged goods colored
royal blue and red
The five dye house employees credibly testified with
out contradiction that on Sunday, November 5 the night
1' There was no evidence submitted that Respondent thereafter discn
minatorily failed to recall Aponte In this connection Respondent does
not recall such laid off employees but rather permits them to apply for
work and if openings are available will reconsider their rehire There is
no evidence that Aponte made such application
COLUMBIA TEXTILE SERVICES
the goods were allegedly destroyed, they operated dye
boxes dying the following colors
Rafael Tavares Yellow Lime
Ramon Tavares Pink
Victor Castro Lilac Turquoise
Francisco Maura Yellow Black
Juan Valera White
Their testimony is corroborated by the credible testa
mony of employee Domingo Gonzales who testified it
was he who dyed the blue goods Moreover he testified
that Respondent had been having problems with fabric
dyed this color since before Thanksgiving
The truthfulness of the dye house employees testimo
ny is further reinforced by the failure of Respondent to
produce its records which list the color dyed and the
dye box handling that color The failure by Respondent
to produce such records raises the inference that the
records would not support Respondents witnesses' tests
mony Town & Country LP Gas Service Co, 255 NLRB
1149 1151 (1981)
On November 30, Nazzaro discharged the above five
employees The reason for the discharge was the alleged
destruction of goods Costarelli credibly testified that on
November 30 he discussed the discharges with Ismai
lovski During the discussion Costarelli asked why they
fired those people a reference to the above five employ
ees discharged Ismailovski replied, I had no control
over that That was done through John Sessa They had
to get fired-he wanted them out because he believed
[emphasis supplied] they were talking about 1733 [the
Union] Ismailovski denied this statement For the rea
sons set forth above I find Costarelli to be a credible
witness I credit his testimony over Ismailovski's denial
The evidence established Respondents continued ani
mosity toward the Union In this respect, Costarelli
warned Castro in July to be careful about talking about
the Uunion and that if Sessa believed he was a union
supporter he could be fired Thus in July 6 months after
the union election, Sessa was still out to fire union sup
porters or employees he believed to be union supporters
The evidence establishes that the five discharged em
ployees were active, and given Respondents labor spy
network, the union signs painted in the dye house it was
probably aware of these employees support However
whether the employees were actually active and whether
Respondent had actual knowledge of such support is not
material What is material is whether Respondent believed
such employees were active union supporters and dis
charged them based on this belief NLRB v Clinton
Packing Co 468 F 2d 953 (1972), Lizdale Knitting Mills,
211 NLRB 966 (1974) Respondents belief that the five
employees were active union supporters is established by
Costarelli s testimony concerning his conversation with
Ismailovski, where it was admitted that Sessa ordered
the five employees discharged because he believed they
were talking up the Union This conversation also con
clusively establishes Respondents sole motivation for
their discharge
Respondents defense that the employees were dis
charged for suspected sabotage is refuted by the evi
1049
dence which established that they were not operating the
dye boxes responsible for the alleged damaged goods
Accordingly I conclude that Respondent discharged
the above five employees because of their actual or sus
pected activities on behalf of the Union in violation of
Section 8(a)(1) and (3) of the Act
Objections and Challenges
On February 9 1984, an election was held in a unit
consisting of all production and maintenance employees
excluding all office clerical employees, professional em
ployees guards, and supervisors as defined in the Act
Following the election the tally of ballots established
Approximate number of eligible voters-80
Void Ballots-90
Votes cast for Dyers Local 1733-9
Votes cast for Local 560 Teamsters-31
Votes cast against participating labor organiza
tions-11
Valid votes counted-63
Challenged ballots-13
Valid votes counted plus challenged ballots -76
Challenges are sufficient in number to affect the results
of the election
Local 1733 challenged the ballots of Carolyn Trippler,
Denise Collora, Mildred Garcia and Frances DePraspo,
on the grounds that they were office clericals the ballots
of Costarelli Joseph Bednarz, Henry Feinstein Ray
mond Mignone, and Jose Rodriguez, on the grounds that
they are supervisors within the meaning of the Act and
the ballot of Joseph Nickles on the ground that he is a
professional within the meaning of the Act The ballot of
Rafael Yi was challenged by Respondent, on the ground
that he was not employed by Respondent as of January
14 1984, the payroll eligibility date The ballot of Eli
sardo Pardo was challenged by the Board agent on the
ground that his name was not on the eligibility list sub
mitted by Respondent
In addition, Local 1733 filed timely objections to the
conduct of the election which are substantially similar to
the unfair labor practices alleged
On June 26 1984, the Regional Director consolidated
the objections and challenges with the unfair labor prac
tices alleged here
The Office Clerical Challengesi4
The credible evidence establishes that both Collora
and DePraspo work almost exclusively in Respondent s
office area They are both supervised by Carolyn
Trippler, the office clerical supervisor, and eat their
lunch in the office Collora spends substantial time oper
ating a calculator and typewriter She prepares orders
and shipping instructions and bills of lading Her duties
are almost exclusively clerical in nature Her contact
with the production area and production employees is
14 During the course of the hearing Respondent stipulated that
Tnppler was the office clerical supervisor within the meaning of the Act
and that Mildred Garcia was an office clerical employee excluded from
the unit
1050 DECISIONS OF THE NATIONAL LABOR. RELATIONS BOARD
minimal and limited to rare occasions when she may
have to check on the items in an order or shipping in-
structions.
DePraspo spends substantial time operating an adding
machine and writing up and recording orders. She also
maintains records of incoming freight. Like Collora she
has only similar minimal contact with the production
area and production employees.
In view of their separate work locations in the office,
their common supervision by Trippler, the office clerical
supervisor, their inherent clerical functions, their minimal
contact with the production area and production em-
ployees, and their separate eating location, I conclude
they are office clerical employees and thus excluded
from the unit. Case, Inc., 237 NLRB 798, 806 (1978);
Capitol Temptrol Corp., 243 NLRB 575, 583 (1979).
I therefore conclude that the challenges to the ballots
of Trippler, Garcia, DePraspo, and Collora should be
sustained.
Employees Challenged as Supervisors
Joseph Bednarz was "in charge" of the first-shift fin-
ishing operation . The credible evidence establishes that
he had authority to hire and fire employees , although
there is no evidence that he actually did so. He did
assign work and gave employees permission to come in
late or leave early. When the timeclock was broken,
Bednarz initialed employee timecards . He does not oper-
ate out of an office but does have a workdesk by the
production machines.
Nazzaro admitted that Bednarz had the same authority
as Kurt DeLong , an admitted supervisor , except he
denied Bednarz could hire or fire. However , Bednarz is a
salaried employee , receiving the same salary as DeLong,
$650 per week . The production employees are all hourly
paid employees . I conclude that Bednarz is a supervisor
within the meaning of the Act. Miami Springs Properties,
245 NLRB 278, 284 fns . 9-13 (1979); Paramount Trends,
Inc., 222 NLRB 141 (1976); Colorflo Decorator Products,
228 NLRB 408 (1977).
Henry Feinstein was the dyer on the second shift. The
credible evidence establishes he had authority to hire and
fire employees , assign work , and authorize employees to
leave early . He was a salaried employee earning $650 per
week , the same salary as DeLong, an admitted supervi-
sor. In addition, he, like DeLong , Costarelli , and Naz-
zaro, received superior medical coverage from a differ-
ent medical plan than those medical benefits received by
the hourly paid employees . I find Feinstein to be a super-
visor within the meaning of the Act. Miami Springs; Co-
lorflo Decorator, Paramount Trends, supra.
Raymond Mignone replaced John Kirschner as the
dye house operator on the first shift , 7 p.m. to 4 a.m. His
duties included setting up the dye formulas , the lot as-
signments of workers on the various lots that he set up,
and overseeing the employees . According to credible tes-
timony , in carrying out these functions he could assign
work , and hire and fire employees . Mignone was also a
salaried employee earning $650 per week and received
the same superior health benefits as other admitted super-
visors. I find Mignone to be a supervisor within the
meaning of the Act. Miami Springs; Colorflo Decorator;
Paramount Trends, supra.
Jose Rodriguez was employed by Respondent as a "la-
borer." He was hourly paid and punched a timeclock.
He did not spend much of his workday operating ma-
chines. He was supervised by DeLong, who credibly tes-
tified that his primary duty was to oversee through his
instructions that the quantity and quality of production
required by him was produced. Any problems in this
connection were reported by him back to DeLong. I do
not find such duties to constitute the 45authority of re-
sponsible assignment of work within the meaning of the
Act. There is no credible evidence that he possessed
other supervisory indicia. Accordingly, I conclude there
is insufficient evidence to establish that Rodriguez was a
supervisor within the meaning of the Act.
Based on the above, I conclude that the challenges to
Bednarz, Feinstein, and Mignone be sustained and the
challenges to Rodriguez be overruled and that his ballot
be opened and counted.
Employee Challenged as Professional
Joseph Nickles was employed by Respondent as a
boiler operator. Nickles was a salaried employee who at-
tended college.for 3 years, where he acquired consider-
able engineering credit. He thereafter obtained a State of
New Jersey license to operate boilers up to 1200 horse
power. He works exclusively in the boiler room with an-
other boiler operator maintaining Respondent's boiler
plant. He has virtually no contact with the production
employees and is supervised directly by Joe Nazzaro, the
plant manager. In view of his salary, his engineering
skills, and his lack of contact with production employees,
I conclude that he is a professional employee. St. Vicent's
Hospital, 223 NLRB 638 (1976). Accordingly, I conclude
that the challenge to his ballot should be sustained.
Void Ballot Challenge
The parties challenged a ballot with a hole punched in
the center of the square designating Local 1733.15 There
were no other markings on the ballot. The Board held in
Kaufman's Bakery, 264 NLRB 225 (1982):
In keeping with the Board's long-established policy
of attempting to give effect to voter intent when-
ever possible, we will hereafter regard a mark in
only one box, despite some irregularity, as presump-
tively a clear indication of the intent of the voter.
I conclude that, in view of the marking in the center
of the Local 1733 box and the absence of any other mark
or irregularity in any other box or on any other part of
the ballot, the voter clearly expressed an intent to vote
for Local 1733. I conclude that the ballot should be
counted as a vote for Local 1733.
The Challenges to Rafael Yi and Elisardo Pardo
In view of my conclusion above that Yi and Pardo
were unlawfully discharged by Respondent, I conclude
15 Board Exh. 1.
COLUMBIA TEXTILE SERVICES 1051
that the challenges to their ballots be overruled and their
ballots be counted
Respondents 10(b) Defense
Respondent contends that the amendments to the com
plaint alleging the discriminatory discharges of Rafael Yi
and Antonio Pardo were based on charges that were
withdrawn by Local 1733 and thereafter refiled outside
of the 10(b) period, and therefore time barred Respond
ent further contends that the initial charges concerning
the discriminatory discharge of Manuel Chavez and cer
tarn 8(a)(1) conduct were filed outside the 10(b) period
and therefore similarly time barred
There are three unfair labor practice charges The
first, Case 22-CA-13089, was filed by Local 1733 on
March 2, 1984, alleging numerous violations of Section
8(a)(1) and (3), including the discharges of Antonio
Pardo and Rafael Yi The complaint which issued there
upon alleged a violation of Section 8(a)(3) by the dis
criminatory discharge of Elisardo Pardo the unlawful
elimination of overtime of Elisardo Pardo, Antonio
Pardo, Rafael Diaz, and Rafael Yi, and the unlawful shift
transfers of Antonio Pardo, Rafael Diaz, Rafael Yi and
Manuel Chavez The charge allegations concerning the
discharges of Antonio Pardo and Rafael Yi were with
drawn
On June 21, Cesar Diaz filed Case 22-CA-13310, al
leging his unlawful discharge on December 30 A com
plaint based on this charge thereafter issued
On September 6 and 14, the charge in Case 22-CA-
13089 was amended to include the alleged discharges of
Antonio Pardo and Rafael Yi On December 21, 1984, a
second amended complaint issued alleging these dis
charges and agency allegations concerning Modesto
Burgas and Jose Velez, and certain 8(a)(1) allegations al
legedly committed by Velez acting as Respondent s
agent All of these allegations took place more than 6
months from the dates of the amended charges Similar
ly, on January 14, the first day of trial, the complaint
was again amended to include the alleged unlawful solic
station of Local 560 cards by Respondent This allegation
took place more than 6 months from the date of the
amendment
Whether such amendments are permitted has been the
subject of recent litigation Ducane Heating Corp, 273
NLRB 1389 (1985) Winer Motors Inc, 265 NLRB 1457
(1982) These cases hold that charges withdrawn or dis
missed cannot be reinstated beyond the 10(b) period
except when there has been a fraudulent concealment by
a respondent When there is a fraudulent concealment,
the limitations period begins to run when the charging
party knows or should have known of the concealed
facts Ducane Heating supra at 1391
In this case there was a critical fraudulent concealment
by Respondent According to the credited testimony of
Costarelli , he, pursuant to the instructions of Sessa, a
principle of Respondent, gave false testimony during the
Board s investigation of the initial charge There is no
doubt that at least in significant part as a result of such
testimony there was insufficient evidence to establish the
alleged discriminatory discharges of Antonio Pardo and
Yi, and so they were withdrawn Similarly as a result of
such false testimony, there was no knowledge as to the
discriminatory nature of Chavez discharge, Velez and
Burgas status as Respondents labor spies, or the addi
tional 8(a)(1) activities described above When Costarelli
decided to tell the truth, as evidenced by his testimony,
the discriminatory nature of the discharges, the labor spy
status of Velez and Burgas and the additional 8(a)(1) ac
tivity became clear Moreover, in the entire case, all the
allegations were significantly strengthened if not conclu
sively proved by Costarelli s testimony The fraudulent
concealment by Respondent in this case was monumen
tal Accordingly, I reject Respondent counsel's conten
tion that the above allegations concerning Antonio Pardo
and Yi were time barred and could not be reinstated
under the rationale of Ducane and Winer, supra Regard
ing those new allegations concerning Chavez and the ad
ditional 8(a)(1) activity, I conclude they could have been
filed under the fraudulent concealment exception to
Ducane Winer and others, supra, or on the theory that
they were closely related to the outstanding complaint
allegations NLRB v Dinion Coil Co, 201 F 2d 484 491
(2d Cir 1952)
CONCLUSIONS OF LAW
1 Respondent is and has been at all times material an
employer engaged in commerce within the meaning of
the Act
2 Local 1733 is a labor organization within the mean
ing of Section 2(5) of the Act
3 Local 560 is a labor organization within the mean
ing of Section 2(5) of the Act
4 By interrogating its employees concerning their
membership in or activities on behalf of Local 1733 Re
spondent has violated Section 8(a)(1) of the Act
5 By threatening to close its plant if Local 1733 was
selected by the employees as their collective bargaining
representative, Respondent has violated Section 8(a)(1)
of the Act
6 By threatening to discontinue overtime normally
worked by employees if Local 1733 was selected by the
employees as their collective bargaining representative
Respondent has violated Section 8(a)(1) of the Act
7 By promising its employees improved benefits in
their working conditions to coerce them from selecting
Local 1733 as their collective bargaining representative,
Respondent has violated Section 8(a)(1) of the Act
8 By granting employees raises and bonuses in order
to coerce them from selecting Local 1733 as their collec
tive bargaining representative , Respondent has violated
Section 8(a)(1) of the Act
9 By engaging in surveillance of its employees' activi
ties on behalf of Local 1733, Respondent has violated
Section 8 (a)(1) of the Act
10 By coercively forcing and requiring its employees
to join Local 560 Respondent has violated Section
8(a)(1) of the Act
11 By discriminatorily reducing the overtime of em
ployees Antonio Pardo, Manuel Chavez, Rafael Diaz
Rafael Yi Elisardo Pardo and Sergio Aponte, Respond
ent has violated Section 8(a)(1) and (3) of the Act
1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 By discrimmatonly changing the workshift of em
ployees Rafael Yi, Rafael Diaz Sergio Aponte, and An
tonio Pardo Respondent has violated Section 8(a)(1) and
(3) of the Act
13 By discriminatorily discharging Cesar Diaz Eli
sardo Pardo, Rafael Yi, Manuel Chavez Ramon Tavares
Rafael Tavares Francisco Mauro, Victor Castro, and
Juan Valero, Respondent violated Section 8(a)(1) and (3)
of the Act
THE REMEDY
Having found that Respondent has engaged in various
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative actions
designed to effectuate the policies of the Act
Because I have found that Respondent discriminatorily
discharged and thereafter refused to reinstate those em
ployees set forth in paragraph 13, I shall recommend
that Respondent make whole those employees for any
loss of earnings they may have suffered by reason of the
discrimination against them from the date of their termi
nation until the dates of their reinstatement or offers of
reinstatement
Additionally, I shall recommend that Respondent
make whole the employees set forth above in paragraph
11 for their discriminatorily reduced overtime
Backpay for the above employees shall be computed in
accordance with the formula approved in F W Wool
worth Co 90 NLRB 289 (1950) plus interest as set forth
in Florida Steel Corp, 231 NLRB 651 (1977)
I shall also recommend that Respondent expunge from
its records any reference to their unlawful discharges to
provide written notice of such expunction to those em
ployees and to inform them that Respondents unlawful
conduct will not be used as a basis for further personnel
actions concerning them Sterling Sugars 261 NLRB 472
(1982)
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
edis
ORDER
The Respondent Columbia Textile Services Inc Pa
terson, New Jersey its officers, agents successors and
assigns shall
1 Cease and desist from
(a) Interrogating its employees concerning their mem
bership in or activities on behalf of Dyers Local 1733,
Amalgamated Clothing and Textile Workers Union,
AFL-CIO (Local 1733) or any other labor organization
(b) Threatening to close the shop if Local 1733 or any
other labor organization is selected as the collective bar
gaining representative of its employees
(c) Threatening to discontinue overtime normally
worked if Local 1733 or any other labor organization is
selected as the collective bargaining representative of its
employees
(d) Promising its employees improved benefits in their
working conditions to coerce them from selecting Local
1733 or any other labor organization as their collective
bargaining representative
(e) Granting its employees raises and bonuses to
coerce them from selecting Local 1733 or any other
labor organization as their collective bargaining repre
sentative
(1) Engaging in surveillance of its employees activities
on behalf of Local 1733 or any other labor organization
(g) Coercively forcing and requiring its employees to
join Local 560 International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization
(h) Reducing the normal overtime of its employees be
cause of their membership or activities on behalf of
Local 1733 or any other labor organization
(i) Changing the workshift of its employees because of
their membership or activities on behalf of Local 1733 or
any other labor organization
(1) Discharging and thereafter refusing to reinstate its
employees because of their membership in or activities
on behalf of Local 1733 or any other labor organization
(k) In any like or related manner interfering with, re
straining, or coercing its employees in the exercise of
their right to self organization, to form, join or assist
labor organizations to bargain collectively through rep
resentatives of their own choosing and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to re
fram from any or all such activities
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer to the employees set forth in paragraph 13 of
the conclusions of law full and immediate reinstatement
to their former or substantially equivalent positions of
employment without prejudice to their seniority or to
other rights and privileges previously enjoyed
(b) Make the employees, set forth above in paragraphs
11 and 13 of the conclusions of law whole for any loss
of earnings they may have suffered by reason of the dis
crimination against them in the manner set forth in the
remedy section of the decision
(c) Preserve and, on request make available to the
Board or its agents for examination and copying all pay
roll records, social security payment records, timecards
personnel records and reports, and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its place of business in Paterson New
Jersey copies of the attached notice marked Appen
dix 17 Copies of the notice on forms provided by the
16 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
" 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
COLUMBIA TEXTILE SERVICES 1053
Regional Director for Region 22 after being signed by Respondent to ensure that the notices are not altered de
the Respondents authorized representative shall be faced or covered by any other material
posted by the Respondent immediately upon receipt and (e) Notify the Regional Director in writing within 20
maintained for 60 consecutive days in conspicuous places days from the date of this Order what steps the Re
including all places where notices to employees are cus spondent has taken to comply
tomarily posted Reasonable steps shall be taken by the