Don'T Stop

National Labor Relations Board - Board Decisions

Jun 28, 1990

298 N.L.R.B. 961 (N.L.R.B. 1990)

DON'T STOP 961
Adno Fashions , Inc., d/b/a Don't Stop and New
York Joint Board, International Ladies' Gar-
ment Workers' Union. Case 2-CA-23151
June 28, 1990
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make whole William Gonzalez for any
loss of pay he may have suffered because of our
discrimination against him , with interest.
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 3, 1989, Administrative Law Judge
Steven Davis issued the attached decision . The Re-
spondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Adno Fashions, Inc., d/b/a Don't Stop,
New York, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order as modified.
1. -Substitute the following for paragraph l(b).
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
2. Insert the following as paragraph 2(d).
"(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
3. Substitute the attached notice for that of the
administrative law judge.
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 refuse to reinstate ,economic strik-
ers who have not been permanently replaced.
WE WILL NOT in any like or related -manner
interfere with, restrain, or coerce you in the exer-
ADNO FASHIONS, INC., D/B/A DON'T
STOP
Richard Heller, Esq ., for the General Counsel.
Todd A. Gabor, Esq ., of Rockville Centre, New York, for
the Respondent.
Lester Kushner, Esq ., of New York, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Pursuant
to a charge and a first amended charge filed on Novem-
ber 4 and November 21, 1988,1 respectively, by New
York Joint Board, International Ladies' Garment Work-
ers' Union (Union), a complaint was issued against Adno
Fashions, Inc. d/b/a Don't Stop (Respondent) on Janu-
ary 17, 1989.
The complaint alleges essentially that certain employ-
ees of Respondent engaged in a strike, and on about Sep-
tember 7 four employees made an unconditional offer to
return to work, which was refused. The complaint fur-
ther alleges that from about September 13 to about Sep-
tember 28, Respondent employed Elvis Delgado as a re-
placement worker.
Respondent's answer denied the material allegations of
the complaint, and set forth certain affirmative defenses.2
On May 18, 1989, a hearing was held before me in
New York City. Upon the entire case, including my ob-
servation of the demeanor of the witnesses and after con-
sideration of tht; brief filed by General Counsel, I make
the following3
FINDINGS OF FACT
1. JURISDICTION
Respondent, a domestic corporation, having a place of
business at 262 West 38th Street, New York, New York,
is engaged in the import and nonretail sale of women's
and unisex apparel. Annually, Respondent sells and ships
from its facility products valued in excess of $50;000 di-
rectly to points outside New York State. Based upon the
above I find that Respondent is an employer engaged .in
' All dates hereafter are in 1988 unless otherwise stated
General Counsel moved to stoke that part of Respondent's answer
which requested that Respondent be "paid for fhe costs of this action to-
gether with attorney's fee " As General Counsel correctly notes in his
motion to strike, such a request, if treated as an application for fees under
the Equal Access to Justice Act, is premature. Moreover, in view of my
'findings and conclusions set forth herein , such an award is not warranted
3 Certain obvious errors in the transcript should be noted. Respondent
admitted certain allegations of the complaint, and did not "omit" them,
and certain statements attributed to me were actually made by General
counsel . See Tr. p 12
298 NLRB No. 144
962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
H. LABOR ORGANIZATION STATUS OF THE UNION
Respondent denied knowledge of the Union's labor or-
ganization status. Bayard Faithfull, an organizer em-
ployed by the Metro organizing department of the
Union, testified that the Joint Board is the regional rep-
resentative of five or six different local unions in the
New York area. He further stated that the Union repre-
sents about 200,000 members, half of whom are repre-
sented by the Joint Board. He added that the Union rep-
resents employees with respect to salary and benefits in
various segments of the garment industry.
Based on the above, and in view of the many cases in
which the Union has been certified by the Board, I find
and conclude that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's Due Process Claim
At the hearing, Respondent presented no witnesses or
evidence. At the start of the hearing, Respondent's attor-
ney, Todd Gabor, requested a continuance so that he
could bring in his chief witness, Ofer Levy. I denied the
request for a continuance. Counsel for General Counsel
stated that he had subpoenaed Levy to appear at the
hearing. Gabor, in seeking a continuance, stated that
Levy had not received the subpoena and thus was not
aware that his presence was required at the hearing.
However, Gabor also stated that he had spoken to Levy
the night before the hearing. Accordingly, inasmuch as
Gabor was aware of the date of the hearing and had
spoken to Levy the evening before, he could have asked
him to come to the hearing.
This reason for Levy's failure to appear, the alleged
nonreceipt of the subpoena, is disingenuous for several
reasons. First, the complaint, which was issued on Janu-
ary 17, 1989, set forth May 18, 1989, as the date for hear-
ing, which was the actual date the case was heard. In ad-
dition, the complaint named Levy as the sole actor in the
commission of the unfair labor practices. Respondent's
answer, dated January 24, 1989, and filed by Gabor,
stated that Levy met with the striking employees, he in-
formed them that there was insufficient work, and he
told them that if and when business increased he would
rehire them. The answer also placed in issue the date the
alleged offer to return to work was made. General Coun-
sel alleged that it took place on September 7. Respond-
ent's answer stated that a meeting with Levy occurred
on September 14.
Thus, Respondent was placed on notice, since January
17, 1989, that (a) a hearing would be held on May 18,
1989, (b) Levy's conduct was at issue, and (c) the critical
date at,which the alleged offer to return to work was
made was within Levy's knowledge.
During the hearing I suggested several times to Gabor
that he call Levy and attempt to obtain his presence
since it appeared that the hearing would close that day.
Gabor was unable to have Levy come to the hearing.
The real reason for Levy's unavailability and refusal to
appear was made known later in the hearing. Levy was
meeting with a very large prospective account, Mandee
Shops, an appointment he had been working on for a
long time. According to Gabor, Levy had a year of very
poor sales, and he hoped to obtain an order of hundreds
of thousands of dollars from Mandee. Levy made a busi-
ness decision that the benefit to his firm of his staying at
the office and meeting with that customer outweighed
the detriment to his firm of his failure to appear at the
hearing and losing $800-the amount allegedly claimed
by General Counsel as backpay. I denied the request for
a continuance.
There was no showing when Respondent first made
the appointment with Mandee Shops. All that we know
is that Respondent had been attempting for a long time
to obtain such an appointment. The likelihood is that
such a major business appointment would have been
made some time prior to the hearing. No requests for
postponement of the hearing date had been made prior
to the day of the hearing. Under these circumstances,
considering that Respondent was on notice for 4 months
of the date of the hearing and the need for Levy's ap-
pearance, and the fact that he chose not to be present at
the hearing because it was his considered business judg-
ment that his presence at the hearing was less important
than a meeting with a major customer, I reaffirm my
denial of Respondent's request for a continuance. Quebe-
cor Group, 258 NLRB 961 fn. 1 (1981); Greenpark Care
Center, 236 NLRB 683 fn. 3 (1978).
B. The Facts
In the summer of 1988, Union Representative Faithfull
met with five employees of Respondent. They asked that
the Union represent them. The five employees were Wil-
liam Gonzalez, Amicle Josma, Edwin Matos, Claudio
Santiago, and Russell Shasky.
Thereafter, on August 22, the employees went to Re-
spondent's office and asked of Dan Ranoy that the Union
be recognized to represent them. Ranoy, who Faithfull
believes is the controller of Respondent, asked them to
leave the office.
The employees immediately began to picket outside
the Respondent's showroom and warehouse. They pick-
eted continuously until late October. They have not
worked for Respondent since August 22.
On Labor Day, September 5, the employees marched
in the Labor Day parade. That day they met with Faith-
full and they discussed the possibility of offering to
return to work. The following day, Faithfull spoke with
Jeff Hermanson , the Union's director of organization.
Both representatives agreed that the employees should
attempt to return to work, and the employees were ad-
vised to do so.
Employee Gonzalez stated that on September 7, he,
Josma, Matos and Santiago visited Respondent's show-
room in the afternoon, and asked to speak to Ofer Levy,
its general manager.4 They were told by a secretary that
4 Respondent admitted that Levy is Respondent's general manager and
its supervisor within the meaning of Sec 2(11) of the Act.
DON'T STOP
they needed an appointment to speak with him, and that
they could return at 5 p.m. They left and returned to the
picket line. At about 4:30 p.m. Gonzalez saw Levy on
the street and asked if they could meet at that time be-
cause Gonzalez had to go to school. Levy agreed and
four employees-Gonzalez, Josma, Matos, and Santiago
followed Levy to the showroom where they spoke to
Levy in his office.
Gonzalez started the conversation by telling Levy that
the men have decided to return to work. Levy said that
he had not replaced any of them, adding that he was
awaiting a shipment after the Jewish holidays, and that
they would be the first to be hired because they are
good workers who are familiar with the work. Gonzalez
asked how many would be taken back. Levy responded
that he would not hire all of them back, adding that he
would call them when he received the shipment, since he
did not need them now. The men then left and returned
to the picket line where they told Faithfull what had
happened.
The following day, September 8, the men again told
Faithfull about their conversation with Levy and he took
notes of their conversation.5
Lester Kushner, the Union's attorney, testified that the
following day, September 9, he was informed by Faith-
full that on September 7 the strikers had offered to
return to work. Kushner asked if he had sent a telegram
confirming that offer, and Faithfull said that he had not.
Kushner asked him to come to his office with one or
more of the strikers and they would prepare a telegram.
Faithfull offered to meet with Kushner on Monday, Sep-
tember 12, but Kushner said that he would not be in the
office due to Rosh Hashanah, a Jewish holiday. They
agreed to meet on Tuesday, September 13.
On September 13, Faithfull, Gonzalez, and Matos went
to Kushner's office and told him what had occurred at
the meeting on September 7. Kushner drafted a telegram,
but had a question concerning its language. He met with
his colleague the following morning and sent the tele-
gram on September 14. The telegram is as follows:
This is to repeat our continuing unconditional
offer to return to work. As we told you on Septem-
ber 7 1988 when you informed us that business was
slow and you had not hired replacements for us we
are ready to go to work immediately or as soon as
you call us back. In the meantime we reserve our
right to continue to protest our substandard condi-
tions and the company's refusal to recognize our
union.
5 Gonzalez stated that the typewritten statement made by Faithfull is
inaccurate in that it states that the conversation took place at Respond-
ent's 38th Street location whereas it actually occurred at the showroom
on Broadway. The statement also contains a paragraph attributed to
Gonzalez, whereas Levy made the comments therein "No. We are just
slow As you can see we have no replacements for you I will not
hire anyone else." These errors in the typewritten version do not affect
the credibility of Gonzalez The location of the meeting is not of critical
importance Moreover, Respondent's answer admits that a meeting was
held, but disagrees as to the date of the meeting The paragraph attrib-
uted to Gonzalez is clearly in error in that only Levy could have made
the statements about hiring, etc
963
William Gonzalez, Amicle Josma, Edwin Matos
and Claudio Santiago. International Ladies Garment
Workers Union Legal Dept.
The complaint alleges that on or about September 13,
Respondent employed Elvis Delgado to perform certain
warehouse work at its facility, which work was previ-
ously performed by employees Gonzalez, Josma, Matos,
and Santiago.
Delgado's first day of work was September 13. Re-
spondent's attorney stipulated that after reviewing Re-
spondent's payroll records he did not see the name Elvis
Delgado appearing prior to the week ending September
16, and that the first day of such payroll period is Sep-
tember 13.
Respondent's affirmative defenses, in relevant part, are
that:
(1) On or about September 14, Ofer ]Levy met
with the striking employees at which time he in-
formed them that there was not sufficient work to
warrant reinstating them to their former positions of
employment, and that if and when business in-
creased he would rehire them.
(2) Elvis Delgado was employed prior to the
striking employees' demand for reinstatement.
Analysis and Discussion
It is well established that economic strikers are entitled
to immediate reinstatement upon an unconditional offer
to return to work, provided their positions have not been
filled by permanent replacements. Laidlaw Corp., 171
NLRB 1366, enfd. 414 F.2d 99 (7th Cir. 1969), cert.
denied 397 U.S. 920 (1970).
I credit the testimony of Gonzalez, and the corrobo-
rating testimony of Faithfull and Attorney Kushner, that
Gonzalez and other employees met with Levy on Sep-
tember 7. Thus, Gonzalez gave detailed reasons why he
remembered the date-it was 2 days after he marched in
the Labor Day parade, the first one he had participated
in. Although Faithfull was not at the meeting, he met
with the workers immediately after their talk with Levy.
Similarly, Kushner credibly testified that he was told by
Faithful on September 9 that the men had made an un-
conditional offer to return to work on September 7. Al-
though Respondent's answer claims that a meeting oc-
curred on September 14, no evidence was presented as to
that. Moreover, despite rigorous cross-examination of
Gonzalez his testimony that the meeting occurred on
September 7 could not be shaken.
Having found that the meeting between Levy and the
strikers took place on September 7, I further find that at
that time they made an unconditional offer to return to
work. Thus, Gonzalez testified that he told Levy that the
men had decided to return to work. Levy responded that
he could not use them now, but that he was awaiting a
shipment, and would call them when it arrived. Thus,
the request made by Gonzalez was an unconditional
offer to return to work. It was so understood by Levy
who replied by telling them that he would call them
when he received the shipment.
964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In addition, on September 14 the Union, in behalf of
the four strikers made an unconditional offer to return to
work. Thus the telegram stated that "this is to repeat our
continuing unconditional offer to return to work."
Respondent was therefore obligated to reinstate the
men on their unconditional offer to return to work, pro-
vided that they had not been replaced by permanent re-
placements. Respondent's payroll records indicate that
Elvis Delgado began work on September 13. His name
does not appear on any prior payroll records. Thus, no
replacement employees had been hired at the time of the
strikers' September 7 offer to return to work.
Even if September 14 is accepted as the date of the
meeting, as alleged by Respondent, the strikers would be
entitled to immediate reinstatement on their uncondition-
al offer of that date. Thus, Respondent has not shown
that Delgado was hired as a permanent replacement.
Tile, Terrazzo & Marble Contractors Assn., 287 NLRB 769
(1987); Hansen Bros., 279 NLRB 741 (1986).
I accordingly find and conclude that by failing to rein-
state the economic strikers on their unconditional offer
to return to work, Respondent violated Section 8(a)(3)
and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent, Adno Fashions d/b/a Don't Stop, is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. New York Joint Board, International Ladies' Gar-
ment Workers' Union, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By failing and refusing on September 13, 1988, to
reinstate, or offer to reinstate, certain unfair labor prac-
tice strikers, where they had not been permanently re-
placed by other employees, the Respondent thereby
committed unfair labor practices in violation of Section
8(a)(3) and (1) of the Act.
4. The above-described unfair labor practices are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
which will effectuate the policies of the Act.
General Counsel, at the hearing, and in his brief, stated
that inasmuch as replacement Elvis Delgado was only
employed for 3 weeks, he is seeking backpay, but not re-
instatement for that period of time for only one striker,
William Gonzalez. Accordingly, having found that Re-
spondent has failed and refused to reinstate William Gon-
zalez from September 13, 1988, for a period of 3 weeks, I
recommend that Respondent make William Gonzalez
whole for any loss of earnings he may have suffered by
reason of Respondent's discrimination against him. Back-
pay is to be computed in the manner set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), and New Horizons
for the Retarded, 283 NLRB 1173 (1987). See generally
Isis Plumbing Co., 138 NLRB 716 (1962).
On these findings of fact and conclusions of law and
on the entire record, I make the following recommend-
ed6
ORDER
The Respondent, Adno Fashions, Inc. d/b/a Don't
Stop, New York, New York, its officers, successors, and
assigns, shall
1. Cease and desist from
(a) Discouraging membership in New York Joint
Board, International Ladies' Garment Workers' Union,
or any other labor organization, by refusing to reinstate,
or offer to reinstate, economic strikers who have not
been permanently replaced by other employees.
(b) In any other like or related manner interfering
with, restraining, or coercing employees in the exercise
of their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole William Gonzalez for any loss of pay
he may have suffered as a result of Respondent's unlaw-
ful refusal to reinstate him from September 13, 1988, for
3 weeks, in the manner set forth in the remedy section of
this decision.
(b) Preserve and upon 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 determine the amount' of backpay due under
the terms of this recommended Order.
(c) Post at its facilities on West 38th Street, New York
City, and at its showroom on Broadway in New York
City, copies of the attached notice marked "Appendix."7
Copies of the notice, on forms provided by the Regional
Director for Region 2, after being signed by Respond-
ent's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are, not altered, defaced, or
covered by any other material.
6 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
7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "