Jacques Syl Knitwear, Inc.

National Labor Relations Board - Board Decisions

Feb 29, 1980

247 N.L.R.B. 1525 (N.L.R.B. 1980)

JACQUES SYL KNITWEAR, INC.: BIQUETTE, INC.
Jacques Syl Knitwear, Inc.; Biquette, Inc. and Local
162, International Ladies' Garment Workers'
Union, AFL-CIO. Cases 22-CA-8558, 22-CA-
8655, 22-CA-8698, 22-CA-8713, 22-CA-8897,
and 22-RM-553
February 29, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On September 28, 1979, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, as
elaborated upon herein, and to adopt his recommend-
ed Order, as modified herein.
We agree with the Administrative Law Judge that a
bargaining order is warranted in this case as a remedy
for the myriad of unfair labor practices, many of them
involving Respondent's president, which the Adminis-
trative Law Judge found. In Gissel Packing Co. v.
N.L.R.B., ' the Supreme Court stated that the test for
the issuance of a bargaining order is whether an
employer's unfair labor practices have so decreased
the chances of a fair election that the already
expressed desires of employees for representation are a
more reliable indication of free choice than an election
would be. Here, in the course of its campaign of unfair
labor practices, not only were Respondent's employees
faced with pervasive threats of plant closure,2 but
Respondent also made generalized threats to replace
permanently unfair labor practice strikers if they did
not abandon their strike.' Further, Respondent has
refused to reinstate the majority of these strikers
despite their unconditional offer to return to work.' By
395 U.S. 575. 614-615 (1968).
: 395 U.S. at 611, fn. 31; Pope Mainrenance Corporation, 228 NLRB 326
(1977), enfd. 573 F.2d 898 (5th Cir. 178).
· Daybreak Lodge Nursing and Convalescent IHomne Inc.. 230 NLRB 800
(1977). enfd. 585 F.2d 79 (3d Cir. 1978) (threats to permanently replace
workers if they went out on strike).
' Pope Maintenance Corporation. 228 NLRB 326. fn 2. Cf. Silton Tank
Company. 193 NLRB 209 (1971), enfd 467 F.2d 1371 (8th Cir 1972) (four
out of seven unit employees discharged).
* Daybreak Lodge Nurrsing and Convalescentl Home. Inc.. 230 NLRB 800,
fn. 3 (1977) (withholding of schedule wage increases because of organizational
efforts).
247 NLRB No. 191
these acts alone, Respondent has dissipated the
bargaining unit and has created, among its employees,
a general and well-grounded fear of retaliation for
concerted activity. In addition, Respondent has re-
fused to pay accured vacation pay to strikers,' offered
additional pay to strikers to abondon their strike,
created the impression of surveillance, interrogated
employees, unlawfully discharged five striking em-
ployees for alleged strike misconduct,' and assaulted
union organizers in the presence of employees. We
find that such conduct tends to undermine the Union's
majority status and, in this case, has made the
possibility of holding a fair representation election
extremely unlikely. We shall, therefore, adopt the
bargaining order recommended by the Administrative
Law Judge."
We also substitute the attached notice for that of the
Administrative Law Judge since the attached notice
more accurately parallels the Administrative Law
Judge's recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Jac-
ques Syl Knitwear, Inc., Biquette, Inc., West New
York, New Jersey, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph 2(b):
"(b) Offer to all striking employees who have not
returned to work reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges previously enjoyed, dismissing, if
necessary, any person hired since the beginning of the
strike on June 27, 1978. In addition, Respondent shall
make all of these employees whole, as set forth in the
section above entitled 'The Remedy,' for any loss of
earnings, including winter and summer vacation pay,
suffered as a result of the discrimination against
them."
I Eagle Material Handling. Inc.. a rubsidiary of Someret Tire Service. Inc..
224 NLRB 1529 (1976). enfd. 558 F.2d 160 (3d Cir. 1971) (offering of future
benefit package that would be "cadillac" of industry)
' Multi-Medical Convalescent and Nursing Center of TowfO,. 225 NLRB
429 (1976). enfd 550 F.2d 974 (4th Cir. 1977)} (unlawful discharge,. coercive
interrogations, and espionage campaign).
' The Administrative Law Judge found that the Union had obtained valid
authorization cards from a majority of the bargaining unit employees by the
end of the first week i July 1978. We agree with this finding. However. we
find that as of that time. the Union had obtained valid cards from 39 of the 75
unit employees, rather than from 41 of 74 unit employees as found by the
Administrative Law Judge
1525
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. 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
Our employees have a right to join and support
Local 162, International Ladies' Garment Work-
ers' Union, AFL-CIO, and we will not violate
any of our employees' rights under the National
Labor Relations Act.
WE WILL NOT coercively interrogate employ-
ees concerning union membership and activities.
WE WILL NOT threaten employees with dis-
charge, plant closure, or any other reprisal for
reasons of union membership and activities.
WE WILL NOT threaten employees with perma-
nent replacement if they do not abandon a strike.
WE WILL NOT warn employees of the futility of
becoming or remaining union members.
WE WILL NOT assault or otherwise intimidate
union organizers.
WE WILL NOT offer and promise employees
additional pay or other benefits to give up
participating in strikes or in any other protected
activities.
WE WILL NOT create the impression of, or
engage in, surveillance of union activities.
WE WILL NOT discharge or otherwise discrimi-
nate against employees for participating in union
or other protected activities.
WE WILL NOT refuse to pay accrued vacation
pay to employees for engaging in strike activity.
WE WILL NOT refuse to reinstate unfair labor
practice strikers upon their offer to return to
work.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights under Section 7 of the Act.
WE WILtI. offer to Aleida Diaz, Ondina Pineiro,
Rosa Martinez, Miriam Reyes, and Maria Colon
reinstatement to their former jobs or, if their jobs
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority and
other rights and privileges previously enjoyed,
and WE WILI. pay them for any loss of earnings
since July 14, 1978, including summer and winter
vacation pay, suffered as a result of the discrimi-
nation against them, plus interest.
WE WIL.. offer to all striking employees who
have not returned to work reinstatement to their
former jobs or, if their jobs no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority and other rights and
privileges previously enjoyed, and We Wll.l. pay
them for any loss of earnings, including winter
and summer vacation pay, suffered as a result of
the discrimination against them, plus interest.
WE WILL, upon request, recognize and bargain
collectively with Local 162, International Ladies'
Garment Workers' Union, AFL-CIO, as exclu-
sive representative of our employees in the
following appropriate unit and embody in a
signed agreement any understanding reached:
All full-time and regular part-time production
and maintenance employees including shipping
and receiving employees employed by Jacques
Syl Knitwear, Inc., and Biquette, Inc., at its
West New York, New Jersey, location, but
excluding all office clerical employees, profes-
sional employees, guards, and supervisors as
defined in the Act.
JACQUES SYI. KNITWEAR, INC; AND
BIQUETTE, INC.
DECISION
STATIE MINI 01O THE CASE
RAI.PH WINKI.IR, Administrative Law Judge: This is a
consolidated complaint and representation case. The charg-
ing party in the unfair labor practices phase of this
proceeding is Local 162, International Ladies' Garment
Workers' Union, AFL-CIO (Union); the petitioner in the
representation case is Jacques Syl Knitwear, Inc., and
Biquette, Inc. (jointly, "Respondent"). The General Counsel
issued the original complaint against Respondent on August
11, 1978, and he ultimately issued a third amended com-
plaint on February 6, 1979. Respondent filed answers to
these complaints denying, inter alia, that it had violated the
Act in the respects alleged.
In its representation petition filed on June 28, 1978,
Respondent asserted an appropriate unit of "all production
and maintenance employees including shipping and receiv-
ing employees" of Jacques Syl and Biquette with the usual
exclusions (office-clerical, etc.), and the petition further
stated that the Union had claimed representation for these
employees. By direction of the Regional Director, an
election was conducted in the aforedescribed bargaining
unit' on August 21, 1978. The eligibility date used in the
election was the payroll period ending July 8, 1978. The
election results showed that 21 votes were cast for the
Union, 24 votes were cast against the Union, and 36 ballots
were challenged. Respondent and the Union each filed
I find that such unit is an appropriate bargaining unit within Sec. 9(b) of
the Act.
1526
JACQUES SYL KNITWEAR, INC.; BIQUETTE. INC.
objections to conduct affecting the results of the election. In
a Supplemental Decision issued on November 29, 1978, the
Regional Director overruled Respondent's objections: he
also found that Objections 1, 3, 4, and 6 filed by the Union
(the Union had withdrawn other objections) were among the
unfair labor practice allegations of the second amended
complaint against Respondent and should therefore await
determination of those allegations. The Regional Director's
Supplemental Decision also sustained challenges to some
ballots and overruled challenges to others, and he also found
that five challenges required a hearing on factual issues and
that the determination of eight other challenged ballots must
await resolution of unfair labor practice allegations in the
outstanding complaint. The Regional Director advised the
parties in his Supplemental Decision that his rulings on
objections and challenges in the Supplemental Decision are
"final" under Section 102.78 of the Board's Rules and
Regulations unless the Board grants special permission to
appeal therefrom. Neither Respondent nor the Union sought
such appeal.
On December 15, 1978, the Regional Director issued an
order consolidating the representation case with the out-
standing unfair labor practices cases "for the purpose of
hearing, ruling, and decision by an Administrative Law
Judge, as to the status of the remaining 13 unresolved
challenged ballots . . . and the Union's Objections 1, 3, 4,
and 6 . . . as well as issues raised . . . in the .. . unfair
labor practice cases."
Hearing in this consolidated matter began on March 26,
1979, and closed on July 24, 1979. Upon the entire record,
including observation of the demeanor of witnesses and
consideration of briefs, I make the following:
FINDINGS OF FACT
I. RESPON1DENT
Jacques Syl and Biquette are New Jersey corporations
engaged in business at the same address in West New York,
New Jersey. Jacques Syl manufactures and distributes
children's garments and Biquette purchases and distributes
children's garments. Each is an employer engaged in
commerce within Section 2(6) and (7) of the Act.
Jacques Syl and Biquette are affiliated business enterprises
with common officers, directors, and stockholders. Jacques
Syl performs the manufacturing phase of the enterprise,
Biquette the shipping functions. Cirla Fridman is president
and owner of both companies, Francine Gruber is vice
president, and Suzanne Srour is secretary-treasurer. These
individuals operate both companies as a single, integrated
enterprise with a common labor relations policy. As indicat-
ed above, both companies togehter are referred to as
Respondent.
II. I'HEi I.ABOR ORGANIZATION
The Union is a labor organization within Section 2(5) of
the Act.
III. PROCi:DURAI. ISSUES
It is appropriate before addressing the merits of this case,
to discuss Respondent's contention that it was denied due
process because the hearing commenced in the absence of its
counsel, Godfrey P. Schmidt.
With the issuance of the third amended complaint in these
consolidated proceedings the Regional Director fixed March
5, 1979, as the date of the hearing. On or about February 20,
1979, Schmidt requested of the Regional Director that the
hearing be postponed until April 1979; he stated as reason
therefor that he was counsel for plaintiffs in an action before
the United States District Court for the District of New
Jersey (Cichorz, et al. v. Local 164, International Brother-
hood of Electrical Workers, Civil No. 74-1381), that Judge
Lawrence A. Whipple had peremptorily set that trial for
March 5, 1979, and that he (Schmidt) believed that the
Cichorz trial would last at least 2 weeks. By order dated
March 1, 1979, the Regional Director postponed the hearing
until I a.m. on March 26, 1979.
In attendance at the scheduled hearing place on March 26
were the General Counsel's trial attorneys (Maria E.
Balzano and Celeste J. Mattina), counsel for the charging
party (Gelade), the court reporter, a court interpreter, and
four prospective witnesses, two of whom Balzano said could
return another day, but the other two were present at great
inconvenience and might not be able to return. Neither
Schmidt nor his client was present, and they had not
appeared when I opened the hearing at 11:08 a.m. Balzano
then advised me that Schmidt had called her a week or so
earlier and had requested a further postponement purported-
ly because he was "tied up" with the Cichorz trial. Balzano,
who has no authority to grant postponements, advised
Schmidt that she did not believe the Regional Director
would grant Respondent another postponement for the
Cichorz matter but suggested that Schmidt submit a written
request to the Regional Director, and Schmidt said he would
do so. (The Board's Rules and Regulations, Sec. 102.16 and
102.24, require such motions to be "in writing.")
Balzano meanwhile learned that the Cichorz trial before
Judge Whipple had been recessed on March 22 through the
entire week of March 26. By Friday, March 23, the Regional
Office had not received a written request from Schmidt for
postponement and on that day Balzano called Schmidt to
discuss trial matters relating to the present hearing which
was scheduled to commence on March 26. Schmidt told
Balzano that he was "tied up in Judge Whipple's court" and
would not appear at the Labor Board hearing on March 26
and had advised his client not to appear and that he had
submitted a written request to the Regional Director for a
postponement. Balzano then told Schmidt that she under-
stood the Cichorz case to be in adjournment, to which
Schmidt replied that it was but that he had much prepara-
tion to do in connection with that recessed trial. Balzano
informed Schmidt that the Regional Director had not
received a written request for a postponement which
Schmidt had told Balzano he had sent, and Schmidt then
said he would send a telegraphic request to such effect that
same day (Friday, March 23). Balzano told Schmidt that she
did not believe the Regional Director would grant a
postponement at that late date, and she suggested that
1527
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schmidt request the Administrative Law Judge for a
postponement at the opening of this hearing on Monday,
March 26. Schmidt repeated that he would not appear at the
hearing. Balzano again suggested that Schmidt make his
request to the Administrative Law Judge on March 26,
whereupon Schmidt remarked that he was involved in
another "case" in Puerto Rico, but without indicating the
name or nature of the case or even that a trial was scheduled
in such purported case.
Returning now to events on the morning of Monday,
March 26: upon opening the record in this matter and being
advised of the above-described matters by Balzano, I
requested Balzano to inquire from Judge Whipple's office
concerning the status of the Cichorz trial. Balzano reported
back after such call that that trial was in recess until April 2.
This same morning (March 26) before the hearing began, the
Regional Director received the following wire sent by
Schmidt on March 23:
THIS WILL confirm my previous telephoned notice to
Ms. Balzano and my written notice to you dated March
13 1979 that I cannot appear for the trial of the
compliant against my clients Jacques Syl Knitwear Inc
and Biquette inc. i am on trial before judge whipple in a
lengthy case requiring many interruptions and much
research for trial purposes. judge whipple will confirm
this. i cannot give my attention to another trial while
that case is pending.
That same morning (Monday, March 26) in an envelope
postmarked March 23, the Regional Director also received a
copy of a letter from Schmidt bearing the date "March 13,
1979." Attached was a note from Schmidt to Balzano stating
that "Here is a copy of the letter sent by me on March 13,
1979 which you say you didn't receive." The "March 13"
letter read as follows:
I shall be unable to try the above case on behalf of the
Employer on March 26, 1979, because of my involve-
ment in the case of Cichorz et al. vs. Local 164 IBEW
(74 Civ. 1381) now on trial before Judge Lawrence A.
Whipple.
That trial, because of the interruptions caused by the
Federal Act expediting criminal cases, cannot be tried
continuously. In any event it will continue a number of
weeks beyond March 26, 1979. Since that case requires
much research even during the aforestated necessary
interruptions, I cannot give proper attention to any
other trial while the Cichorz case is pending before
Judge Whipple.
Counsel for the General Counsel called these communica-
tions to my attention and introduced them in the record.
I requested Balzano to call Schmidt's office to inquire
whether he intended to appear. Balzano reported back that
she called Schmidt's office and spoke with someone who
identified herself as "Evelyn Genovese" and who appeared
to Balzano to be Schmidt's secretary. Genovese told Balzano
that Schmidt was in Puerto Rico "on a case involving the
San Juan Hotel" and she also told Balzono that "she had
copies of letters to show that they had requested postpone-
ment two weeks ago" and "had given us [the Regional
Office] plenty of opportunities." at my request, Balzano
called Genovese again to inquire whether Schmidt would
appear at the present hearing the next day. Balzano made
the call and reported that Genovese this time said that
Schmidt represents several hotels in Puerto Rico, that
Schmidt was in conference in Puerto Rico that day (March
26) over a trial involving a hotel, that she (Genovese) did not
know the name of the case or in what court or before which
judge the trial was scheduled to be heard, that the trial
would begin on or about March 28, and that Schmidt would
not be returning to the New York area until Monday, April
2. (This was when the Cichorz trial before Judge Whipple
was to resume.)
I then called Respondent's office and spoke with Francine
Gruber, Respondent's vice president, following which I
stated on the record:
Let the records show that I spoke with a Mrs.
Gruber, an officer of the respondent in this case. I
explained the situation to her; that the trial was set for
this morning; that neither she nor respondent's attorney
was present. That everyone else was convened here, all
the attorneys, the witnesses, interpreter and I as well.
She told me that she had spoken to Mr. Schmidt on
either Thursday or Friday of last week and that he told
her that there would be no trial this morning.
I told Mrs. Gruber, in return, that to my knowledge
[neither] the regional office nor the judge's division had
granted any postponement beyond this morning and
that it seems as if she has been misinformed as to the
fact that there was a postponement.
I told her I felt very sorry about her situation,
however, there are two witnesses here today who were
here at great inconvenience to themselves and that
government had to operate and that these cases are as
important as any other cases.
I further told her I would take these two witnesses
today and that we would meet tomorrow morning at
9:30 and proceed with this case. And that I hoped either
she and an attorney would come to be present.
However, that I did intend to proceed with this case.
And other things were said, but I guess nothing of
any materiality as far as the pending procedural issues
in this case. I think I have advised the record and the
parties where we stand in this matter.
It was now 12:30 p.m. We recessed for lunch and shortly
after 1:30 p.m. the first of the two mentioned witnesses was
called to testify.
The hearing resumed the next morning (March 27, 1979)
at 9:30 a.m. Gruber appeared with an attorney, Miguel
Munoz. Munoz stated that he was not a labor lawyer and
not familiar with the case and that he was appearing at
Respondent's request for the sole purpose of requesting a
continuance of the hearing until Schmidt would appear.
Munoz offered no explanation for Schmidt's absence. I
denied the motion and proceeded with the hearing through
March 29, 1979. Gruber sat at counsel table with Munoz,
but the latter did not further participate in the hearing.
Gruber cross-examined some witnesses, and on March 28,
1979, she made a motion for separation of witnesses,
pursuant to Schmidt's telephonic suggestion to her from
Puerto Rico the previous night. The motion was granted.
1528
JACQUES SYL KNITWEAR, INC.: BIQUETTE, INC.
The General Counsel attorneys had practically completed
their case by March 29, 1979. However, I advised the
General Counsel that I would not close the record at that
time. Mindful of the April 2 resumption date of Schmidt's
Cichorz trial before Judge Whipple, I recessed the hearing
until April 16, 1979, so that Schmidt would have an
opportunity to present Respondent's case. Schmidt and his
client appeared on April 16 and 17, 1979; he made no
statement about his absence the week of March 26 or about
the hearing having commenced in his absence. April 16 and
17 were taken up with discussions in an effort to resolve the
case amicably, and the parties finally did execute and I
approved an all-parties settlement agreement purportedly
disposing of all outstanding representation and unfair labor
practice issues. For reasons and in circumstances explained
in my ruling and order of August 21, 1978, the settlement
agreement was set aside on July 3, 1979, and that same day I
directed that the hearing be reopened and resumed on July
24, 1979. Respondent filed an appeal with the Board on July
11, 1979, requesting in effect that the Board reverse my
ruling and order vacating the settlement agreement. The
Board denied such appeal by telegraphic order on July 23,
1979.
Respondent, meanwhile, had not requested a stay of my
reopening and resumption order pending its appeal. The
hearing accordingly reconvened at I I a.m. on July 24, 1979.
Balzano and Mattina were present for the General Counsel,
Gelade for the Union was present with a witness, the
reporter was present, and I was there. Schmidt and his client
did not appear, and I requested that Balzano attempt to
contact them by telephone. Balzano subsequently reported
that she twice dialed Schmidt's office, letting the phone ring
about 20 times, without anyone answering the phone on
either occasion. She then called Respondent and spoke to
Srour, Respondent's secretary-treasurer. Srour said that
Respondent had not received an answer to its mentioned
appeal, to which Balzano replied that no stay of the hearing
had been granted. (Respondent, to repeat, had not requested
that I postpone the resumption pending its appeal.) Srour
said that Balzano "had better" call Schmidt, because "I
don't think we're going to be there." And they were not
there. One hour after the scheduled time, the hearing finally
proceeded without Schmidt and his client, and the General
Counsel and the charging party concluded their submissions
and rested that day (July 24). Before the record was closed,
counsel for the General Counsel stated that she desired to
reserve an exhibit number for a document which was not
then at hand, but which would be supplied later on. By letter
dated August 2, 1979, with copies to all parties and their
counsel, the General Counsel enclosed the following letter
dated July 23, 1979, from E. C. Kurtz, supervisor ticket
control and custodian of records, Eastern Air Lines:
We have checked our reservation records for the
period March 23, to March 30, 1979 and the enclosed
copies of ticket 007-8334-759870 represents the only
record we have of a G. Schmidt from New York to San
Juan and return.
Flight coupon I was used on flight 929, scheduled to
depart New York at 10:15 P.M. on March 26, 1979.
Flight coupon 2 was used on flight 922, scheduled to
depart San Juan at 2:30 P.M. on March 30, 1979.
The General Counsel's letter of August 2, 1979, and the
Kurtz letter with enclosures are received in evidence as
General Counsel Exhibit 36.
Respondent's Contentions
Respondent contends that it was a violation of procedural
due process "for the ALJ to permit commencement of the
trial herein in the absence of Counsel for Respondent;
because (a) the latter should not have been required, in the
middle of a civil action (The Cichorz case) in the Federal
Court in Newark, to prepare and try the instant case; (b)
Counsel for the General Counsel and the Regional Director
arbitrarily refused Mr. Schmidt's request that these cases be
adjourned to a date after the completion of the Cichorz case;
and (c) Counsel for the General Counsel knew that Mr.
Schmidt had to appear before a Federal Court in Puerto
Rico during the week's pause in the Cichorz case."
Respondent contends that it was also a violation of
procedural due process "to rush the last day of trial on July
24, 1979, without proper and adequate notice to Respon-
dent's attorney who first saw the telegram [the Board's
telegraphic order of July 23, 1979] . . . on July 26, 1979,
because (a) fixing that last day of trial presented Respon-
dents with the Hobson choice of either seeking judicial
remedy in the District Court at the prohibitive price of
defaulting before the Administrative Law Judge, or hope-
lessly seeking an appropriate remedy from an ALJ who had
already improperly ruled against Respondents respecting the
settlement agreement at the price of waiving the civil action
instituted in the Federal Court. Such option amounted to
denial of access to the Courts and to denial of due process
under the Fifth Amendment. Ex parte Young, U.S. 123
(1908)."
Discussion
On the very morning of the March 26 hearing Respondent
counsel was asserting in his March 23 wire and "March 13,
1979" letter to the Regional Director that he needed a
second postponement because of the exclusive demands of
the Cichorz matter in New Jersey. Schmidt nevertheless
apparently devoted the week or most of the week of March
26 to an unrelated case in Puerto Rico. And when, on March
27, Munoz requested a continuance until Schmidt would
appear, Munoz offered no information concerning the case
in Puerto Rico which might provide or even suggest
reasonable basis for resolving Schmidt's conflict of engage-
ments in favor of his involvement in the Puerto Rican
matter. At no time on March 26 did Schmidt request the
undersigned or the Division of Judges before that date that
the hearing be postponed. And at no time in connection with
the scheduled resumption on July 24 did Schmidt request of
the undersigned that the resumption hearing be postponed to
await the Board's ruling on Respondent's appeal.
Postponements of proceedings are not a matter of right;
rather, they are to be either granted or denied upon
consideration of the inconvenience and possible unfairness to
other affected parties as against a claimed hardship of the
party making the request (N. L. R. B. v. Hijos de Ricardo Vela.
Inc., and Vela Distributing Corp., 475 F.2d 58, 61 (Ist Cir.
1529
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1973), enfd. 194 NLRB 377 (1971); N.L.R.B. v. Air Control
Products of St. Petersburg, Ic., 335 F.2d 245, 248 (5th Cir.
1964)), while keeping in mind that these proceedings must
proceed with "the utmost dispatch." N.L.R.B. v. American
Potash & Chemical Corp., 98 F.2d 488, 492 (91h Cir. 1938),
cert. denied 306 U.S. 643 (1939); N.L.R.B. v. Glacier
Packing Co., Inc., 507 F.2d 415, 416 (9th Cir. 1974). Unless
a postponement or continuance is improperly refused, it is
not a denial of due process for the Board to conduct its
hearing without the presence of a respondent or his
representative. N.L.R.B. v. Jones & Laughlin Steel Corp.,
301 U.S. 1, 25, 47 (1937); N.L.R.B. v. American Potash &
Chemical Corp., supra: N.L.R.B. v. Glacier Packing Co..
Inc., supra; Spiegel Trucking Company 225 NLRB 178, 1'9
(1976), affd. 559 F.2d 188 (D.C. Cir. 1977).
The reason the hearing in this case commenced on March
26 without Schmidt's presence and reconvened without him
on July 24 is that he chose not to appear on either occasion.
Not on March 26 or 27 or July 24 or at any other time in
this hearing was Respondent arbitrarily denied, in my
opinion, a timely and otherwise proper request for a
postponement or continuance of hearing. I accordingly
reject Respondent's due process contentions.
IV. UNFAIR ABOR 'RACTIICI:S
A. The Complaint
The complaint alleges that Respondent engaged in speci-
fied violations of Section 8(a)(1) of the Act and that it also
violated Section 8(a)(3) and (1) of the Act by discharging
five employees, by denying vacation pay to striking employ-
ees, and by threatening its striking employees with perma-
nent replacement if they did not cease their strike and return
to work and then permanently replacing and refusing to
reinstate these striking employees whom the complaint
alleges to have engaged in an unfair labor practices strike.
Alleging that the Union represented a majority of employees
in the described appropriate unit, the General Counsel also
contends that Respondent's unlawful conduct warrants a
Gissel ' bargaining order in addition to other appropriate
relief for the violations alleged.
B. The Organizing Campaign and Respondent's
Countermeasures
The Union, through its director of organization, Genaro
Rivera, and staff organizers, began organizing Respondent's
employees in May 1978, in which connection, among other
things, it distributed leaflets and union authorization cards.
During the following month the organizers engaged in these
activities on a daily basis at Respondent's plant and many of
the employees signed union authorization cards.
Respondent actively opposed its employees' organizing
efforts by a campaign of its own. Credible testimony
establishes that the principal actor in this connection was
Respondent's president, Cirla Fridman. The record thus
shows:
Fridman approached Rosa Bonilla at work on or about
June 14 and inquired whether Bonilla had signed a union
card. Then she told Bonilla that she had been informed that
Bonilla and Bonilla's mother (Gloria Vargas), also employed
by Respondent, were "collecting signatures to bring the
Union . . . into the factory." When Bonilla asked who had
told this to Fridman, Fridman replied, "Someone who tells
things to me."
Bonilla related the above conversation to Vargas. Vargas
thereupon asked Fridman who had said that Vargas was
soliciting for the Union. Fridman replied, "Gloria, I am glad
that you have told me this, because I know that you are one
of ours." On another occasion during that period, Fridman
approached Vargas and told her that "whoever wants a
factory with a union could leave and go to a factory which
had the union." According to Vargas' credible testimony,
Fridman also frequently stated in the work area "so that
everybody would hear it," that "even if it cost her a million
dollars, the Union wouldn't come into the factory."
Fridman approached Madeline Collazo at work in mid-
June and told the latter, "What does it seem to' you,
Madeline, what Aleida [Diaz] has done to me?" Fridman
continued that she had always treated Diaz well and had
given her "overtime" and "raises," and "now she has signed
the card for the Union." (Diaz was discharged a few weeks
later, as will be discussed.) Fridman added she was "very
upset" because she "didn't want any union in the factory."
Fridman approached and told Maria Colon in other
employees' presence at work in mid-June that "if anyone
tried to have a union in the factory, she would prefer to shut
down the plant." On another occasion during that period,
Fridman asked Colon whether she had signed a union card.
Fridman also remarked on this latter occasion that Aleida
Diaz should work elsewhere "if she wanted a factory with a
union."
Fridman approached Amanda De Gonzales at work in
mid-June and inquired whether the latter had signed a union
card. De Gonzales replied that she had not and Fridman
then urged De Gonzales not to let anyone convince her to
sign a card.
Fridman approached Pia Gallo at work in the presence of
other employees on or about June 22. Remarking that she
(Fridman) "know[s] everything that's happened in the
factory," Fridman inquired, "How did it go for you at the
[Union] meeting yesterday? Gallo asked "what meeting"
and Fridman replied that it was "the one you were going to
attend but was canceled." This was so. Fridman asked
whether Gallo thought the Union would pay her the $3 an
hour that "they are promising you." Fridman also accused
Gallo of bringing bread to her coworkers as a "bribe" to
them to sign union cards.
Fridman told Ondina Pineiro in the presence of other
employees at work in mid-June that she "did not want a
Union, and that before a Union came, she would close the
factory."
Fridman several times told an employee in Miriam Reyes'
presence at work in mid-June that the union people were "a
group of racketeers" and that if the Union came in she had
.S: L. R. R. v. Givvs Packin g C,.. In.. 95 U.S. 575 (1969).
1530
JACQUES SYL KNITWEAR, INC.; IQUETTE, INC.
"enough money to close the factory" and relocate it under
another name.
Fridman told Candelaria Fernandez and three other
employees at work in mid-June that they should not have
"anything to do" with the Union and that she would "shut
down" the factory if the Union came in.
C. The Srike
On or about June 22 and 23, 1978, various employees
recounted to Rivera, the union organization director, the
threats and other conduct of Fridman described above. It
was further reported to Rivera that these threats had made
employees fearful for their jobs and that the employees did
not want to be seen talking to the organizers and that they
therefore wanted the organizers "to stop coming around for
a while." Rivera assessed the situation with his staff and they
decided to call a strike to protest Fridman's threats. Rivera
had meanwhile informed some employees of the contemplat-
ed strike action.
On Tuesday, June 27, 1978, union agents appeared at
Respondent's premises with picket signs bearing the follow-
ing legend: "Workers of Jacques Syl Knitwear on Strike for
Unfair Labor Practices, Please Don't Cross the Picket line,
International Ladies' Garment Workers' Union, AFL-CIO,
Local 162." More than 30 employees joined the strike that
day and began picketing. That same day at the union office
Rivera advised the employees that they were striking to
protest Respondent's unfair labor practices and also to
obtain union recognition from Respondent. That same day
the Union filed its original unfair labor practices charge
against Respondent in this proceeding. The following day
Respondent filed its representation petition. The strike
lasted until September 15, 1978. Not all the employees
participated in the strike and Respondent meanwhile contin-
ued to operate.
D. Respondent's Conduct During the Strike
Vacation Pay. Respondent traditionally closes down its
production operations for one week during the summer and
it gives vacation pay for this week to employees having more
than one year's employment. (It gives another paid week of
vacation in the winter to employees with 5 years' employ-
ment.) The summer vacation week in 1978 had been
scheduled to begin on Monday, July 3. Respondent's
practice has been to give employees their vacation checks on
their last workday before their vacation. If, for example, an
employee did not work during the week before the vacation
week, she received her check on the last day before her
vacation that she did work. Striking employees advised
Rivera shortly after the strike began that they wanted their
vacation pay. Rivera went to Respondent's premises on June
30, 1978, and told a police officer there that he desired to go
into the plant to speak with Fridman about the vacation
checks. The officer said that Rivera should remain outside
and that he (the officer) would inform Fridman of Rivera's
request. The officer returned shortly and advised Rivera that
Fridman had told him that strikers "were not entitled to get
Sometime after the strike ended and after Respolndenl had discharged
Colon, Fridman also told Gilda l'ereira that Colon had "hurl" Fridman by
vacation pay." Fridman later came out of the building and
Rivera approached her saying that the employees were
entitled to vacation checks. Fridman replied, "Why don't
you pay them, they're on strike with you, you pay them."
Strikers were present at the time, and Fridman told them,
according to Pineiro's credible testimony, that "we didn't
have the right to vacation pay. because we had gone out on
strike, and to go to the Union to receive vacation pay." The
striking employees have not received their summer vacation
checks for 1978.
Respondent seeks to induce strikers to return. Fridman
contacted a number of striking employees by phone on or
about July 3, 1978, to persuade them to abandon the strike
and return to work. One such employee was Migdalia
Sanchez. Fridman also called Rosa Bonilla and Lourdes
Becerril and told them they would receive a raise in salary if
they returned. Fridman told Becerril that "the Union was
not going to come in" and that "we [the strikers] were going
to lose our jobs and that then we wouldn't have neither the
Union nor our jobs." (During the conversation with Beccr-
ril, Fridman also said that she was "very hurt" that Maria
Colon had gone out on strike instead of asking for a wage
increase and that she (Fridman) would have given it to her.
Colon is one of the five employees alleged to have been
unlawfully discharged.)' Fridman called and told Graciela
Cepeda that she would send an escort for Cepeda if the latter
was afraid to return and that Cepeda should "think it over
because I [Cepeda] was an older person, and it wouldn't be
easy for me to find a job"; Cepeda replied that she was not
afraid, but would not return during the strike. Fridman
offered double pay to Ondina Pineiro to work on July 4 and
said that Pineiro's refusal to work would cost her a job
"permanently." In a call to Mary Porta, Fridman asked
Porta why she had joined in the strike and Fridman offered
to give her double pay to work on July 4; Porta replied that
as a union member she would not go against the Union, to
which Fridman stated that "the Union will never get in" and
that Fridman had "more powerful" people who "would take
care or' the Union.
Assaults ol union representatives. Respondent hired 13
guards during the strike in June and July. These guards
escorted and transported nonstriking employees to and from
the plant. When delivery trucks approached the plant and
stopped at the picket line there, these guards would tell the
delivery people to cross the picket line as there was no strike
and that they (the guards) would unload merchandise if
drivers would not cross the picket line. These guards at
times carried golf clubs, bats, and other implements.
On or about July 3, 1978, union organizers Jimmy
Montanez, Roberto Gonzales, and Duilio Amaya arrived at
Respondent's premises. Some of the guards approached
these organizers and asked to speak to their supervisor,
Rivera. Rivera shortly drove up to the plant, and while he
was looking for a parking space, five of these guards
followed him in a car. One of the guards, named Mario, told
Rivera that he had an "interest" in the shop and that he
wanted Rivera to leave the shop alone. Rivera suggested that
they meet at another time, and they did on July 5. On this
latter occasion Mario told Rivera that he had a recognition
parlicipating in the strike dspite the fact that Fridman had helped Colon "o
much" ovser Ihe nlan ( ) ear, ol Colon's employ nle.
1531
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement and contract with Respondent and that he
wanted "to keep" the shop for a year. Mario did not identify
any labor organization he was affiliated with and Rivera told
him that he (Rivera) would not abandon the Union's
organizational efforts among Respondent's employees.
A union organizers' car bearing picket signs was parked
on a public street at Respondent's premises on July 3. Inside
the car were union organizers Gonzales, Amaya, and
Montanez. Four or five guards (one of them wearing a neck
chain inscribed with the name "Mario") came running
toward the car from inside the plant shouting, "mother
fuckers, get the hell out of here, we don't want to see you
anymore." These individuals then kicked and pounded the
car and broke the antenna of a walkie talkie held by Amaya.
This was witnessed by striking employees. Gonzales, who
was in the driver's seat, started the car and drove off. While
circling the block and returning to the plant, the organizers
were followed by guards in another car; the guards' car
pulled up in front of the moving union car and blocked it.
The guards stepped out of their car; one of them had a
blackjack, another threw an object at the union car, and a
third one (Mario) opened his jacket and reached for a pistol.
To elude the guards, Gonzales backed up the union car and
drove against traffic on a one-way street.
E. Further Events During the Strike; the Union
Discontinues the Strike
By letters dated June 28, 1978, but which were not mailed
until on or about July 13, Respondent notified five striking
employees that they were discharged as of June 28 for
alleged strike misconduct. These discharges will be discussed
later.
In July 1978, Respondent notified each of its striking
employees that "If you do not return by August 1st, 1978,
we will begin to replace you permanently by hiring workers
from outside . . ." And Respondent did hire some replace-
ments in July and August 1978.
By letter dated September 11, 1978, the Union advised
Respondent that it was discontinuing the strike "effective
Monday, September 18," and that it was thereby making an
"unqualified and unconditional" offer to return to work on
that date in behalf of all striking employees. The letter listed
the names of 37 employees in whose behalf the offer was
made. A substantial number of striking employees accord-
ingly reported at the plant on September 18. Respondent
offered reinstatement to five of the employees on that date,
to five more in October 1978, and to four in March 1979. So
far as the record shows, no other striking employees have
been reinstated. Respondent has hired 45 new employees
since the strike began on June 27, of whom 30 have been
hired since August 1, and 18 of these 30 have been hired
since September 18, 1978. The record also shows that during
October 1978, Respondent placed newspaper advertisements
soliciting applications for employment in unit positions.
Reyes also received another letter from Respondent dated June 2. 197g.
terminating her as of that date for assaulting two employees. Ismaria Miranda
and Olga Miranda She credibly testified that she had not assaulted or
threatened either of the Mirandas or anyone else. and here is il) other
testimony concerning such alleged assault.
F. The Discharges
As indicated above, Respondent discharged five employ-
ees for alleged strike misconduct. These employees were
Aleida Diaz, Ondina Pineiro, Rosa Martinez, Miriam Reyes,
and Maria Colon. Respondent's discharge letters to Marti-
nez, Pineiro, Reyes,' and Diaz stated as the reason for their
terminations that each had "violently assaulted" fellow
employee Dorinda Suarez on June 28, 1978; the letter to
Colon stated that Colon was discharged for having threat-
ened fellow employees Guiseppi Ferrulli and Lucretia
Ramon with "bodily harm and abusive language" on June
28, 1978. The five dischargees were on strike at the time; the
employees who were allegedly assaulted or threatened were
not.
Diaz, Pineiro, and Martinez were on the picket line with
other employees at Respondent's premises as Dorinda
Suarez and other nonstriking employees were leaving the
plant at the end of the workday on June 28. Suarez had
demonstrated her alliance with Respondent respecting the
strike and an animosity toward her striking coworkers.'
Suarez came out of the plant on that June 28 occasion,
swinging her handbag and shouting that the picketing
employees were "whores." Swinging her handbag in a
circular motion, Suarez struck Diaz in the face, knocking off
and breaking Diaz' glasses and causing Diaz to cover her
face with her hands to protect herself. Seeing Suarez thus
assault Diaz, Martinez dashed up and was also struck by
Suarez as Martinez attempted to hold Suarez' hand to
restrain Suarez from continuing to hit Diaz. One or two men
from the plant immediately then pulled Suarez inside. The
entire incident lasted a few seconds. Pineiro observed, but
was not in the immediate area of, the incident until Suarez
had gone back into the plant. Reyes was nowhere near the
area, being several blocks away from the plant at the time.
She later passed by the plant on her way home after being
informed of the incident, and while doing so Reyes was
arrested by a police officer who apparently had come to the
scene to investigate the incident. The officer took Reyes to a
police station where Suarez signed a complaint alleging that
Reyes had assaulted Suarez "by striking her with her
pocketbook which was being swung wildly." The following
day Suarez also signed similar complaints against Pineiro,
Martinez, and Diaz.
The Suarez complaints were heard before a magistrate in
North Bergen municipal court and the four defendants were
found guilty as charged.
Respecting Colon's discharge, there is no evidence that
she threatened either Ferruli or Ramon with "bodily harm
and abusive language."
G. Concluding Findings: Unfair Labor Practices
The record establishes, as the General Counsel contends,
that Respondent coercively interrogated employees concern-
ing union membership and activities, created the impression
of keeping employee's union activities under surveillance,
While passing the picket line as she was reporting for work on June 27.
Suarez remarked that she wished the strikers "would die." And on June 28.
she urged employee Alicia Ca;mposerdll It contlitue reporting fr work
despite the strike.
1532
JACQUES SYL KNITWEAR, INC.: BIQUETTE. INC.
threatened employees with plant closure and other reprisals
to discourage their union membership and activities, assault-
ed union organizers in the presence of striking employees
(Clear Lake Hlospital. 223 NLRB I. 7-8 (1976)), offered and
promised its employees additional pay to abandon the strike,
warned employees of the futility of union membership and
activities, and refused to pay its employees accrued vacation
pay because they engaged in a strike (N.L.R.B. v. Great
Dane Trailers. Inc.. 388 U.S. 26 (1967).) Further citation of
authorities is hardly necessary to show that all of such
conduct violated the Act. The record further establishes that
the strike beginning on June 27. 1978, was caused and
prolonged by Respondent's unfair labor practices (including
the unlawful discharge of the five employees hereinafter
found) and that it therefore was an unfair labor practices
strike. NA.L.R.B. v. Cast Optics 458 F.2d 398, 407-408 (3d
Cir.. 1972), cert. denied 409 U.S. 850 (1972). In July 1978,
Respondent also threatened its striking employees with
permanent replacement if they did not cease their strike and
return to work, and it did begin replacing them and refuse
the unconditional offer of most of them to return to work,
notwithstanding that the strike was an unfair labor practices
strike. Respondent thus further violated Section 8(a)(3) and
(I) of the Act by refusing strikers' unconditional offers to
return and it also violated the Act by threatening to replace
them unless they abandoned the strike and returned by
August 1, 1978. Mastro Plastics Corp., and French-American
Reeds Mfg. Co., Inc. v. N.L.R.B., 350 U.S. 270, 278 (1956):
A L.R.B. v. Cast Optics Corp., supra., and cases cited therein;
Accurate Die & Corp.. 242 NLRB 280 (1979): Ramonas
Mexican Food Products, 203 NLRB 663, 670 (1970), enfd.
531 F.2d 390(9th Cir. 1975).
This leaves the matter of the five discharges. The five
discriminatees were engaged in a protected strike and they
did not engage in any strike misconduct attributed to them
by Respondent. Even assuming, for discussion purposes
only, that Respondent believed in good faith that these
employees had engaged in such misconduct, Respondent
violated Section 8(a)(1) and (3) of the Act by discharging
them for such erroneous reason. ,.L. R.B. v. Burnup & Sims
Inc.. 379 U.S. 21 22 (1964); General Motors Corporation. 281
NLRB 472, 476-477 (1975), enfd. 535 F.2d 1246 (3d Cir.
1976). In determining whether Diaz, Martinez, Pineiro, and
Reyes participated in strike misconduct, I have, of course,
duly considered the fact of the guilty verdicts against them
in the municipal court proceedings. The record of such
proceeding was not introduced in evidence. Such verdicts are
not conclusive here, however, and the record in this case
overwhelmingly establishes that none of the five women
assaulted or threatened to assault Suarez or any other fellow
employee. N.L.R.B. v. Pacific Intermountain Express Com-
pany. 228 F.2d 170, 176 (8th Cir. 1955), cert. denied 351
U.S. 952 (1956); N.L.R.B. v. Western Meat Packers. Inc.,
368 F.2d 65, 70 (0th Cir. 1966); Hendon & Company, Inc..
197 NLRB 813, 819 (1972). In the circumstances it is
unnecessary to discuss, although I have considered, the
additional contentions advanced by the General Counsel
relating to the discharge and the dischargees' entitlement to
reinstatement and other relief, except to indicate that they
are independently meritorious. N.L.R.B. v. Thayer Co.. 213
F.2d 748, 755-757 (Ist Cir. 1956), cert. denied 348 U.S. 883
(1957); Local 833. International Union. United Automobile.
Aircraft and Agricultural Implement Workers of America,
(Kohler Co.) v. N.L.R.B.. 300 F.2d 699, 703-704 (D.C. Cir.
1962), cert. denied 370 U.S. 911 (1962); Coronet Casuals,
Inc.. 207 NLRB 304, 305 (1973).
V. REPRESENTIATION ISSUES
The representation matters requiring resolution here are
Union Objections , 3, 4, and 6, and challenges to the ballots
of James Garcia, Leenert Vermeer, Daniel Brown, Marianne
Sasek, Linda Woods, Ondina Pineiro, Aleida Diaz, Maria
Colon, Miriam Reyes, Rosa Martinez, Nelly Reyes, Virginia
Ortega, and Rosa Mercado. It is recalled that the election
was conducted on August 21, 1978, and that the eligibility
date was the payroll period ending July 8, 1978.
Objections. Union Objections 1, 3, 4, and 6 are as follows:
1. On or about June 30, 1978, and continuing to date,
the employer failed and refused to pay those employees
who had joined the strike their accrued vacation which
was due and payable on June 30, 1978, because of their
Union activities.
3. On or about July 12, 1978, the Employer discharged
its employees Ondina Pineiro, Aleida Diaz, Miriam
Reyes, Maria Colon, and Rosa Martinez because of
their Union activities.
4. On July 4, the Employer threatened employees with
reprisals if they engaged in Union activities.
6. During July 1978, the Employer threatened unfair
labor practice strikers with permanent replacement.
Having sustained unfair labor practices allegations to a
like effect, I accordingly also find merit in Union Objections
1, 3, 4 and 6. Challenges. Respondent maintains that Pineiro,
Diaz, Colon, Martinez. and Miriam Reyes were discharged
for cause and therefore ineligible to vote. The Union
contends that they were eligible because they had been
unlawfully discharged. Having found that these employees
had been discharged unlawfully, I find that they were
eligible to vote in the election conducted on August 21, 1978.
The Regional Director's Supplemental Decision of No-
vember 29, 1978, states that Ortega, Mercado. and Nelly
Reyes were hired in July 1978. The Union maintains that
these employees were hired to replace unfair labor practice
strikers and thus were ineligible to vote. Respondent
contends that they were permanent replacements for eco-
nomic strikers and therefore were eligible. Having found
that the strike was an unfair labor practices strike, I find that
Ortega. Mercado, and Nelly Reyes were "replacements for
unfair labor practice strikers" and therefore ineligible to
vote. Larand Leisurelies. Inc. 222 NLRB 838 (1976).
The Union maintains that Sasek and Woods were office
clericals and therefore not eligible to vote as within the
office-clerical exclusion from the unit; Respondent asserts
that they were warehouse employees and therefore within
the unit. Sasek and Woods are classified in company records
as "office" employees. Sasek was a billing clerk in an office
located in the warehouse building. Woods worked in the
main office and at times in a warehouse office: she
performed filing and also operated office equipment making
1533
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out invoices. Although they occasionally helped out in the
warehouse itself on an irregular basis, this was a very minor
portion of their duties. Sasek and Woods, I find, were office
clericals who were not eligible to vote.
The Union challenged Brown as a temporary and casual
summer employee. Respondent claims that Brown was
employed on a regular basis. He was a college student and
was employed in the warehouse for about 2 months during
the summer of 1978. He returned to college and did not
work after August 1978, and there is no showing that he
would continue his employment with Respondent. I sustain
the Union's challenge to Brown's eligibility. Sandyes Stores.
Inc.. 163 NLRB 728, 729 (1967); Crest Wines and Spirits.
Ltd.. 168 NLRB 754 (1967).
The Union challenged Garcia's eligibility on the ground
that, as a designer, he is a professional and does not have a
community of interest with production and maintenance
employees in the unit; the Union asserts that he is also
ineligible as a supervisor and confidential employee. Respon-
dent contends that Garcia falls within the production and
maintenance category and that he is neither a confidential
employee nor a supervisor. His payroll classification is
"designer," and he testified that he is the "assistant
designer." He has completed technical studies at an architec-
ture school and has completed two designing courses and
earned 70 credits at Fashion Institute of Technology. His
working hours are flexible and his yearly salary is $30,000.00
as opposed to the average hourly wage of approximately
$3.00 paid to unit employees. Garcia devotes most of his
time to making patterns from ideas given him by a designer
who does such work for another company as well. I find that
Garcia occupies a professional category and that, in any
event, his duties and interests "are dissimilar from those of
the production employees" as to warrant his exclusion from
the unit. J. P. Stevens & Company. Inc., 123 NLRB 758, 760
(1959).
The Union would exclude Vermeer from the unit as a
guard, a supervisor, and a confidential employee. Respon-
dent maintains he is none of these. Vermeer opens the plant
before work and closes it at the end of the work day, he
"watches" the employees while in the plant, he punches and
signs employees' timecards when the cards "are not all
right," he inspects the handbags of employees leaving the
plant, and he has requested an unauthorized individual to
leave the plant. I find that Vermeer is within the "guard"
exclusion and was therefore ineligible to vote. Walterboro
Manufacturing Corp.. 106 NLRB 1383 (1953); Louis F. Dow
Company. III NLRB 609, 610 (1955); Wonderknit Corpora-
tion, 123 NLRB 53, 56 (1959).
In summary: I sustain the challenges to Vermeer, Garcia,
Brown, Sasek, Woods, Ortega, Mercado, and Nelly Reyes.
And I overrule the challenges to Pineiro, Diaz, Colon,
Martinez, and Miriam Reyes.
I shall recommend that the ballots of Pineiro, Diaz,
Colon, Martinez, and Miriam Reyes be opened and counted
together with the ballots cast by all other eligible voters as
previously determined in the Regional Director's Supple-
mental Decision of November 29, 1978, and that a revised
tally of ballots be issued. If the Union wins the election, I
further recommend that the appropriate certification be
issued. However, if the results show that the Union did not
obtain a majority of valid ballots case, then I would
recommend that the election be set aside on the basis of
Union Objections 1, 3, 4, and 6 which I have found to be
meritorious.
CONCI.USIONS OF LAW
I. Respondent (Jacques Syl and Biquette, respectively) is
an employer within Section 2(6) and (7) of the Act.
2. The Union is a labor organization within Section 2(5) of
the Act.
3. All full-time and regular part-time production and
maintenance employees including shipping and receiving
employees employed by Jacques Syl and Biquette at West
New York, New Jersey, but excluding all office clerical
employees, professional employees, guards, and supervisors
as defined in the Act, constitute an appropriate unit for the
purposes of collective bargaining within Section 9(b) of the
Act.
4. Respondent has violated Section 8(a)(1) of the Act by
interrogating employees concerning membership and activi-
ties in the Union, threatening employees with discharge and
plant closure and other reprisal for reasons of union
membership and activities, assaulting union organizers in
the presence of employees, threatening unfair labor practices
strikers with permanent replacement if they did not cease
their strike and return to work by August 1, 1978, warning
employees of the futility of becoming or remaining members
of the Union, offering and promising employees additional
pay to give up their strike and return to work, and creating
the impression of surveillance of employees' union activities.
5. Respondent has violated Section 8(a)(3) and (1) of the
Act by discharging Maria Colon, Aleida Diaz, Ondina
Pineiro, Rosa Martinez, and Miriam Reyes for union
membership and activities; refusing to pay employees ac-
crued vacation pay because of their union membership and
activities; and refusing to reinstate unfair labor practices
strikers upon unconditional request to return to work.
6. The aforesaid unfair labor practices affect commerce
within Section 2(6) and (7) of the Act.
7. Union Objections 1, 3, 4, and 6 are sustained in Case
22-RM-533 and warrant setting aside the election of August
21, 1978.
8. Challenges to the ballots of Pineiro, Diaz, Colon,
Martinez, and Miriam Reyes are overruled.
9. Challenges to the ballots of James Garcia, Leenert
Vermeer, Daniel Brown, Marianne Sasek, Linda Woods,
Nelly Reyes, Virginia Ortega, and Rosa Mercado are
sustained.
THF REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of the Act, I shall recommend that
it cease and desist therefrom and take certain affirmative
action in order to effectuate the policies of the Act.
The conventional remedy for unlawful discharges is
reinstatement and backpay, and the Board holds that
backpay for strikers discharged during a strike begins
running from the date of their discharge, as well. Abilities &
Goodwill, Inc., 241 NLRB 27, (1979); Lien Chemical Co..
1534
JACQUES SYL KNITWEAR. INC.: BIQUETTE. INC
241 NLRB 403 (1970). The backpay directed as to Pineiro,
Diaz, Colon, Martinez, and Miriam Reyes will therefore
begin running from July 14, 1978, the date that each was
notified of her discharge. Unfair labor practice strikers are
entitled to return to their jobs upon unconditional applica-
tion therefor, and 35 strikers (including the aforenamed five
discriminatees and those listed on Appendix B attached
hereto) made such application, effective September 18, 1978.
[Appendix B omitted from publication.] It has been found
that Respondent unlawfully refused to take back most of
these strikers. The conventional relief in this situation
requires that Respondent reinstate those strikers whose
unconditional application Respondent has not granted and
to make all strikers whole for earnings lost since September
18, 1978, including those strikers who were permitted to
return at a later date. Losses of earnings will also include all
summer and winter vacation payments to which strikers are
entitled from the date of the strike (June 27, 1978). All
backpay shall be computed in the manner prescribed in F:
W. Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977).'
It is recalled that the General Counsel also seeks a Gissel
remedy. During the first week of July 1978, there were 74
employees in the aforedescribed appropriate bargaining unit.
This figure includes unfair labor practices strikers and
excludes all replacements for such strikers (see Larand
Leisurelies. Inc.. supra). and also excludes those individuals
as to whom challenges have been sustained. The record
establishes that by the first week of July 1978. 41 or a
majority of the 74 unit employees had designated the Union
as their bargaining representative. Respondent's conduct.
related above, flagrantly violated employee rights under
Section 8(a)(1) and (3) of the Act, and I find without need
for further explication, that there is impelling justification
for a bargaining order in the circumstances of this case.
N.L.R.B. v. Gissel Packing Co.. supra: Jim Baker Trucking
Company. 241 NLRB 121 (1979); Hendon & Company. Inc..
197 NLRB 813, 819 (1972). 1 consider such bargaining order
appropriate whether or not a revised tally of ballots will
show the Union to have won the election of August 21, 1978.
Cf. Pope Maintenance Corporation. 228 NLRB 326, 348
(1977); The Great Atlantic & Pacifc Tea Company. 230
NLRB 766 (1977). 1 accordingly conclude that at all times
since July 8, 1978, the Union has been and it continues to be
the exclusive bargaining representative of the employees in
the above-described appropriate unit within Section 9(b) of
the Act. Trading Port. Inc.. 219 NLRB 298, 300-301 (1975).
Upon the foregoing findings, conclusions, and the entire
record, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
' The list inadvertently contains the name of Nerys Acevedo who returned
to work on August 26. 1978. Guillermina Camejo also appears on h list.
However. as noted in the Regional Director's supplemental reprtl of
November 29. 1978, Camejo had been disabled and had not worked for
Respondent since December 1977 and the parties agreed in the representation
case that a challenge to her ballot should be sustained on the ground that on
the election date (August 21. 1978) she had no reasonable expectanc of
returning to work. I have therefore omitted their names from Appendix B
ORDER,
The Respondent, Jacques Syl Knitwear. Inc., and Bi-
quette, Inc., West New York, New Jersey, and its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Coercively interrogating employees concerning union
membership and activities.
(b) Threatening employees with discharge plant closure.
or any other reprisal for reasons of union membership and
activilties.
(c) Threatening employees with permanent replacement if
they do not abandon a strike.
(d) Warning employees of the futility of becoming or
remaining union members.
(e) Assaulting or otherwise intimidating union organizers.
(f) Offering and promising employees additional pay or
other benefits to give up participating in strikes or in any
other protected activities.
(g) Creating the impression of, or engaging in, surveillance
of union activities.
(h) Discharging or otherwise discriminating against em-
ployees for participating in union or other protected activi-
ties.
(i) Refusing to pay accrued vacation pay to employees for
engaging in strike activity.
(j) Refusing to reinstate unfair labor practice strikers upon
their offer to return to work.
(k) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights under Section 7
of the Act.
2. Take the following affirmative action:
(a) Offer to Aleida Diaz, Ondina Pineiro. Rosa Martinez.
Miriam Reyes, and Maria Colon reinstatement to their
former jobs or to substantially equivalent positions if their
jobs no longer exist, without prejudice to their seniority and
other rights and privileges, and make them whole as set
forth in "The Remedy" section above fior any loss of
earnings since July 14, 1978, including summer and winter
vacation pay, suffered as a result of the discrimination
against them.
(b) Offer to all employees on Appendix B, except to those
presently in its employ, reinstatement to their former jobs or
to substantially equivalent positions if their jobs no longer
exist, without prejudice to their seniority and other rights
and privileges. dismissing, if necessary to effectuate such
reinstatement, any person hired since the beginning of the
strike on June 27, 1978. In addition, Respondent shall make
all of these employees whole, as set forth in "The Remedy"
section above, for any loss of earnings, including winter and
summer vacation pay, suffered as a result of the discrimina-
tion against them.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
'See, generally. tvis Plumnhing & lharing Co.. 138 NLRB 716 (1062).
' in the event no exceptions are filed as provided by Sec. 102.4h of the Rules
and Regulations of the National Labor Relationsl Board. the findings.
conclusions, and recommended Order herein hall. a provided in Sec. 102 48
of the Rules and Regulations, be adopted h) the B4Sard and become its
findings. conclusion. and Order. and all objections thereto shall be deemed
waived fior all purposes.
1535
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due and the right of
reinstatment under the terms of this Order.
(d) Upon request, recognize and bargain collectively with
Local 162, ILGWU, AFL-CIO, as exclusive representative
of its employees in the following appropriate unit and
embody in a signed agreement any understanding reached:
All full-time and regular part-time production and
maintenance employees including shipping and receiv-
ing employees employed by Jacques Syl Knitwear, Inc.,
and Biquette, Inc., at its West New York, New Jersey,
location, but excluding all office clerical employees,
professional employees, guards, and supervisors as
defined in the Act.
(e) Post at its plant and warehouse facilities in West New
York, New Jersey, copies in both English and Spanish of the
attached Notice marked Appendix C and mail such copies to
each of its employees, including all employees on Appendix
' In the event that this Order is enforced by a judgement of a United States
Court of Appeals, the words in the notice reading "Posted by) Order of l'hc
National Labor Relations t1oard" hall read "Posted Pursuant to a Judgment
B.' Copies of said notice, on forms provided by the Regional
Director for Region 22 of the Board, after being duly signed
by Respondent, shall be posted by it immediately upon
receipt thereof, and be maintained for 60 consecutive days,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have been
taken to comply herewith.
Ir I IS FURTHER RF.COMMI:NI)II) that Case 22-RM-553 be
remanded to the Regional Director for the purpose of
opening and counting, together with all other ballots, the
ballots to which challenges have been overruled and that he
issue a revised Tally of Ballots. It is also recommended that
he issue the appropriate certification if the Union wins the
election, but that he set aside the election results if the Union
does not obtain a majority of valid votes cast.
of the United States Court of Appeals Enforcing a Order of the National
I abor Relations Boardl" ,
1536