K.G. Knitting Mills

National Labor Relations Board - Board Decisions

Dec 21, 1995

320 N.L.R.B. 374 (N.L.R.B. 1995)

374
320 NLRB No. 38
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 United Production Workers Union, Local 17–18 is the Intervenor
in this proceeding.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We adopt the judge’s finding that Alfredo Leonardo Larrea is an
agent of the Respondent. Chairman Gould agrees with the judge that
Larrea is also a statutory supervisor and, in addition to the reasons
stated by the judge, relies on Manager Singer’s uncontradicted testi-
mony that each evening he and Larrea decide which operators
should get which work, that Larrea is in charge of the plant for 2-
1/2 hours in the morning before Singer arrives, and that Larrea in-
forms employees of the work assignments before Singer arrives.
Members Browning and Cohen find it unnecessary to pass on wheth-
er Larrea is a supervisor.
3 In the absence of exceptions, we adopt, pro forma, the judge’s
recommendation that Petitioner’s Objections 1, 4, 5, and 8 be over-
ruled, that the challenge to the ballot of Julio DeJesus be overruled,
and that the challenges to the ballots of Judith Katz, Teresa Robles,
and Norma Flores be sustained.
4 We agree with the judge that the Respondent violated Sec.
8(a)(1) by impliedly conditioning a future job for an employee’s
spouse on his support for Local 17–18. We find it unnecessary to
decide whether the Respondent’s conduct also constituted a violation
of Sec. 8(a)(3).
5 For the reasons set forth by the judge, Chairman Gould would
adopt the judge’s finding that Fusco is a supervisor.
6 For the reasons stated by the judge, Member Browning would
adopt her recommendation that the challenges to the ballots of these
four employees be sustained.
K.G. Knitting Mills, Inc. and International Ladies’
Garment Workers’ Union, AFL–CIO.1 Cases
29–CA–17386, 29–CA–17492, 29–CA–17579,
29–CA–17869, 29–CA–17874, 29–RC–7500, and
29–RC–7568
December 21, 1995
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On May 11, 1995, Administrative Law Judge Elea-
nor MacDonald issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel and the Petitioner filed answering
briefs.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions,3 as modified below, and to adopt the rec-
ommended Order.4
1. The judge found that Louis Fusco is a supervisor
under Section 2(11) of the Act and sustained the chal-
lenge to his ballot. We disagree for the following rea-
sons. There is no evidence that Fusco, who works in
the Respondent’s shipping department, has the author-
ity to hire, fire, lay off, recall, promote, or discipline
employees or effectively to recommend these actions.
Nor is there evidence that he has the authority to grant
time off, assign overtime, assign work, adjust em-
ployee grievances, or evaluate employees. Neverthe-
less, the judge found that Fusco is a supervisor be-
cause he has a key to the factory, he opens up the fa-
cility in the morning, he ‘‘watches everything’’ until
Manager Singer comes in, and he deals with the trucks
that come into the plant. The judge also relied on the
fact that shipping department employees believe that
Fusco gives orders in the department.
Contrary to the judge, we find that the record fails
to show that Fusco is a statutory supervisor as defined
by the Act. He possesses no indicia of Section 2(11)
supervisory authority. Nor is there evidence that he ex-
ercises the independent judgment the Act requires for
a finding of supervisory status. In our view, the Gen-
eral Counsel and the Petitioner have not sustained their
burden of showing that Fusco is a supervisor. Accord-
ingly, we overrule the challenge to his ballot, and shall
order that it be opened and counted.5
2. The judge found that the challenges to the ballots
of Avram Deutsch, Ileana Green, Riva Kivale, and
Hilda Weiss should be sustained on the grounds that
they each enjoy a special status. Citing Dublak Corp.,
307 NLRB 1138, 1166–1172 (1992), the judge found
that these employees do not share a sufficient commu-
nity of interest with the unit employees to warrant their
inclusion in the unit. We disagree with the judge’s
conclusion, and find that they should be included in
the unit.
We find Dublak, supra, distinguishable. The employ-
ees in question in that case all had leadperson or other
special duties and performed production work only in
special situations. In contrast, the four employees ex-
cluded by the judge, here, all exclusively perform unit
work. Deutsch, Green, Kivale, and Weiss all strictly fit
within the unit description, they perform unit work,
and they perform the same work as is performed by
unit employees. We find that the facts that these four
employees receive a salary and do not punch a time-
clock, receive different health insurance benefits from
unit employees, adjust their hours to suit their own
convenience, and require less supervision than other
unit employees are inadequate bases for their exclusion
from the unit. Accordingly, we overrule the challenges
to their ballots, and shall order that they be opened and
counted.6
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, K.G. Knitting Mills, Inc.,
Brooklyn, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
375K.G. KNITTING MILLS
1 On July 20, 1994, the above-captioned cases were consolidated
with Case 29–CA–18141, and the hearing was ordered to be re-
opened on October 12, 1994. On that day, the parties settled Case
29–CA–18141. On October 14, 1994, the hearing was again closed
and Case 29–CA–18141 was severed from the above-captioned
cases.
2 At the hearing, the General Counsel withdrew the allegations
stated in pars. 25(a) and (b) and 26 relating to Norma Flores because
she was out of the country and would not return to testify.
3 Certain errors in the transcript are noted and corrected.
4 The factory occupies the second and third floors of a building
in Brooklyn, New York.
DIRECTION
It is directed that the ballots of Avram Deutsch,
Ileana Green, Riva Kivale, Hilda Weiss, and Louis
Fusco be added to those that are to be opened and
counted by the Regional Director pursuant to the sec-
tion of the judge’s decision entitled ‘‘Direction.’’
IT IS FURTHER DIRECTED that if the revised tally of
ballots reveals that the International Ladies’ Garment
Workers’ Union, AFL–CIO has received a majority of
the valid ballots cast, the Regional Director shall issue
a certification of representative. If, however, the re-
vised tally shows that that Union has not received a
majority of the ballots cast, the Regional Director shall
set aside the election and conduct a new election when
he deems the circumstances permit the free choice of
a bargaining representative.
Elaine Robinson-Fraction, Esq., for the General Counsel.
Dorothy Rosensweig, Esq. (Kaufman, Naness, Schneider &
Rosensweig, P.C.), of Jericho, New York, for the Re-
spondent.
Ira Cure, Esq. (Lewis, Greenwald, Kennedy, Clifton &
Schwartz), of New York, New York, for the Charging
Party.
Douglas Isaacson, of Brooklyn, New York, for the Interve-
nor.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in Brooklyn and New York, New York, on
7 days between March 14 and June 7, 1994.1 The consoli-
dated complaint issued on February 10, 1994, alleges that
Respondent engaged in certain violations of Section 8 (a) (1),
(3), and (4) of the Act.2 Respondent denies that it has vio-
lated the Act. In the representation case, a representation
election was conducted on June 4, 1993. The vote was 23
votes cast for Petitioner ILGWU, 28 votes cast for Intervenor
Local 17–18, and no votes cast against participating in a
labor organization. There were 22 challenged ballots, a num-
ber sufficient to affect the results of the election. The parties
filed various objections, and Petitioner’s Objections 1, 3, 4,
5, 8, and 10 were consolidated for hearing. Challenges to the
ballots of Luis Fusco and Julio DeJesus on the basis of their
alleged supervisory status, to the ballots of Judith Katz, Juan
Antorio Nunez, and Teresa Robles on the basis of the true
identity of the individuals who voted, to the ballots of Avram
Deutsch, Ileana Green, Kivale Riva, and Hilda Weiss on the
basis of their alleged special status, and to the ballots of
Norma Flores, Olga Garcia, Ardelia Felipe, Virginia
Acevedo, Virginia Fuentes, Levi Lopez, Maria Gil,
Maximina Soriano, and Graciela Barrera on the issue of their
temporary or permanent layoff are also at issue.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel, the Respondent and the
ILGWU in November 1994, I make the following3
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation with its principal
place of business in Brooklyn, New York, performs knitting
and sewing of garments and related services under contract
with various clothing manufacturers. Respondent annually
performs services valued in excess of $50,000 for enterprises
outside of New York State or for enterprises in New York
State, each of which enterprise is directly engaged in inter-
state commerce and meets a Board standard for the assertion
of jurisdiction exclusive of indirect inflow or indirect out-
flow. Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, and that the International Ladies’
Garment Workers’ Union (ILGWU) and the United Produc-
tion Workers Union, Local 17–18 are labor organizations
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent’s factory employs about 85 employees during
the busy season; there are far fewer workers when business
is slow. Many of the employees are Spanish speaking. Al-
though the record is not clear, it appears that there is a sew-
ing department, a parts department, a knitting department,
and a shipping and packing department. The sewing depart-
ment is by far the largest; it employs 50 to 60 employees
during the busy season and about 10 to 15 when work is
slow. The principals of Respondent are Alexander Kauftheil
and Joseph Singer, and do not speak Spanish. They commu-
nicate with their many Spanish-speaking employees through
certain bilingual employees.
B. Supervisors and Agents of Respondent
Alexander Kauftheil is the president of Respondent. He is
responsible for sales, design, the knitting department, the
parts department, and he deals with buyers. Kauftheil’s office
is on the second floor of the factory; he works from 8 a.m.
to 6 or 7 p.m., or even later.4 Joseph Singer is the vice presi-
dent of Respondent and is identified as the owner. Singer
works from 9 or 9:30 a.m. until 6 or 6:30 p.m. He has an
office on the third floor of the factory building and he is the
manager of the sewing department. The sewing department
includes workers who cut the knit fabric, workers who sew
the sweaters on various types of machines, and workers who
repair, clean, press, and pack the finished sweaters. There is
no dispute that Kauftheil and Singer are managers, super-
visors, and agents of Respondent. There is a controversy over
376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Larrea is often referred to by various witnesses as Leo or
Leonardo. His name is occasionally misspelled in the transcript as
‘‘LaRaya.’’
6 Vargas, an outspoken activist on behalf of the ILGWU at the fac-
tory, was one of General Counsel’s chief witnesses here.
the General Counsel’s allegation that Alfredo Leonardo
Larrea, Louis Fusco, and Julio DeJesus are supervisors
and/or agents of Respondent.
Larrea, who is paid by the hour, testified that he has been
employed as a floor boy in the sewing department for 10
years.5 Larrea arrives at the factory at 7 a.m. each day. He
places bundles of cut fabric along with patterns and thread
in baskets next to the work stations so that they can be made
into sweaters, he transports bundles from station to station so
that successive operations can be performed to produce a fin-
ished product, he cleans the floor, he picks up threads, and
he ties garbage boxes together. The cutters put the style
numbers on the bundles of work and Singer tells Larrea what
price to put on the tickets. There is no serious claim that
Larrea hires or fires employees, nor that he imposes dis-
cipline or gives raises. However, Larrea is Spanish-speaking
and he is the person who interprets between Singer and the
Spanish speaking employees who work on the third floor in
the sewing department. Larrea himself testified that if em-
ployees are going to be late or absent, they tell him in Span-
ish so that he can communicate the information to Singer in
English. According to Larrea, Singer decides if the employ-
ees will be granted permission to absent themselves or to
come to work late. Larrea maintained that Singer decides
which employee will work on a particular machine perform-
ing a particular task and that Singer informs him of the deci-
sion so that he can tell the employee where to work. Singer
decides each night what work will go to the various employ-
ees, and Larrea executes the orders in the morning. Singer
does not arrive at the factory until 9 or 9:30 a.m., and if a
problem arises, Larrea must wait for Singer to appear and
cannot make decisions in his absence. Larrea informs Singer
when an employee is absent so that Singer can replace the
absent worker. Singer decides whether employees will work
overtime and Larrea communicates his decision to the Span-
ish-speaking employees. Similarly, Singer decides which em-
ployees will be laid off and which recalled; Larrea makes the
telephone calls to recall employees when instructed to do so
by Singer. Larrea testified that the factory used to employ
foremen from Italy and Argentina and that these people
taught him his job, but he denied that he is a foreman: Sing-
er is in charge now. Although Larrea is not a mechanic, he
has learned to make minor repairs to the machines by ob-
serving the mechanics who are called in to perform repairs.
Larrea used to be a member of Local 17–18, but since 1991
or 1992, he has not had dues deducted from his wages.
Larrea did not vote in the election.
Singer testified that Larrea works from 7:30 a.m. to 6 p.m.
daily and that Larrea punches a timecard. Singer himself usu-
ally arrives at the shop at 9 a.m. and leaves at 6 or 6:30 p.m.
Singer testified that every evening he tells Larrea what bun-
dles to prepare for the employees to work on the next morn-
ing. But Singer also testified that when he talks to Larrea at
night, ‘‘we decide which operators should get which work.’’
Singer instructs the employees about their duties, but if they
speak only Spanish, then Larrea is called to translate. Singer
stated that Larrea does not hire employees nor discipline
them; if an employee must be reprimanded or discharged,
Singer tells Larrea what to tell the worker. Singer maintained
that only he and not Larrea can decide which machine an
employee should work on and that only he can change an
employee’s assignment. If there is to be a layoff, Singer de-
cides who is to be let go and Larrea communicates the deci-
sion to the Spanish-speaking employees. Singer decides
which employees are to be recalled, and Larrea informs those
who are Spanish speaking. Only Singer can decide if an em-
ployee is to work overtime. Singer stated that if an employee
wishes to be late or absent from work or to leave early,
Larrea tells him about it and Singer decides whether to grant
permission. When Spanish-speaking employees have ques-
tions or problems they go to Larrea first and then Larrea
speaks to Singer about the matter. Singer testified that he
spends little time in his office; most of the time he is on the
shop floor going from one machine to another to check if the
work is done well, and overseeing packers, pressers, cleaners,
and other employees. During the busy season, Singer may be
responsible for the work of 50 to 60 employees. Singer de-
nied that Larrea is a floor manager. Even though Singer does
not get to the shop until 9 a.m., he maintained that only he
is in charge of the employees. Any problems that arise in the
early morning at the factory must await his arrival. Singer
testified that if workers are not getting along they tell Larrea
and he tells Singer. Then Singer tells Larrea what to do.
Both Larrea and Singer acknowledged that Larrea in-
formed Singer of the employees’ activities on behalf of the
ILGWU. Larrea testified that he told Singer that Elfega
Vargas and Teofila Garcia were talking about the ILGWU.
The two women spoke in Spanish and they talked in such
a manner that anyone could hear; Larrea had known for
years that they supported the ILGWU. Singer testified that
before 1993, Larrea had reported to him about Vargas’ talk
on behalf of the ILGWU. In 1991 and 1992, Singer had ob-
served Garcia handing out papers and talking to other em-
ployees about the ILGWU, and Larrea was always telling
Singer about these activities. Singer denied asking Larrea
about the employees’ union activities.
Elfega Vargas’ testimony about Larrea’s duties and author-
ity confirmed the testimony of Larrea and Singer in many re-
spects.6 Vargas testified that Singer runs the factory and that
Larrea gives instructions to employees after he has spoken to
Singer. For example, Vargas testified that she sees Larrea
speak to Singer and then inform an employee to stay and
work overtime and that she sees Larrea speak to Singer and
then tell an operator which machine to work on. Larrea com-
municates to employees concerning their work assignments
and their requests for time off during the day. Vargas has
never seen Larrea discipline an employee. But, she has ob-
served that when Larrea is upset he uses foul language to the
employees. For example, on one occasion when Vargas was
working on a buttonhole machine that she believed was bro-
ken, she repeatedly asked Larrea to fix it and Larrea repeat-
edly told her that he had repaired it. Larrea told her to use
the machine to make the buttonholes and then he said to an-
other employee that ‘‘this old fucking woman did them all
wrong.’’ Employee Teofila Garcia testified that Larrea as-
signs work and gives instructions to employees. He spends
a lot of time talking to Singer during the day and he distrib-
377K.G. KNITTING MILLS
7 I shall not rely on any of Salazar’s testimony herein and thus I
deem it unnecessary to discuss that testimony. 8 Apparently, this was a subpoena.
utes bundles of work to the employees. Garcia stated that she
has asked Larrea for time off and informed him if she would
be late. Employee Rosario Lydia Salazar also testified about
Larrea’s duties and responsibilities, but I shall not rely on
her testimony as I have found that it is generally full of con-
tradictions.7
The parties stipulated that no dues were deducted and re-
mitted to the Union on behalf of Larrea from at least Sep-
tember 1992.
Based on the credited testimony described above, it is
clear that Larrea gets his instructions from Singer. However,
Larrea arrives at the factory at 7 a.m. to prepare the bundles
of work for employees based on his conversation the night
before with Singer where the two men ‘‘decide which opera-
tors should get which work.’’ From the time the sewing de-
partment employees come to the shop at 8 a.m. until Singer
arrives at 9 or 9:30 a.m., Larrea is the only one in charge
of the machine operators. He tells them what work to do and
which machines to work on. If an employee plans to be late
or absent, Larrea takes the telephone call and relays the in-
formation to Singer. If problems arise during Singer’s ab-
sence, the employees must talk to Larrea about them. For
many of the employees, Larrea is the one who relays to them
all the instructions from management and all decisions con-
cerning overtime, layoffs and recalls. If Larrea were not
found to be a supervisor of the sewing employees, there
would be a gross disproportion between the 50 to 60 employ-
ees and the only admitted supervisor, Vice President Singer.
I find that Larrea responsibly directs the employees and that
he uses some independent judgment in carrying out his du-
ties within the meaning of Section 2(11) of the Act. Dadco
Fashions, 243 NLRB 1193, 1194 (1979). I find also that
Larrea is an agent of Respondent. As acknowledged by Re-
spondent, Larrea is the person who communicates on behalf
of management with the employees who cannot speak
English. Larrea is their only source of information and in-
structions. The employees observe Larrea speaking to Singer
and then Larrea comes and tells them what goods and ma-
chines to work on, when to work, when to go home, and
when to come back to work. When Larrea spoke to them,
Respondent’s employees would reasonably believe that
Larrea was ‘‘reflecting company policy and speaking and
acting for management.’’ Ella Industries, 295 NLRB 976
(1989); Cream of the Crop., 300 NLRB 914, 917, (1990).
Julio DeJesus testified that he works on a knitting ma-
chine. He knows how to fix his machine. When the factory
is busy there are four knitters and when the shop is not busy
there are three knitters. DeJesus stated that Alexander
Kauftheil is the ‘‘boss’’ who tells the knitters what to do.
Since Kauftheil speaks only very little Spanish, DeJesus
translates Kauftheil’s instructions for the Spanish-speaking
knitters and helps Kauftheil with these employees: appar-
ently, all but one of the knitters at the shop speak Spanish.
DeJesus testified that the others do not ask him if they wish
to take a day off or if they will be late or absent, and
DeJesus said that he does not tell the others what to do.
DeJesus, who has been employed by Respondent since 1977,
punches a timecard. He joined Local 17–18 in the 1980s and
he receives vacation pay in lieu of taking the vacation pro-
vided by the collective bargaining agreement. For the last 8
or 9 years, he has received a $150 bonus at the end of the
year. The parties stipulated that Respondent regularly deducts
dues from DeJesus’ pay and remits the sums to the Union.
I do not find that the record here supports a finding that
DeJesus is a supervisor of Respondent. However, I do find
that DeJesus is an agent of Respondent when he performs
translations for Respondent so that information and instruc-
tions may be transmitted to its Spanish speaking employees.
As discussed in Cream of the Crop, supra, Respondent regu-
larly communicates with its non-English speaking employees
through DeJesus and this is a standard method of commu-
nication at the factory.
Louis Fusco is one of three people who have keys to the
factory and he usually unlocks the door in the morning. Ac-
cording to Singer, Fusco watches everything that happens
and everything that has to be done until Singer’s arrival at
9 or 9:30 a.m. Furthermore, Fusco is in charge of handling
any trucks that come to the factory. The parties stipulated
that Respondent regularly deducts dues from Fusco’s pay and
remits the sums to the Union. Elfega Vargas identified Fusco
as the shipping room supervisor; she stated that Fusco orders
products and gives instructions. On the basis of Fusco’s pos-
session of keys to the factory and on the basis of Singer’s
testimony that Fusco is responsible for everything that has to
be done and everything that happens at the factory before
Singer’s arrival, I find that Fusco is a supervisor of Respond-
ent.
C. The Election Campaign
Elfega Vargas began organizing on behalf of the ILGWU
in 1989. During 1992 and 1993 she attended union meetings
regularly. Vargas testified that in April 1993, Larrea told her
on a Friday afternoon that it was time to go to the meeting.
She believed that he was referring to the union meeting. On
May 5, 1993, Vargas attended a representation hearing at the
Regional Office. She had not informed any supervisor that
she would be absent from work, and when she returned to
the factory she gave a paper to Larrea.8 Larrea told Vargas
that he was not there for that, and then he waved the paper
in front of all of the employees. Larrea was upset, according
to Vargas. Later, Larrea gave Vargas some sweaters on
which she was to put buttonholes, but Vargas told him that
the buttonhole machine was broken. Larrea replied that he
had fixed the machine and he yelled at Vargas. She kept re-
turning to Larrea to say that the machine was broken and
Larrea kept repeating that it was fixed. Finally, Vargas heard
Larrea say that she had gotten the buttonholes all wrong. Ac-
cording to Vargas, Larrea later told Vargas that she was on
his blacklist and he told Vargas and Teofila Garcia, ‘‘these
are going to sleep soon.’’ Garcia did not confirm Vargas’
testimony on this latter point although Garcia did testify at
great length about other matters relating to Larrea and the
election campaign. Garcia has been an active supporter of the
ILGWU at the plant since 1989. She did not attempt to hide
her activity on behalf of the Union and she openly discussed
her views with other employees during breaks in the work-
day. Garcia testified that Larrea told her that he knew who
attended the ILGWU meetings and that he had a videotape
of such a meeting. According to Garcia, she went to the
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 All of the employees identified the speaker at this meeting as a
Jewish man wearing traditional religious garb.
10 The promise of a raise was not alleged as a violation in the
complaint here.
hearing on May 5 and tried to give Larrea the paper she re-
ceived there. Garcia testified that Larrea said he could not
take it because he was eating. An hour later when she gave
him the paper, he read it out loud. After this incident, Larrea
stopped talking to Garcia except when he had to give her
work. Larrea testified that he knew that Garcia, Vargas,
Santos Ortiz, and Rosario Salazar went to a conference at the
Regional Office and returned to the factory with yellow pa-
pers. Larrea stated that he was not given the yellow papers
by the employees, that the workers went to Kauftheil with
the documents and that he did not read these yellow papers
out loud in front of other employees. Larrea denied that his
attitude toward the employees who had attended the meeting
changed after they returned to the factory. He denied making
the statements attributed to him by Vargas and Garcia. I
credit Larrea concerning these matters. The testimony of
Vargas and Garcia describing the incidents is not convincing
and I shall not rely on it.
Vargas testified that on June 4, 1993, DeJesus made an an-
nouncement over the factory microphone in English and
Spanish asking all employees to come to the back. About 35
employees gathered there, including Larrea and Louis Fusco;
DeJesus translated a speech given in English by a Jewish
man.9 The man said he was representing the Company. He
told the employees not to be fooled by the ‘‘other union’’;
the ‘‘other union’’ was from the street while Local 17–18
gave the employees everything. If the employees voted for
the ILGWU the factory would be closed and the employees
would have to fly, whereas with Local 17–18 there would be
a lot of work. Teofila Garcia testified to much the same ef-
fect, except that she said the man was a representative of
Local 17–18. Garcia stated that she had seen the man in the
factory before but that she had never seen him in the offices
of Local 17–18. Santos Ortiz, a presser at the factory, testi-
fied that in June 1993, Julio DeJesus announced that there
would be a meeting. At the meeting, a Jewish man spoke and
Julio translated; the man told the employees that he rep-
resented the Company and he said that the employees should
not vote for a union from the streets, but that they should
vote for a union that they knew. The speaker said that he
would see to it that they received a raise of about $10 per
week. DeJesus did not testify concerning this preelection
meeting. I credit the testimony of Vargas, Garcia, and Ortiz
that shortly before the election, the employees were called to
a meeting during working time where a person who identi-
fied himself as a representative of the company instructed the
employees to vote for Local 17–18 and not to vote for the
ILGWU, told the employees that there would be no work
and the factory would close if they voted for the ILGWU but
that there would be work if they retained Local 17–18 and
promised the employees a raise if they voted for Local 17-
18.10 The employees were summoned to the meeting and the
speaker’s remarks were translated into Spanish by DeJesus,
an agent of Respondent who was regularly used to commu-
nicate instructions to the Spanish-speaking employees. Super-
visors Larrea and Fusco were present. I find it insignificant
that the individual employees who testified about this meet-
ing did not agree in every detail about who was at the meet-
ing or what exact words were used by the speaker. It is sig-
nificant, however, that DeJesus who was called by Respond-
ent as a witness here, did not deny any of the testimony
given about the meeting. Moreover, Larrea did not deny that
he was at the meeting and he did not contradict any of the
witnesses who testified about the content of the meeting. Nor
did anyone else on behalf of Respondent deny that the meet-
ing was held during working hours, that DeJesus used the
microphone to call people to the meeting, nor that the meet-
ing took place in the circumstances described by the various
witnesses. I find that the Respondent violated Section 8(a)(1)
of the Act by threatening to close the factory if the employ-
ees voted for the ILGWU.
Santos Ortiz, a presser, testified that before he went to the
preelection conference at the Regional Office, Singer and
Larrea asked him if he had to attend. According to Ortiz,
Singer spoke in English and Larrea translated his words into
Spanish. Singer told Ortiz not to say anything bad about the
Company. Singer asked Ortiz which Union he would vote
for; when Ortiz replied that he would vote for the ILGWU,
Singer told him that the ILGWU ‘‘didn’t look for another job
for [Ortiz].’’ Because Singer was upset, Ortiz said he would
vote for Local 17–18. Ortiz testified that the day before the
election, he spoke to Singer about bringing his wife to the
United States. Singer said that Ortiz’ wife could have a job
in the cleaning area and then Singer reminded Ortiz to vote
for Local 17–18. Later that day, Singer told Ortiz not to lie
to him, and Ortiz promised not to lie; thereupon Singer di-
rected Ortiz to vote for Local 17-18 and Ortiz agreed. I cred-
it Ortiz concerning the substance of his conversations with
Singer. Although Singer denied that he spoke to Ortiz con-
cerning his wife, a position paper submitted to the Regional
Office on behalf of Respondent acknowledged that some
conversation took place between the two men on the subject
of a job for Ortiz’ wife. Furthermore, Ortiz’ testimony had
the ring of truth and was generally consistent with his affida-
vit given to a Board agent. I find that by asking Ortiz which
Union he would vote for while conveying to Ortiz the idea
that his job would be threatened if he supported the ILGWU,
Singer engaged in a coercive interrogation. Singer is a high
official of Respondent, the information sought by Singer was
very specific, the interrogation took place at the jobsite, and
the manager’s attitude convinced Ortiz that he should not
give a truthful answer but instead say that he would not sup-
port the ILGWU. Thus, Respondent violated Section 8(a)(1)
of the Act. Bourne v. NLRB, 332 F.2d 47, 48 (1964). Fur-
ther, by impliedly conditioning a future job for Ortiz’ wife
on his support for Local 17–18, Respondent violated Section
8(a)(1) and (3) of the Act. The fact that Singer mentioned
his desire that Ortiz should vote for Local 17–18 imme-
diately after agreeing that he would employ Ortiz’ wife con-
vinces me he intended Ortiz to believe that the promise of
a job was linked to support for Local 17–18 rather than the
ILGWU.
Vargas testified that she served as an election observer for
the ILGWU. According to Vargas, when the election was
over, Larrea looked at her and said, ‘‘I am going to give this
one a blow.’’ While he was speaking, Larrea made a hand
movement indicating that he was hitting his hand with his
fist. Vargas’ affidavit does not mention the statement nor the
hand movement. Vargas told the Board agent who took her
379K.G. KNITTING MILLS
11 As will be discussed below, the notation was made by Kauftheil.
12 This notation was also made by Kauftheil.
13 Vargas did not testify concerning the date she returned from her
vacation.
statement that Larrea said, ‘‘I am going to stick it up to this
one.’’ Larrea denied making these comments, stating that he
would not speak disrespectfully to an older person in this
manner. However, I credit the testimony that Larrea often
used bad language to the sewing department employees. I
credit Vargas’ testimony on this point; the difference be-
tween Larrea’s statement as related in the affidavit and in the
instant hearing is not significant because the import is simi-
lar. Thus, I find that Respondent threatened Vargas with un-
specified reprisals because she served as the observer for the
ILGWU in the election, and I find that Respondent violated
Section 8(a)(1) of the Act.
D. Refusal to Recall Employees
On July 20, 1993, Elfega Vargas and Teofila Garcia asked
for permission to take 4 weeks of vacation. Vargas testified
that she and Garcia spoke to Singer and presented him with
letters asking for 4 weeks’ vacation in August. According to
Vargas, Singer told her that he could not give her permission
because of the amount of work in the factory, and he wrote
at the bottom of Vargas’ letter the words, ‘‘not at this
time.’’11 Vargas testified that there was not a lot of work in
the factory on July 20, but that Singer said he could not let
her go on vacation because there was going to be a lot of
work in the next week. On August 2, Vargas gave Singer an-
other letter which stated that she wanted to be absent for 3
weeks to see her ‘‘ailing father,’’ and that she would bring
proof that her father was ‘‘seriously sick.’’ Vargas told Sing-
er that she would return on September 1. Vargas’ affidavit
states that she told Singer that she would return in 3 weeks
because there was a lot of work. At the hearing Vargas testi-
fied that her father was not seriously ill but that he was in
a wheelchair and that she wanted to see him. Teofila Garcia
testified that at first Singer told her she could not take a va-
cation and that it was very important that Garcia remain on
the job. After she told him that her mother would have an
operation on August 24, he approved her request and told her
to return as soon as possible. Singer wrote at the bottom of
Garcia’s letter that she had to bring proof of her mother’s
illness.12 Kauftheil testified that Garcia and Vargas had come
up to him with their letters on the shop floor and that he had
called them into the office and had spoken to them using
DeJesus as an interpreter. Kauftheil told them that the season
was approaching its end and that the goods had to be deliv-
ered; he begged them not to take a vacation at that time. He
suggested that they go in the slow time. Kauftheil was not
sure when the work would be completed, and he tried to per-
suade them to stay on the job. However, Vargas and Garcia
insisted that they had to leave then. Kauftheil consulted Sing-
er, who told him that the two employees were needed in the
shop. Then Kauftheil spoke to Vargas again; he asked her to
take her vacation when the work was slow, and he wrote on
her paper ‘‘not at this time’’ and signed with his initials. At
about this time, Kauftheil spoke to Garcia in the same man-
ner, but Garcia said that her departure was required by an
emergency. Kauftheil told her that if it was an emergency,
he had to say yes because ‘‘someone might die.’’ At the be-
ginning of August, Vargas spoke to Kauftheil and said that
she too had an emergency because her father was sick. Sing-
er testified to the same effect as Kauftheil: Vargas asked for
a vacation at the busiest time of the year and he told her it
was not possible. Later, when Vargas informed him that her
father was sick, he gave her permission to be absent but he
instructed her to bring proof from a doctor. Singer testified
that Garcia similarly had been refused permission to go on
vacation at the end of July because there was too much
work. When Garcia informed Kauftheil a few days later that
her mother was sick and that it was an emergency, Kauftheil
let her go but he asked her to furnish him with proof of the
emergency. Kauftheil testified that he warned both Garcia
and Vargas that there might not be work for them when they
returned because the season was ending. He told them that
business was hard to get. Kauftheil recalled that when
Vargas returned she handed him proof of her father’s illness
and he asked Singer to try to find work for her. Garcia came
back a few days later but, according to Kauftheil, she did not
have any proof that she had left for an emergency visit to
her mother. Singer told Kauftheil that there was no work for
Garcia.
Vargas testified that when she returned to the factory after
her vacation she saw Kauftheil who informed her that there
was no more work but that there would be some work after
the Jewish holidays.13 Vargas gave Kauftheil some docu-
ments showing that her father was ill: the papers show that
Vargas’ father has been treated for a variety of ailments for
over 1 year and that he was unfit to travel alone. According
to Vargas, Kauftheil asked Larrea where he could put Vargas
to work, but Larrea said that there was no work. Vargas then
asked Larrea why some new people were working, and
Larrea told her to wait for Singer. When Singer arrived at
the factory at 9:30 a.m., he said that there was no work.
Vargas testified that she worked on September 1, 2, and 3
on a Singer machine, and that on September 3, Larrea told
her that ‘‘the old man’’ said there was no more work. Two
or three other people in the Singer machine department were
also laid off on September 3. Singer testified that when
Vargas left in August she had been working on buttons and
buttonholes; there was a lot of work in August which lasted
until the beginning of September. According to Singer, when
Vargas returned there was almost no work and no other em-
ployees were working on buttons and buttonholes. After
working for 3 days in September and being laid off, Vargas
was called back to complete a small order in November; she
worked on buttons and buttonholes from November 29 until
December 7. Singer stated that a special order arrived in
September which required the use of a remolding machine
with a new attachment for a difficult rayon fabric. Vargas
was called in to do this work, but according to Singer, she
was not able to handle the job and spoiled the work which
then had to be done over. Singer stated that Vargas is only
able to give effective production on buttons and buttonholes;
although she knows how to operate both a crochet machine
and a machine to sew on pockets, she is not an efficient pro-
ducer for those tasks.
Elfega Vargas testified that when she was laid off on Sep-
tember 3, Singer department employees Blanca Roque and
Dulce Soriano were laid off as well. Vargas stated that
Soriano, who has less seniority than Vargas, was recalled the
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Roque and Dulce Soriano do not appear on any of the lists of
employees whose names were stipulated on the record.
15 It is not clear whether this is the Lucia Vargas who left and was
not reinstated.
16 During one week in May 1994, there were as few as 20 employ-
ees.
following week.14 Vargas filed a grievance with Local 17–
18 concerning her layoff, but the Union informed her that the
layoff was in accord with principles of departmental senior-
ity. Vargas agreed that layoffs at the factory are made by de-
partment and that employees cannot avoid a layoff by
switching into a different department. Vargas testified that on
November 8, 1993, she returned to the factory to inquire
about her job and was told by Singer and Kauftheil that there
was no work for her. Nevertheless, she stated that there were
new people with less seniority working on the Singer ma-
chine and sewing buttons; these were Ardelia Felipe and
Lourdes Latelpa who had previously worked cleaning sweat-
ers. Singer testified that he could not recall whether Ardelia
Felipe was employed when Vargas returned from her vaca-
tion, but he was sure that Latelpa had not been recalled.
Kauftheil testified that in September, 1993, there were em-
ployees on layoff with more seniority than Vargas; these
were Lissa, Schwartz, and Kivale. In September 1993, about
20 employees were laid off.
Vargas stated that other employees have taken time off
and were reinstated; these were Avilia Negreta, Margarita
Vargas, Carolina Alvarez, and Alicia Sierra. Singer testified
that Lucia Vargas left in August 1993 for a vacation and was
not reinstated because she had absented herself during the
busy season. He recalled that Sierra had not taken a leave
in 1993 and that Alvarez was working when Elfega Vargas
left on her vacation and was still working when Vargas re-
turned. Singer could not recall if Negreta was employed
when Vargas returned from her vacation. Kauftheil stated
that Lucia Vargas, who performed the same work as Elfega
Vargas, had cited a family reason for leaving work in August
1993; she never returned to the factory and never asked for
her job back. Margarita Vargas left in August 1993 on vaca-
tion over Kauftheil’s objections that he needed her skills.
Kauftheil explained that he reinstated Margarita Vargas be-
cause she could do special sewing that was difficult and she
was hard to replace.
Teofila Garcia, who had been working on the label ma-
chine when she departed on vacation in August 1993, re-
turned to the factory on September 7. Larrea and Singer told
her that there was no work. Garcia testified that she gave
both Singer and Kauftheil proof of her mother’s illness. The
documents show that her mother’s cataract operation did not
take place as scheduled because of intervening complications.
Garcia believed that a less senior employee, Guadalupe
Gutierez, was working in her place and she filed a grievance
with Local 17–18, but the Union told her that she could not
displace someone in another department. Garcia acknowl-
edged that when she left in August, Gutierez had been mak-
ing samples and that Gutierez was making samples upon her
return. Garcia also maintained that other employees less sen-
ior to her were working in the Singer department, Marguerita
Vargas and Lucia.15 Singer testified that when work is slow,
he retains those employees who can work well on all of the
machines; he named Margarita Vargas and Carolina Alverez
as being the most proficient. Singer stated that he does not
always lay off employees in order of seniority; he keeps
those employees who can work on all of the machines. The
contract with Local 17–18 provides that departmental senior-
ity prevails ‘‘provided that the senior employee is qualified
to perform the available work,’’ but Singer disregards senior-
ity because ‘‘I have to keep the workers who . . . . go from
one machine to another . . . .’’ However, Singer maintained,
he always recalls employees in order of seniority. He ex-
pressed his belief that an employee who leaves the factory
during the busiest time loses seniority if the employee fails
to bring proof that the absence was due to an emergency.
Singer testified that when Garcia returned to the factory in
September, there was no work for her and she did not bring
proof that she had left for an emergency.
In response to the accusations of discrimination, Singer
maintained that he had known for years that Elfega Vargas
and Teofila Garcia supported the ILGWU and that during
that time they had nevertheless worked 48 to 50 weeks per
year. Singer said that 1993 was a very bad year and that
there was no work for any but those employees who could
work efficiently on all of the machines in the department.
Kauftheil stated that he had known for a few years that Gar-
cia and Vargas supported the ILGWU and that he had not
discriminated against them and had not denied them work
because they campaigned for the ILGWU. He pointed out
that Vargas had indeed been called back for a few days of
work in September and in November and December.
From the recital of the facts above, it is clear that no per-
fectly accurate understanding of Respondent’s operations in
the fall and winter of 1993, and the spring of 1994, can be
obtained. There are no accurate records here to show exactly
who was working on any given day; I have been given no
complete listing of employees and their dates of hire, layoff,
and rehire. Both Vargas and Garcia testified that employees
with less seniority were doing their jobs after they were laid
off. However, it is impossible to verify that the names given
indeed represented actual employees. It is also unclear what
work these purported employees actually performed. Re-
spondent introduced a table showing the number of workers
and the gross payroll by weeks; this table discloses that there
was a more or less consistent decline in the number of work-
ers from 59 to 38 from August 1993 to May 1994.16 How-
ever, the decline in gross payroll does not always correlate
with the number of workers, and there is no breakdown of
overtime and regular hours worked. In order to decide
whether Vargas and Garcia were in fact discriminatorily re-
fused work and laid off, I am faced with the task of deter-
mining credibility and weighing the incomplete and often
confusing evidence that appears in the record.
There are problems with the testimony of both Vargas and
Garcia concerning the events surrounding their departures on
vacation. They both testified that they dealt with Singer and
that he wrote comments on their letters requesting leave
time, whereas it is clear that Kauftheil’s handwriting and ini-
tials appear on the letters. I credit Kauftheil’s testimony
about their various requests and his responses to them. I find
that both Vargas and Garcia asked for 4 weeks’ vacation in
August, admittedly the busy season at the factory, and that
they were denied permission to take leave. Then, each em-
ployee independently told Singer and Kauftheil that an emer-
381K.G. KNITTING MILLS
17 If Lucia is Lucia Vargas, the unrebutted testimony of Respond-
ent shows that she left and was not reemployed.
gency situation required her absence in August. Vargas
promised proof that her father was ‘‘seriously sick’’; in fact,
as she acknowledged, he was not seriously ill but she wanted
to see him. Garcia said she had to see her mother because
she was to undergo an operation and Kauftheil thought that
‘‘someone might die.’’ In fact, Garcia’s mother was sched-
uled for a cataract operation that did not take place. It is
clear that Vargas and Garcia had impaired recollections
about the events and that they were less than candid with Re-
spondent in the summer of 1993 when they asked to take va-
cations at a very inconvenient time. Thus, their testimony is
not very reliable. On the other hand, Singer and Kauftheil
were not models of clarity in their testimony. Singer could
not recall whether certain employees were working when
Vargas and Garcia asked for their jobs back. Neither Singer
nor Kauftheil replied fully to all of the allegations made by
Garcia and Vargas that their own work was being done by
certain employees with less seniority.
I conclude that many of the assertions made by Elfega
Vargas and Garcia that other employees with less seniority
were doing their work after they returned are not supported
by the evidence. First, it is clear that employees were being
laid off in September 1993 and through 1993 and 1994.
There was indeed less work to do at the factory. Then, al-
though Vargas stated that Dulce Soriano had less seniority
and was recalled shortly after the layoff of September 3,
1993, there is no evidence that she was sewing buttons and
buttonholes as Vargas was doing prior to her layoff. Further,
Vargas testified that on November 8, 1993, Ardelia Felipe
and Lourdes Latelpa were sewing buttons, but Singer testi-
fied that he was sure that Latelpa was not recalled to work.
Singer could not recall Felipe’s status. However, Singer testi-
fied that no one was sewing buttons and buttonholes full
time and he testified that Vargas was not able to perform as
proficiently in other tasks. Thus, he had to retain employees
who could move from one machine to another and do so in
an efficient manner. Further, Singer recalled that some em-
ployees with greater seniority than Vargas were on layoff at
this time. Garcia stated that Guadalupe Gutierez, an em-
ployee with lower seniority, was working while she was laid
off; but it is clear that Garcia had been sewing labels when
she left on vacation and that Gutierez was making samples.
A grievance filed by Garcia over Gutierez’ work assignment
was not resolved in Garcia’s favor. Garcia also cited Mar-
garita Vargas and Lucia, an employee whose last name Gar-
cia did not furnish.17 Singer testified that he retained Mar-
garita Vargas because she is an employee who can be as-
signed to any task. Singer testified that he has a practice of
laying off employees out of seniority rank where that is nec-
essary to keep a less senior employee who can be shifted
from machine to machine as required by the available work.
Respondent offered extensive unrebutted testimony that
showed that it frequently laid off more senior workers where
less senior employees were able to work at higher efficiency
on many of the machines in the sewing department. This
practice seems to be permitted by the collective-bargaining
agreement which mentions that to avoid a layoff a senior em-
ployee must be ‘‘qualified to perform the available work.’’
In any event, the General Counsel does not allege that Re-
spondent violated the Act by failing to observe the collec-
tive-bargaining agreement with Local 17–18. Rather, the
complaint alleges that Respondent violated the Act by failing
to reinstate Elfega Vargas and Teofila Garcia when they re-
turned from their vacations because they supported the
ILGWU. Further, it is clear that the busy season was over
in September and that a general layoff was underway. Re-
spondent has produced uncontradicted evidence that business
and the payroll began to decline in the fall of 1993. Vargas
and Garcia had been active in support of the ILGWU for
many years and had been retained by Respondent without
any incident. Even after Vargas was laid off on September
3, 1993, she was recalled sporadically to perform work when
it became available. I conclude that the General Counsel has
not met the burden of proof to show by a preponderance of
the evidence that Vargas and Garcia were refused reinstate-
ment or were laid off for discriminatory reasons. On the facts
before me, I cannot find that discrimination was a motivating
factor in their failure to be put back to work. Rather, I find
that the motivating factors for the failure to reinstate and for
the layoff was lack of work, the availability of employees
who were more versatile and could be shifted from machine
to machine without loss of efficiency, and a lingering feeling
that Vargas and Garcia had left during a busy time for emer-
gencies that were not true emergencies. Indeed, Vargas and
Garcia had supported the ILGWU for a good number of
years and had worked consistently for the Respondent. Thus,
I need not perform the analysis required by Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
III. THE REPRESENTATION CASE
A. The Challenged Ballots
Louis Fusco and Julio DeJesus were challenged as super-
visors. I have found above that Fusco is a supervisor and the
DeJesus is not a supervisor. I shall recommend that the chal-
lenge to Fusco’s ballot be sustained and that the challenge
to DeJesus’ ballot be overruled.
Judith Katz, Juan Antorio Nunez, and Teresa Robles were
challenged on the basis of their true identities. Elfega Vargas
testified that a former employee whom she recognized as
Rosie Stein appeared and asked for a ballot under the name
Judith Katz. The name Rosie Stein did not appear on the Ex-
celsior list but the name of Judith Katz did appear on the
list. Vargas’ testimony about Rosie Stein was uncontradicted.
I shall recommend that the challenge to Judith Katz’ ballot
be sustained. Elfega Vargas testified that a fellow employee
known to her as Luis Fermin appeared and asked for a ballot
under the name of Juan Antorio Nunez. The name of Luis
Fermin was not on the Excelsior list, but the name of Juan
A. Nunez-Ruiz was on the list. Vargas testified that although
the man punched a card as Luis Fermin, he had told her that
he had previously worked under the name of Juan Ortiz
Nunez. There is no basis in the record for concluding that
the disputed employee is Juan A. Nunez-Ruiz; the employee
had told Vargas that he was Juan Ortiz Nunez. I shall rec-
ommend that the challenge to the ballot of Juan Antorio
Nunez be sustained. Elfega Vargas testified that an employee
whom she knows to punch a timecard as Nelly Molina
Ramos asked for a ballot as Teresa Robles and was chal-
lenged on that basis. The name of Teresa Robles was on the
382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 This is so even though the contract with Local 17–18 provides
that employees lose seniority after 4 months on layoff.
Excelsior list but Nelly Molina Ramos was not. The record
here shows that an employee by the name of Teresa Robles
was hired June 19, 1992, and that an employee named Nelly
Molina was hired on February 17, 1991. The two employees
have different social security numbers but apparently share
the same home address. The evidences convinces me that
Robles and Molina are in fact two different people and I
shall recommend that the challenge to the ballot of Teresa
Robles be sustained.
The ballot of Avram Deutsch was challenged on the basis
of his special status. Deutsch, a knitter and mechanic, who
has worked for Respondent for 20 years, testified that his
wife is the sister of the late mother-in-law of Kauftheil.
Deutsch is one of three people who have a key to the factory
and he often opens the door to the shop. Deutsch earns a
fixed salary of $500 per week, he does not punch a time-
clock and he enjoys medical insurance paid for by Respond-
ent that is in addition to the insurance provided by Local 17–
18. I shall recommend that the challenge to the ballot of
Deutsch be sustained. Although Deutsch works in the same
area as the other unit employees, he is salaried, he does not
punch a timeclock, he has special medical insurance, and he
has a key to the factory. Dublak Corp., 307 NLRB 1138,
1166–72 (1992). The ballot of Ileana Green was challenged
on the basis of her special status. Green is salaried and does
not punch a timeclock. Teofila Garcia testified that she ob-
serves that Green arrives late at work and leaves early, and
that Green does not work on Friday. The ballot of Kivale
Riva, whose name may actually be Riva Kivale, was chal-
lenged on the basis of her special status. Riva is salaried and
does not punch a timeclock. Teofila Garcia testified that Riva
has preference in that she arrives late, leaves early, and does
not work on Friday. The ballot of Hilda Weiss was chal-
lenged on the basis of her special status. Weiss, who is the
employee in the sewing department charged with mending
holes, is salaried, and does not punch a timeclock. Weiss tes-
tified that she does not work on Friday because she is too
tired. She does not work any set hours and she goes home
whenever she feels like it. I shall recommend that the chal-
lenges to the ballots of Green, Kivale, and Weiss be sus-
tained. I find that they do not share a sufficient community
of interests with the unit employees. With respect to these
three employees, their wages and the hours of their work,
two of the most significant matters to any worker, are not
set in common with those of the unit employees. Their de-
gree of supervision is different in that they set their own
hours of arrival and departure. Their wages do not depend
on how many hours they work and they can leave the factory
when they feel like it; they do not work on Friday although
the factory is open on that day. Dublak Corp., supra.
The remaining challenges are to employees who were pur-
portedly permanently laid off before the election. The Board
explained in Sol-Jack Co., 286 NLRB 1173 (1987):
The test for establishing the eligibility of a laid-off
employee to vote in a representation election was set
forth in Higgins, Inc., 111 NLRB 797 (1955). This test
looks to all the facts and circumstances in the record
to determine whether there is a reasonable expectancy,
on the date of the election, that an individual will return
to work in the near future. The ‘‘objective factors’’ the
Board employs to decide whether an employee pos-
sesses such an expectancy include ‘‘the Employer’s
past experience, the Employer’s future plans, and the
circumstances of the layoff, including what the em-
ployes were told as to the likelihood of recall.’’ [Cita-
tions omitted.]
Singer testified that based on his experience, the factory’s
busiest time has usually been between June and November.
By the end of October, there is usually a layoff. In May, the
new season begins and the employees are called back gradu-
ally. Singer testified that there have been layoffs of more
than 4 months at the shop. He stated that if a worker is need-
ed, that worker retains seniority even after a layoff of over
4 months.18 The record provides examples of employees laid
off in 1992 who were recalled more than 4 months later:
these include Ardelia Felipe, laid off December 6, 1992, and
recalled July 4, 1993, Kivale Riva, laid off December 13,
1992, and recalled April 19, 1993; Luz Maria Gail, laid off
December 20, 1992, and recalled June 27, 1993; and Olga
Garcia, laid off November 22, 1992 and recalled August 15,
1993. Thus, it is clear that even an employee with a lengthy
layoff might be recalled based on the Respondent’s past ex-
perience. Singer and Kauftheil stated that the layoff of 1992
lasted longer than most and that business was generally bad
in 1993. However, based on the factory’s past experience,
business would pick up again and employees would be re-
called as they were needed. Certainly, both Singer and
Kauftheil gave the impression that they were trying to get
more business for the shop.
The record shows that Norma Flores was laid off in No-
vember 1992 and was not rehired. At the time of the hearing,
she had left the country. Given the fact that Flores did not
return to testify even though some of the allegations of the
complaint depended on evidence that she was to supply, it
seems clear that Flores did not have a reasonable expectation
of recall.
Maxima Soriano was hired on July 28, 1985, and laid off
on December 6, 1992. Soriano testified that she has been laid
off and recalled in the past. Soriano testified that when she
was laid off she was told that she would be recalled. Soriano
spoke to Larrea about her wish to be recalled. On the day
of the election, according to Soriano, Larrea said that he
would call her back as soon as Singer gave his approval. Al-
though Larrea denied that he had any conversations with
Soriano, I credit Soriano’s testimony. I find that Soriano had
a reasonable expectation of recall in the near future on the
date of the election.
Virginia Acevedo was hired on June 9, 1991, and laid off
on November 29, 1992. She testified that in March and April
1993, she went to the factory and spoke to Singer about
being recalled to work. Singer said that there was no work
at that time, but that he would recall her when there was
work. On one occasion, Singer told Acevedo that he would
call her after the election when there was work for her. Sing-
er testified that he could not recall an employee by the name
of Virginia Acevedo, although he acknowledged that some-
one by that name had worked for the Company. Despite the
fact that Singer could not recall who Acevedo was, he testi-
fied that he did not speak to her about calling her back from
383K.G. KNITTING MILLS
19 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
layoff. I credit Acevedo’s testimony. I find that on the day
of the election, Acevedo had a reasonable expectation of re-
call in the near future.
Olga Garcia, Ardelia Felipe, and Luz Maria Gil did not
testify here. As stated above, all of them were in fact re-
called to work by the Company in the summer of 1993.
Based on the past experience that employees were recalled
even after lengthy layoffs and on the fact that the Respond-
ent’s future plans certainly included the effort to obtain more
business and recall employees, I find that Garcia, Felipe, and
Gil had a reasonable expectation of recall on the day of the
election. I note, too, that neither Singer nor Kauftheil testi-
fied that these employees did not have a reasonable expecta-
tion of recall, although both were questioned at very great
length about their method of determining layoffs and recalls
and about many individual employees. I make the same find-
ing as to Virginia Fuentes, Levi Lopez, and Graciela Barrera.
These employees were laid off in November 1992, together
with other employees who were later recalled by the Com-
pany. There is no testimony in the record that on the day of
the election these three employees did not have a reasonable
expectation of recall.
Based on my findings above, I shall direct that the valid
ballots be counted and a revised tally be prepared and served
on the parties.
B. The Objections
Objection 1 states that the ‘‘employer destroyed the lab-
oratory conditions of the election by designating Julio
DeJesus as an observer. Mr. DeJesus is a supervisor.’’ I have
found above that DeJesus is not a supervisor.
Objection 3 states that the ‘‘employer coercively interro-
gated workers prior to the election to convince them not to
vote for the ILGWU.’’ I have found above that Singer coer-
cively interrogated Ortiz on the day before the election.
Objection 4 states that the ‘‘employer told a laid-off work-
er she would never be recalled to work because of her sup-
port for the ILGWU.’’ This objection is based on the testi-
mony of Rosario Lydia Salazar whom I have found not to
be a credible witness. I have determined that I cannot make
any findings based on Salazar’s unreliable testimony.
Objection 5 states that the employer ‘‘told one worker she
would never be returned to work unless she supported local
17–18.’’ This objection is based on the testimony of Salazar
whom I have found to be an unreliable witness.
Objection 8 states that the employer ‘‘reduced the hours
of Lydia Salazar, a known ILGWU supporter.’’ This objec-
tion is based on the testimony of Salazar whom I have found
to be an unreliable witness.
Objection 10 states that, ‘‘Supervisors acted in a coercive
and intimidating manner throughout the election campaign,’’
including threats to close the plant if the ILGWU should be
successful, threats to cease employing workers who sup-
ported the ILGWU and appeared at the NLRB, threats to re-
duce hours of work and interrogations on the day of the elec-
tion. I have found above that Respondent unlawfully threat-
ened to close the factory if the employees voted for the
ILGWU.
To the extent that Objections 3 and 10 are based on con-
duct found to violate the Act, I shall recommend that they
be sustained. The acts described in Objections 3 and 10 con-
stitute unfair labor practices which occurred during the criti-
cal preelection period. I find that such conduct reasonably
tended to interfere with the employees’ free and un-
trammeled choice in the election by interfering with their
choice to select the International Ladies’ Garment Workers’
Union as their collective-bargaining representative. Accord-
ingly, I shall direct that if, after a revised tally is issued, the
International Ladies’ Garment Workers’ Union has not re-
ceived a majority of the valid ballots counted, the election
be set aside and the Regional Director for Region 29 shall
conduct a new election when he deems the circumstances
permit.
CONCLUSIONS OF LAW
1. By threatening to close the factory if the employees se-
lected the International Ladies’ Garment Workers’ Union as
their collective-bargaining representative, Respondent vio-
lated Section 8(a)(1) of the Act.
2. By coercively interrogating an employee about his sup-
port for a union and by impliedly conditioning a future job
for an employee’s spouse on his support for Local 17–18,
Respondent violated Section 8(a)(1) and (3) of the Act.
3. By threatening an employee with unspecified reprisals
because she served as an observer for the International La-
dies’ Garment Workers’ Union in an election, Respondent
violated Section 8(a)(1) of the Act.
4. The General Counsel has not proved that Respondent
engaged in any other violations of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended19
ORDER
The Respondent, K.G. Knitting Mills, Inc., Brooklyn, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to close the factory if the employees select
the International Ladies’ Garment Workers’ Union as their
collective-bargaining representative.
(b) Interrogating employees about their support for a union
and impliedly conditioning the employment of employees’
spouses on their support for Local 17–18.
(c) Threatening employees with reprisals because they
serve as election observers for the International Ladies’ Gar-
ment Workers’ Union.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 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
National 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.’’
(a) Post at its facility in Brooklyn, New York, copies of
the attached notice marked ‘‘Appendix.’’20 Copies of the no-
tice, in English, Spanish, and Yiddish, on forms provided by
the Regional Director for Region 29, after being signed by
the Respondent’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 Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
DIRECTION
IT IS FURTHER DIRECTED that the Regional Director for
Region 29 shall, within 10 days from the date of this deci-
sion, open and count the ballots of Julio DeJesus, Maxima
Soriano, Virginia Acevedo, Olga Garcia, Ardelia Felipe, Luz
Maria Gil, Virginia Fuentes, Levi Lopez, and Graciela
Barrera, and that he prepare and serve on the parties a re-
vised tally.
If the revised tally in Case 29–RC–7500 and 29–RC–7568
reveals that the International Ladies’ Garment Workers’
Union has received a majority of the valid ballots cast, the
Regional Director shall issue a Certification of Representa-
tive. If, however, a revised tally shows that the International
Ladies’ Garment Workers’ Union has not received a majority
of the valid ballots cast, the Regional Director shall set aside
the election and conduct a new election when he deems the
circumstances permit.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten to close the factory if you select
the International Ladies’ Garment Workers’ Union as your
collective-bargaining representative.
WE WILL NOT coercively question you about your union
support or activities.
WE WILL NOT imply that in order to be employed in the
factory your family must support Local 17–18.
WE WILL NOT threaten you with reprisals if you act as an
observer for the International Ladies’ Garment Workers’
Union in an election.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
K.G. KNITTING MILLS, INC.