Lizdale knitting Mills, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1977

232 N.L.R.B. 592 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lizdale Knitting Mills, Inc. and Knitgoods Workers
Union Local 155, International Ladies' Garment
Workers' Union, AFL-CIO. Case 29-CA-3426
September 29, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 9, 1977, Administrative Law Judge Anne
F. Schlezinger issued the attached Supplemental
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 Supplemental Decision in light of the
exceptions and brief and has decided to affirm the
rulings, findings, 2 and conclusions of the Administra-
tive Law Judge and to adopt her 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 recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Lizdale Knitting
Mills, Inc., Queens, New York, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
IThe Board's original decision is reported at 211 NLRB 966(1974).
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing her findings.
SUPPLEMENTAL DECISION
ANNE F. SCHLEZINGER, Administrative Law Judge: On
June 25, 1974, the National Labor Relations Board issued
its Decision and Order' in which it directed Lizdale
Knitting Mills, Inc., referred to herein as Respondent, inter
alia, to make whole four employees, Abelardo Ceballos,
Luz Maria Villada, Eucaris Ceballos, and Marta Guerrero,
for losses of earnings resulting from their unlawful
terminations by Respondent on May 31, 1973. The United
States Court of Appeals for the Second Circuit, on
September 26, 1975, issued its opinion granting enforce-
I 211 NLRB 966.
523 F.2d 978.
232 NLRB No. 70
ment of the Board Order 2 and, on November 18, 1975,
entered its judgment ordering enforcement.
Controversy having arisen over the amounts of backpay
due the discriminatees under the terms of the Board Order
enforced by the court of appeals, the Regional Director for
Region 29, on September 30, 1976, issued a backpay
specification and notice of hearing, to which Respondent
filed a timely answer. Pursuant to notice, a hearing was
held before me in Brooklyn, New York, on December 1
and 2, 1976, and January 12, 13, and 14 and February 16
and 17, 1977, for determination of the amounts of backpay
due the discriminatees. All the parties appeared at the
hearing and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to present
evidence. Subsequent to the hearing, Respondent, on or
about April 25, 1977, filed a brief which has been duly
considered. The General Counsel has not filed a brief.
Upon the entire record in this proceeding and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
A. The Backpay Claimants
The Board and court decisions identify the discrimina-
tees as Abelardo Ceballos, his two sisters, Eucaris Ceballos
(who was identified in the instant proceeding as Eucarias),
and Marta Guerrero (who was Marta Ceballos before her
marriage), and his girl friend, Luz Maria Villada (who at
the time of the instant hearing was his wife). They will be
referred to herein collectively as the backpay claimants and
individually as Abelardo, Eucarias, Marta, and Luz Maria.
As all four backpay claimants were from Colombia, spoke
Spanish, and knew little English, each of them testified
through an interpreter. 3
B. The Backpay Specification
The parties stipulated at the hearing to certain amend-
ments in the backpay specification and in Respondent's
answer. One stipulation was that the backpay period
should begin on May 31, 1973, and terminate on October
22, 1975, when Respondent offered all four backpay
claimants reinstatement which they declined. Another
stipulation was that the backpay specification correctly
states that an appropriate measure of the gross backpay
which each claimant would have earned during the
backpay period is the hourly rate of pay as set forth therein
multiplied by 41 adjusted hours, this adjustment reflecting
time and one-half paid for hours worked over 40 per week,
computed on a calendar quarter basis. The parties also
agreed to the deduction of periods of plant closings for
unpaid vacations, to changes based on exact figures as to
certain interim earnings that were received from Social
Security subsequent to the preparation of the backpay
specification, to addition of a bonus that was given
employees in 1973 but not for 1974 when none was given,
and to certain changes based on books and records that
Respondent made available for examination at the hearing.
3 There were three different interpreters during the course of the hearing.
592
LIZDALE KNITTING MILLS
Most of the changes made in the backpay specification
were read into the record. Because they were so numerous,
an amended backpay specification was prepared, which
was thereafter further amended during the hearing. The
General Counsel reported, late in the hearing, that
Eucarias, who received unemployment compensation for
about 2 months after her discharge, had just advised him
that she earned $400, not previously reported, on a job she
held under an assumed name; that, as she was receiving
unemployment compensation at the time, she did not
report these earnings to Social Security; and that she had
understood only social security items were to be reported
for the backpay specification. Eucarias was not recalled to
testify about this. The parties agreed that $400 would be
deducted from the backpay due Eucarias for the second
quarter of 1973, making the amount due for that quarter
zero. As the amended backpay specification provides net
backpay for that quarter of $225, this amount has been
deducted from the $6,638 total found in the amended
backpay specification to be due Eucarias, making that total
$6,413.
The backpay specification, as amended at the hearing
and herein, accordingly claims that, on the basis of the
facts and calculations pertaining to interim employment,
earnings, and expenses, Respondent's obligation to make
the discriminatees whole, under the Board Order enforced
by the court of appeals, would be discharged by payment
to the employees named below of the following amounts,
plus interest accrued to the date of payment, minus the tax
withholdings required by Federal and state laws:
Abelardo Ceballos
Luz Maria Villada
Marta Guerrero
Eucaris Ceballos
$3,814
3,627
5,993
6,413
C. The Respondent's Contentions
The backpay specification included a 15-cent increase in
1974 and a 10-cent increase in 1975 in the wage rates of all
four backpay claimants based on increases at those times
in the Federal minimum wage rates. Respondent contends,
section D, this was unwarranted as to Abelardo and Marta,
who were being paid more than the minimum rates.
Respondent also contends, section E, that the backpay
period of each claimant should be reduced because each
would have been laid off, and not thereafter reemployed,
for lack of work each was capable of performing.
Accordingly, Respondent urges that the backpay period, as
to Abelardo, should terminate on or about February 10,
1974, and that there would have been no work available for
him during 6 weeks prior to that date or at any time
thereafter during the backpay period; as to Marta, should
terminate on or about August 19, 1973; and, as to Eucarias
and Luz Maria, should terminate on or about December
22, 1973.
Respondent further contends, section F, that jobs in the
knitting industry, for which the backpay claimants, on the
basis of their experience, could have qualified, were
available during periods of their unemployment; that their
testimony with regard to attempts to find work during the
backpay period was vague, indefinite, and incredible; that
the evidence showed that they were not making adequate
searches for interim employment; and, therefore, that the
amounts of backpay found due should be abated in certain
periods because, and to the extent that, the backpay
claimants incurred willful losses of earnings by failing to
make reasonably diligent searches for interim employment.
D. The Wage Increase
At the time of their discharges on May 31, 1973, the
backpay claimants were receiving the following rates of
pay:
Abelardo
Marta
Eucarias
Luz Maria
$2.50
2.25
1.85
1.85
The backpay specification increased each of these wage
rates by 15 cents on the basis of the Federal increase in the
minimum rate, effective May I, 1974, from $1.85 to $2 an
hour, and by 10 cents on the same basis the following year.
At the hearing, the General Counsel withdrew the claim
based on the 1975 increase. Respondent opposed the 1974
increase as to Abelardo and Marta, whose wages were
above the minimum rates.
The parties stipulated at the hearing that the employee
complement was approximately 39 hourly paid employees
at the time in question; that at least 24 employees not
covered by the statutory requirement received raises at that
time; that at various times during May 1974 "all employees
on the payroll with certain exceptions" received a raise of
15 cents an hour; and that the exceptions were 2 who
received increases of more than 15 cents, and several who
received no increase including 3 who were newly hired at
$2, a mechanic who received a salary of $400 a week, an
assistant to the floorlady who received a salary of $300 a
week, and Dolores Geddies who was raised from the $2.25
she was paid as a separator to $2.50 when she replaced
Abelardo on the steamingjob.
I find, on the basis of the stipulations of the parties and
all the relevant circumstances of this case, that, as virtually
all the hourly paid employees received a 15-cent increase
during May 1974 after the Federal minimum wage increase
became effective, it was reasonable to assume, in preparing
the backpay specification, that Abelardo and Marta would
likewise have received such increase. I find, therefore, that
Respondent has not established that the 15-cent increase
should be deducted from the amounts of backpay found to
be due Abelardo and Marta.
E. The Layoff Contention
Respondent manufactures sweaters under contract with
customers who furnish the materials and determine the
styles. At the time of the discharges on May 31, 1973,
Marta had been employed by Respondent about 2 years,
Eucarias a little less than a year, Abelardo almost 6
months, and Luz Maria about 4-1/2 months. Abelardo did
the steaming, Marta laid out materials for the cutter, and
Eucarias and Luz Maria did cleaning work which, in
Respondent's operation, meant clipping threads from
garments.
593
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Abelardo maintained that he did pressing as well as
steaming, that he had no prior experience but was shown
how to perform these operations by Gelbord, Respondent's
president, and the floorlady, and that he learned pressing
quickly because he could observe what the pressers were
doing from his nearby steaming table. He testified that he
also, on a few occasions, cut threads to separate garments,
cleaned garments, packed, helped load and unload trucks,
brought material to operators, and helped in other
capacities. In addition, he cleaned the plant and offices on
Fridays after work. He testified that many employees
spoke different languages, and that working at this plant
did not require a knowledge of English.
Marta testified that for about 2 days after her hire she
pulled strings to separate pieces; that she was shown how
to do the work for the cutter -- she did not know what the
job was called on which she had no prior experience,
and continued on that work until her discharge; that she
also sometimes cut threads; that she packed for a day or
two after the floorlady had someone show her how to do
this; and that a few times she modeled new styles in the
office.
Eucarias testified that, in addition to the cleaning work,
she operated the label machine, and she and Luz Maria
testified that the latter did so when Eucarias was absent.
Eucarias testified that she also at times operated various
machines which she learned to do in Colombia, and other
machines on which she was trained by the floorlady, and
that some of her interim jobs involved operation of these
machines. She admitted she could not recall the details of
some of these machines and their operations, and ex-
plained that it was difficult to do so after 4 years.
Luz Maria testified that, for about 4 days after her hire
by Respondent, she separated pieces, work on which she
had no prior experience but learned very quickly from the
floorlady; that the floorlady showed her how to do various
other jobs; that she operated the label machine in Eucarias'
absence, and operated a Remoldi machine one day; that
she occasionally marked the places where buttons were to
be placed on the garments; but that her principal job was
cleaning, which she did with about a dozen girls including
sometimes Eucarias.
Respondent contends that the backpay claimants lied
about their abilities and experience, and that all four, if
they had not been discharged, would have been laid off at
some point during the backpay period, and not recalled,
for lack of work, as was the case with some employees who
performed the same kinds of work and had greater
seniority than the backpay claimants.
Gelhord testified about this in part as follows:
A. The very first thing I do you have to layoff people which I feel
very sorry about it for myself and for them.
I have to layoff and I have to
I am laying it off there is
I am la)ing off first which I
Now what I am talking about
The floorlady actually she is laying them off or she comes to me and
discussed who is going to be paid off.
Although Gelbord, president of Respondent, admitted
that Respondent had no shop rules and no formal seniority
system, that seniority was not followed strictly on layoffs
but only as a guide, and that he kept the better workers
even if they were relatively new, he maintained that he
would have laid off all the backpay claimants on the basis
of seniority. Herskovitz, Respondent's floorlady for 11
years, who does most of the hiring, had hired all the
backpay claimants. Gelbord, his business partner, and
Herskovitz can and do discharge employees. They consult
with one another about layoffs for lack of work.4
Gelbord testified that the steaming, which Abelardo
performed, is done at the beginning of the manufacturing
process; that it does not require experience and Abelardo
had none to Gelbord's knowledge; and that it took only a
couple of days for Gelbord to train Abelardo on the
steaming work. Gelbord admitted that he testified at the
original hearing in this proceeding that Abelardo came in
to do on-the-floor work before he trained Abelardo on
steaming, but maintained at the instant hearing that
Abelardo did only steaming. He admitted that Abelardo
may have helped with on-the-floor work occasionally,
"definitely not" taking away yarn and packing sweaters but
possibly helping a boy carry yarn, and, finally, that
Abelardo may have been assigned for a few days to on-the-
floor work and might at times have done work that he did
not know about. Gelbord also testified, as to Abelardo
being trained as a presser, "In our place no. In some other
places maybe yes. In our place no because I am not doing
that." He explained that he had two experienced pressers
who had been employed for many years. Gelbord testified
that he gave Abelardo the job of cleaning the plant after
work on Fridays, that he did not object when he noticed
that the other members of the family were helping
Abelardo with this work, and that they were paid overtime
for this work that was done after their regular hours.
Gelbord testified that Dolores Geddies, who replaced
Abelardo and was raised at that time from $2.25 to $2.50,
was laid off for lack of steaming work in August and
recalled in September 1973; that she was laid off again in
February and recalled in March 1974, but not for steaming
work; and that this work has been performed by Garcia
and Goodman, and was being performed at the time of the
hearing by Goodman. At a later point, however, he
testified that Geddies in February 1974 was employed as a
separator and was on the payroll in August 1974 as a
steamer at $2.50. Finally, on the last day of the hearing,
Gelbord asked to correct his previous answer as to
Geddies, and stated that Geddies was laid off in February
Q. What is the policy?
A. If I take the book out and say which one operates from this
machine and this machine I say how many and which one, this one I
don't want and I ask why this is a good worker this one I would like to
keep.
No objection. I have seen she lays off mixed.
I say why this this just works here a couple of weeks why do you
want to keep her she just started. She says she is verv good.
I have no objections.
She lays off and out of curiosity I ask her what is the story I hear
this one is here longer and they're both alike so I --
She has -
I want her to say here.
594
LIZDALE KNITTING MILLS
1974 for 3 or 4 weeks, that she came back to work on the
slicing machine, and that she was laid off in August
because it was too expensive to pay her $2.50 for this
operation.
Gelbord testified that the floorboy takes in the yarn
shipments, brings yarn to the knitters, packs, and does
general work; that some of this work is semiskilled but does
not require much training; that he could not give Abelardo
a skilled job; and that the floorboy, who is still employed,
began to work about 6 months before Abelardo did.
Gelbord testified that Marta did only layout work; that
she was hired for this job although he believed she had no
experience at it and it is skilled work; that he and the
floorlady, neither of whom speaks Spanish, taught Marta
this work; but that he could not have trained Marta for
other work as he would not have trained her or the other
backpay claimants on machine operations because of the
problem of communication, because he does not hire
machine operators who do not speak English,5 and because
he would not take the time to train people on machines in
operation. Gelbord also testified that Marta quit at one
time without giving reason and was rehired, that he
criticized the floorlady for rehiring someone who had quit,
that the floorlady said she needed Marta, and that Marta
some time thereafter was granted a 3-week leave of
absence, he did not know why. Gelbord testified that there
were about six layout girls when Marta was discharged;
that one, Demetreoff, had about a year less seniority than
Marta, but Holt and the others had more; that a change in
this operation reduced the need for layout work; that he
laid off Demetreoff in August 1973 and Holt in February
1974 and did not recall them; and that the rest of the
layout girls were retained but were not all still employed at
the time of the hearing as there had been some turnover.
Gelbord admitted at one point in his testimony that
Eucarias had at times operated one of the two label
machines. At another point, Gelbord admitted that he
testified as to Eucarias, at the original hearing in this
proceeding, that "At the beginning I believe she was plain
on the floor later on she was on the labeling machine
working." He testified at the instant hearing that he did not
know why he said that, that Eucarias never worked as a
floorgirl as far as he knew, and that she never operated a
label machine full time. Gelbord testified that a change in
label operations about January 1974 required only one
operator on the label machine, and that was Montera who
had been employed by Respondent since about 1967. He
also testified that Daley has been the only floorgirl in the
plant since about 1968, and then that he recalled that
Daley was on maternity leave, "I don't remember exactly
the years. . . '71, '72, '73 I am not quite sure."
Gelbord testified that Luz Maria's only work was
cleaning garments, and that she never to his knowledge
carried materials or garments to and from operators, the
work of a floorgirl. Gelbord also testified that the cleaning
work performed by Luz Maria and by Eucarias was the
least skilled job in the plant; that, at the time the backpay
claimants were discharged, he had 12 or 13 doing this
Gelbord testified at one point that he did not know what language the
backpay claimants spoke, but that there have been some employees who
spoke Spanish. Several of Respondent's witnesses. including a machine
work; and that he reduced this number early in January
1974 to 8 or 9, and laid off more of them in or about
February 1974, reducing the number he has had since then
to 6. He also testified that, at the time Eucarias and Lu,
Maria would have been laid off on the basis of seniority,
there was no other job they could do as he thought all the
other jobs were "machine operators of various sorts."
Gelbord maintained that the backpay claimants did not,
and could not, perform the different functions they claimed
to have done, and disputed their descriptions of certain
machines and their operations. On the other hand, while he
testified that he was "Quite familiar" with the machines as
he sees them every day and makes all the repairs and
adjustments on them, and although he used gestures, made
sketches, and analyzed certain garments that were made at
the plant and brought to the hearing to illustrate what the
machines did, his descriptions of machine operations were
unclear and confusing. On the last day of the hearing, when
Gelbord was recalled by Respondent to refute certain
testimony by the backpay claimants, he was asked, for
example, if the eyelet machine operation was a descnbed
by Eucarias. He denied this, and went on to testify as
follows:
Q. How do you operate it?
A. First the washer.
Q. What is a washer?
A. Exactly what it says a washer.
Q. A little steel ring?
A. Correct. A flat steel ring I would say about one
twentieth of a thousand -
Q. So tell me how to operate the eyelet machine?
A. The eyelet first you have by hand take it by
hand and put the eyelet on top of the bottom plunger.
Q. You say you pick up an eyelet and put it on the
plunger?
A. On top.
Q. Is that in the machine?
A. Yes. It is.
Q. You feed it into the machine?
A. Let's not misunderstand each other you are
placing it on top of the plunger sitting it, it means it will
collate to the fitting but you're placing it on top of the
plunger.
Q. You are talking about a washer? What do you
do with it.
A. The washer you take and putting it first thing on
top of the plunger then you take the main buttonhole
and you stretch it down firmly on the plunger. At that
point the cloth is about or the washer is on the left side
of the cloth. Then all you do at that point you press the
pedal and the eyelet is being fitted by the machine, the
eyelet being fitted by the machine not by hand.
* *
The eyelet machine does not belonging in the
knitting industry what we had and I assume that is the
operator, came from different European countnes and spoke English with
various foreign accents.
595
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only eyelet machine. The washer and the left side of the
cloth on top of the washer and the eyelet.
Q. And the eyelet comes from the machine?
A. Let me explain why. Ask like that. The washer is
- May I have a piece of paper? (Handing to witness.)
Looking from the profile this is a washer (indicating),
here comes the cloth (indicating), here like that from
the profile. The eyelet is from the press from the top is
pressing through, the washer, through the washer and it
is pressing it runs out like that and then it becomes a
ready eyelet that way and that way (indicating) and
here is the cloth (indicating).
Q. In other words Mr. Gelbord to paraphrase what
you have drawn -
JUDGE SCHLEZINGER: I think it would be well to
paraphrase it.
(Direct examination continued).
Q. (By Mr. Kimmell) There is a washer in between
the two pieces of cloth?
A. No. No.
Q. There is a washer underneath the cloth?
A. Assuming this is the cloth, this is the right side
of the cloth (indicating).
Q. Yes.
A. This is the left side of the cloth (indicating).
Q. Yes
A. This is the plunger you take the washer and put
it fit it right on top of it.
Q. On top of what?
A. Of the plunger. The plunger.
Q. The washer goes on top of the plunger?
A. Yes. You take the cloth.
Q. On top of the plunger with the washer?
A. Yes. Correct. Then you take -
You press the pedal and it comes down while the
machine rotates, at the same time it is like -
It comes this way from up, down to the left
(indicating). At the same time this too beneath about
the plunger then it comes down.
Q. Which pushes the eyelet through the fabric?
A. Yes. And then it comes the eyelet.
Q. Now, so the eyelet comes from the machine?
A. Yes. Correct.
Q. Just to the contrary of what Miss Ceballos said
that the eyelet is put where the washer is?
A. Exactly.
Gelbord testified that the knitters, pressers, and cutters
are very highly paid; men of great skill doing work
requiring years of experience; that some of the machine
operations performed by women also require years of
experience; that it was his policy not to train people for
these jobs but to hire only people who had obtained
experience at other plants in the area; that he had no
problem finding such qualified people since 1973 as there
were always many applicants seeking work; and that he
has been able to hire experienced people for skilled jobs at
or near the minimum wage, and he raises their wages only
after they have shown that they do good work.
Respondent conceded at the hearing that, subsequent to
the discharges of the backpay claimants, a large number of
new employees were hired in low-paying classifications;
that some worked for very brief periods as there is
considerable turnover, while others were still employed;
and that many of the machine operations were carried on
full time throughout 1974, and some operations were
carried on "Around the clock.... Two shifts all the time."
Gelbord testified that his books showed 39 employees
including supervisors in July 1974, but that he could not
state how many there were on particular dates; that there
were no records of each employee's job function, and he
could not remember what work some employees per-
formed, who operated particular machines, the dates when
employees were hired, the amount of training they
received, or the wage rates they were paid, and, in some
instances, whether they were still employed; and that the
books showed a number of individuals employed at the
minimum wage who had less seniority than the backpay
claimants.
Gelbord testified that the knitting industry is busy in
some years and slow in others, and that the business in fact
fluctuates from month to month; that, following the
discharges of the four backpay claimants in May 1973, the
industry as he recalled was busy during the remainder of
1973; that, during that period, Marta "with her skills as a
layout girl" and employees who were experienced in
cleaning and other operations should have had no
difficulty getting jobs as the industry needed workers; and
that he needed help in certain categories at this time but
was unable to obtain the employees he needed.
Herskovitz, the floorlady, testified that she did most of
the hiring and the supervision, with the aid of an assistant
floorlady, and that she knew the employees better than
Gelbord, who was in and out of the plant.
Herskovitz testified that Abelardo first did on-the-floor
work, carrying materials to and from various operations,
for "quite a few weeks"; that, when he requested it, she
promised to and did train him on steaming; and that, when
he wanted to do more work and to earn more money, she
permitted him to clean the premises on Fridays after work.
Herskovitz denied that Abelardo did any pressing and
asserted that pressing requires long experience, whereas it
takes only a few weeks to teach steaming, and pressing is
much a higher paid job than steaming, although she
admitted that the same machines can be used for both
pressing and steaming. Herskovitz denied also that Abelar-
do performed any of the packing duties done by the
packers. She admitted he might have tied up cartons, which
is usually done by the shipping man, and might have
helped with other shipping operations when the shipper
was absent.
Herskovitz testified that Marta was the layout girl, that
in 2 years Marta did no other work, and that she asked
Marta a few times to try on sweaters so she could check
sizes but she also asked other girls to do this. She denied
that Marta ever did packing, which she described as
involving inspection of each garment, folding garments a
certain way and placing them in boxes, and recording sizes,
colors, quantities, and styles in accord with packing lists or
pin tickets, after which a shipping boy places the boxes into
cartons.
Herskovitz testified that Eucarias worked at the finishing
table; that, when Eucarias requested instruction on a
596
LIZDALE KNITTING MILLS
machine, she put Eucarias as "a favor" on the label
machine; that she permitted Eucarias to do this work about
an hour a day occasionally because Eucarias "did not
produce anything . . . it takes a while until you learn
anything to do"; and that Eucarias never ran the various
machines Eucarias claimed she did because it takes years
to learn those machines and Eucarias was not able to
operate them.
Herskovitz testified that Luz Maria was there a short
time, she did not know how long; that Luz Maria worked
at the finishing table cutting threads and cleaning up
garments, an operation that has been changed but required
more skill at that time; that Luz Maria never did any other
work; and that she never showed Luz Maria how to run
any machine.
Herskovitz testified that she hired a number of people
after the four backpay claimants were discharged, but none
for steaming, layout, label machine operation, or cleaning;
that she hired only machine operators with experience; that
it was easy in the area of the plant to get skilled people
even at low rates on certain machines; and that the
backpay claimants could not have done this work.
Several employees testified, as witnesses for Respondent,
that years of experience were required to learn their jobs.
They were not able, however, to explain why the learning
process was so long but indicated that it took much
practice to acquire speed and proficiency in the work. They
testified that they acquired their skills and experience
before coming to work for Respondent, but all admitted
they learned by on-the-job training. Some of these
witnesses also testified, after the backpay claimants were
identified for them at the hearing, that they never saw the
backpay claimants perform certain kinds of work that the
backpay claimants testified they had done. Several of these
witnesses admitted, however, that their work required close
concentration, and that they knew very few employees or
what work they did even at the present time.
One of these witnesses, Tommy Kelly, testified at
different points that it took months, a year, 2 years, of on-
the-job training to learn pressing, but that he could not
verbalize the instructions; that some styles are easier to
press than others and he could press some garments in a
minute; and that knowing how to steam would help in
learning how to press, and the same machine can be used
for both. He also testified that Abelardo had worked only
about 10 feet from him but he never saw Abelardo do any
pressing. He also testified, however, that he did not recall
who did the steaming after Abelardo left, that he did not
know what work Geddies did, and that she did no steaming
as far as he knew. It was Geddies who replaced Abelardo
on steaming after Abelardo's discharge.
Clara Christopher testified that it takes about 2 years to
learn her packing job, which includes examining, folding,
and boxing sweaters, marking the contents, and sending
defective ones to a mender or operator.6 She testified that
she began on another job as a floorgirl but was trained in
packing by a girl working next to her, and that only trained
people were hired by the Respondent. She testified that she
6 Gelbord testified that the packers are paid $2.25.
z Gelbord testified that he thought there were 14 or 15 merrow machine
operators in 1974, but he was not sure of the number.
did not recall any of the backpay claimants ever working in
her department, that she does not speak Spanish, that she
does not "associate with too many of the other girls most of
them speak Spanish," that none in her department are
Spanish speaking and she knows very few employees
outside her own department, and that while on the job she
is constantly looking down at her work.
Emily Lorenzoni, who learned to run both the merrow
and the Remoldi machines in Italy, testified that it took 2-
3 years to learn to operate the merrow and months to learn
to operate the Remoldi. She also testified that she never
saw any of the backpay claimants operating these ma-
chines; that she saw Eucarias on the label machine
occasionally, but never on the other machines Eucarias
claimed to have operated; that she thought she would have
seen the backpay claimants if they were on the machines in
question as she occasionally raises her head from her work,
which requires much concentration, and looks around; that
she does not know the names of employees, and would
speak to other employees if they spoke Italian; that it was
difficult to recall who was on a machine in 1973; and that
she did not know how large the sewing department was or
how many machines there were as "I worked there five
years I never counted why for me to count the machines." 7
Fannie Montera, who has been a label machine operator
at Respondent over 10 years, testified that she was the only
one but sometimes needed help in this work, occasionally
full-time help; that she recognized Eucarias, who was
pointed out to her, as a former employee of Respondent,
but "I don't remember if she made labels, I am so busy
with my work the machines are sometimes so far apart I
don't know if they're helping or not"; that she thought she
saw Eucarias on the label machine a few times but not for
an entire week, unless she was out, and she did not recall if
she had an extended absence in 1973; that she saw Luz
Maria working on the layout table laying out work for the
cutter, but did not remember seeing Luz Maria on the label
machine or on other machines; and that she did not in fact
know what the backpay claimants did as "There are so
many other people there when you're so busy you're not
really looking."
The last of this series of employee witnesses, Mary
Trambosch, who has been employed by Respondent over
10 years, testified that she learned the merrow operation,
which took 3-4 years, before coming to this job; that she
never saw Eucarias on the merrow or other machines but
only on layout work;8 that she never saw Luz Maria on a
machine but only working at the table; and that she did not
see how anyone could operate the various machines. She
testified, as to how many merrow machines there were,
"Maybe fourteen, maybe ten. I don't know. It is a lot. It is
a lot of machines I never counted." She testified that these
machines were gray, but. as to the color of the Remoldi
machine, which she also saw every day, "I think it is green.
I am not sure. I think it is green. I am not sure.... I think
it is green. I never worked on the Remoldi machine.... It
is a green color. Yes." She also testified that she did not
know if Eucarias ever ran the label machine, that it was
8 The layout work, which Montera said she saw Luz Maria do and
Trambosch said she saw Eucarias do, was Marta's job.
597
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
difficult to recall who operated machines in 1973 or 1974,
and that she is used to the merrow machine by now so
looks up and gets up from her work occasionally.
Respondent's witnesses disputed the descriptions given
by the backpay claimants as to the appearance and
operations of the machines. It is evident, however, and I
find, that the confusion in these respects on the part of the
backpay claimants was attributable to language problems,
the lapse of time, and their work on other machines in
other plants in the 4-year interim. I am convinced that the
backpay claimants, in testifying, for example, that certain
machines in Respondent's plant were one color when
others testified that they were some other color, were not
deliberately lying in an attempt to show they operated
certain machines when in fact they did not. Moreover,
Respondent's witnesses also had considerable difficulty in
describing the machines and their operations.
I find, on the basis of their demeanor as witnesses and
the record as a whole, that the backpay claimants were
testifying candidly and to the best of their recollection
about work they did and operations they learned to
perform while in Respondent's employ. On the other hand,
the testimony of Respondent's witnesses as to the limited
abilities of the backpay claimants was replete with self-
contradictions, contradictions of one another, evasions,
and implausibilities. I credit the testimony of the backpay
claimants, therefore, that they performed various kinds of
work. It is clear from the record, and I find, that all four
backpay claimants were hard-working and ambitious, and
sought to learn, and from time to time did learn, both by
observation and by instruction, operations other than those
they had previously learned or were generally performing.
Respondent evidently thought highly enough of them as
employees that, after Marta had worked there for a
considerable period, it hired the other three at different
times; it rehired Marta, who had quit without giving any
reason, and thereafter granted her a leave of absence; and
it paid Marta and Abelardo more than the minimum wage
although asserting repeatedly it was able to hire experi-
enced skilled employees at the minimum wage, and more
than it paid some employees who had for years been
performing certain "skilled" operations.
Respondent admittedly did not have a policy of layoffs
based on seniority. Moreover, at times during the backpay
period it hired new employees at minimum wages for both
its skilled and unskilled jobs. And it admittedly for a time
during the backpay period had difficulty finding employees
in categories it needed. As has been frequently held, by the
Board and the courts, "It is a well settled principle that the
burden of proof is on the employer to show that it would
not have had work available for a discriminatee due to
factors unrelated to the discriminatory discharge [cita-
tionsl."9 I am convinced, and find, on the entire record,
that Respondent has failed to establish, by competent and
probative evidence, that it would have laid off, and not
rehired, the backpay claimants during the backpay period,
if they had been employed subsequent to May 31, 1973, for
lack of work that they could perform.
9 N.L.R.B. v. Midwest Hanger Co., 550 F.2d 1101 (C.A. 8, 1977); Bagel
Bakers Council of Greater New York and its Employer-Members, 226 NLRB
622 (1976).
F. The Search for Interim Employment
Following their discharges, a union agent took all the
backpay claimants to Respondent's plant to request
reinstatement, and then to the union employment office,
where he registered them as applicants for various kinds of
work. The Union never referred them to any jobs.
Abelardo and Eucarias also registered with the Unemploy-
ment Compensation Commission for a period following the
discharges, but not for other periods during which they
were unemployed, and Marta and Luz Maria never
registered there. Their explanation for failure to register
was that they were looking for, and hoped to find, jobs that
would provide more money than they could get from
unemployment compensation. Luz Maria did register at
one time at an employment agency.
Eucarias had, for a period while employed by Respon-
dent, also worked part time at Pentagon Plastics. After the
discharges, some of the backpay claimants got jobs there
for a time. All looked for jobs in factories. Abelardo also
looked for other kinds of work he could do, and found
work for a time as a laborer on a construction project, and
at times drove a "gypsy" cab. As Abelardo knew a little
more English than the other backpay claimants, he
sometimes went with them to help look for work, and
friends also helped them to find jobs. Luz Maria found one
job through a friend. They also helped one another. At
times one of them found a job at a plant and was able to
get jobs there for some of the others so they had the
opportunity again to work and arrange transportation
together. Their family assisted with support when some
were unable for periods of time to find work.
Their difficulty in looking for jobs was compounded by
their unfamiliarity with English, with the New York area,
and with the public transportation system. On occasion
they went to an area in New York where there were
manufacturing plants and walked from plant to plant
applying for work. They were often told that there was no
work, or that they would be called when there was work
and were never called. At other times they did find work,
for a day, a week, a month, or occasionally for periods of
many months. The testimony of the backpay claimants
about the search for interim jobs was vague and indefinite.
They could not remember names of some of the plants
where they applied or the precise locations, only the
general area of New York where the plants were located,
and that certain of these plants made belts, cushions,
plastics, electrical products, dolls, pens, sweaters, coats, or
women's wear. Eucarias testified that she got a job at a
plant where she worked for a day but was unable to return
there to work or to collect her day's pay because she could
not find the place again.
The backpay claimants also at times denied, on examina-
tion by counsel for Respondent, that they worked at places
that were listed as their employers in the backpay
specification. When they were asked about these employ-
ers, however, in terms of street addresses or the shortened
names by which they identified some of these employers,
they were able to recall the employers and testify about
598
LIZDALE KNITTING MILLS
those jobs. Counsel for Respondent urged, during the
presentation of such testimony and in the brief, that the
backpay claimants were lying, and that a backpay remedy
should be denied individuals who testified at such variance
from the backpay specification. When Eucarias, for
example, could not recall working for a named employer
who was listed on the backpay specification, counsel for
Respondent argued that her backpay claim should be
dismissed. She recognized the employer in question,
however, when given the address, and testified that she
worked there for over a month for about $2.50 or $2.60 an
hour, which was more than she had been paid by
Respondent, that she was laid off there when work got
slow, and that she was called to come back to that job but
was then employed on the job on which she had been
working for over 8 months at the time of the instant
hearing. Counsel for Respondent also argued at the hearing
that the backpay claimants knew more English than they
would admit, particularly Abelardo. At counsel's request,
Abelardo was questioned in English without an interpreter.
He was unable, however, adequately to understand or to
answer the questions in English, and resumed testifying
with the interpreter.
It is established policy under the Act that a backpay
claimant is required to make a reasonable search for
interim employment '° in order to mitigate loss of income
and the amount of backpay. The Board and the courts
hold, however, that, in seeking to mitigate loss of income, a
backpay claimant is "held. . . only to reasonable exertions
in this regard, not the highest standard of diligence ....
The principle of mitigation of damages does not require
success; it only requires an honest good faith effort
.... The Board and the courts also hold that the
burden of proof is on the employer to show that the
employee failed to make a reasonable search,12 or that he
willfully incurred losses of income or otherwise was not
available for work during periods when backpay is
claimed,13 and any "doubts should be resolved in favor of
the backpay claimant rather than the respondent wrong-
doer who is responsible for any uncertainty which may
exist" and against whom any uncertainty must be re-
solved. 14
What constitutes a good-faith effort to mitigate backpay
depends upon the facts and circumstances of each case.
The board has stated:
. . . that in broad terms a good-faith effort requires
conduct consistent with an inclination to work and to
be self-supporting and that such inclination is best
evidenced not by a purely mechanical examination of
the number or kind of applications for work which have
N. L. R. B. v. Midwest Hanger Co., supra.
" N.LR.B v. The Madison Courter, Inc., 472 F.2d 1307 (C.A.D.C.,
1972); N. LR.B. v. Arduini Manufacturing Corporation, 394 F.2d 420, 423
(C.A. 1, 1968); N.LR.B. v. NHE/Freewayr, Inc., et al., 545 F.2d 592, 594
(C.A. 7, 1976); McCann Steel Compan); Inc., 224 NLRB 607 (1976).
V N L. R.B. v. Midwest Hanger Co., supra.
N L. R.B. v. Pugh and Barr, Inc., 231 F.2d 588 (C.A. 4, 1956); N.LR.B.
v. Miami Coca-Cola Bottling (Compfny, 360 F.2d 569 (C.A. 5. 1966); Glass
Guard Industries, Inc., a Division of Guardian Indust.res. 227 NLRB 1140
(1977).
'4 UnitedAircraft Corporation, 204 NLRB 1068 (1973).
ms Hickman Garment Company, 196 NLRB 428. 432 (1972), enfd. by
been made, but rather by the sincerity and reasonable-
ness of the efforts made by an individual in his
circumstances to relieve his unemployment. Circum-
stances include the economic climate in which the
individual operates, his skill and qualifications, his age,
and his personal limitations.1 5
The pertinent circumstances in this case show, and I find,
that the backpay claimants, despite their "personal limita-
tions," looked for and found jobs to an extent "consistent
with an inclination to work and to be self-supporting"
during the years following their discriminatory discharg-
es. 16
Accordingly, I find, on the basis of my observation of the
witnesses and the record as a whole, that the backpay
claimants were testifying truthfully about their search for
interim employment, and that their testimony about this
was vague and indefinite, not because of an intention or
attempt to deceive, but because of their lack of knowledge
of English and of the New York area, the lapse of time of
about 4 years, the failure to keep records, poor memories
for names, locations, and dates, and a lack of understand-
ing as to the information they were expected to furnish.
Furthermore, all four did seek reinstatement with Respon-
dent, all four registered with the Union, and all four looked
for jobs, and there is no evidence that any of them rejected
offers of jobs. Moreover, all of them did find interim jobs,
some for substantial periods, and no backpay is sought for
periods when they were not seeking work for various
reasons, Luz Maria, for example, at the times when she had
two babies. In conclusion, I find that all four backpay
claimants made a sincere and reasonable effort, in their
circumstances, to find interim employment to mitigate loss
of income resulting from their discriminatory discharges
and because they needed to work to earn their livelihood,
and that Respondent has failed to substain its burden of
proving lack of due diligence in seeking interim employ-
ment or willful loss of earnings on the part of any of the
backpay claimants during the periods when backpay is
claimed.
Concluding Findings
The backpay remedy is not a private right but a public
one granted by the Board, with court approval, to
discourage unlawful discrimination against employees and
thereby to vindicate the policies of the Act. t7 As the
Supreme Court has stated, "Making the workers whole for
losses suffered on account of an unfair labor practice is
Order issued Dec. I 11, 1972 (C.A. 6). See also N.LR.B. v. Lozano Enterprises,
356 F.2d 483 (C.A. 9, 1966), enfg. 152 NLRB 258 (1965).
is N. LR.B. v. Cashman Auto Company and Red Cab Company, 223 F.2d
832, 836 (C.A. 1, 1955); United Aircraft Corporation, supra. In N. LR.B v. J.
H. Rutter-Rex Manufacturing Co., Inc., et al., 396 U.S. 258 (1969), the
Supreme Court found it "deplorable" that "innocent employees had to live
for some years on reduced incomes" as a result of an employer's
discrimination against them.
17 Truck Drivers, Oil Drivers, Filling Stalion and Platform Workers' Union
Local No. 705, IBT (Randolph Paper Compani,), 227 NLRB 694 (1977), and
cases cited therein.
599
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
part of the vindication of the public policy which the Board
enforces." 18 It has been long established, by the Board and
the courts, that the "finding of an unfair labor practice ...
is presumptive proof that some backpay is owed,"'19 and
that the Board has broad authority in determining backpay
remedies that will "bring about a restoration of the
situation as nearly as possible, to that which would have
obtained but for the illegal discrimination," 20 and that will
make discriminatorily terminated employees whole for any
losses of earnings suffered as a result of the unlawful
terminations.2 1 It is also well established that, after the
Regional Director has computed the gross amounts of
backpay due the discriminatees in question, the burden of
proving events that warrant a diminution of these amounts
devolves upon the party who unlawfully terminated the
backpay claimants, and uncertainties as to the amounts
due are resolved against that party.2 2
Accordingly, on the basis of the findings, conclusions,
and Board and court rulings explicated above, I find that
Respondent has failed to meet its burden to show, by
credible and probative evidence, that the grounds it has
asserted for the mitigation of its backpay liability warrant
any diminution of the amounts found due in the backpay
specification, as amended. In conclusion, therefore, I find,
based upon the totality of the relevant evidence in this case,
that Respondent is liable to make the backpay claimants
IR Phelps Dodge Corporation v. N. LR.B., 313 U.S. 177, 197; N.L.R B. v.
International Longshoremen's and Warehousemen's Union, Local No. 13, 549
F.2d 1346 (C.A. 9, 1977).
19 N.L.R.B. v. Mastro Plastics Corporation and French American Reeds
Manufacturing Company, Inc., 354 F.2d 170, 178 (C.A. 2, 1965), cert. denied
384 U.S. 972 (1966); N.L.R.B. v. Madison Courier, Inc., supra; N.L.R.B. v.
NHE/Freewav, Inc., supra.
whole, pursuant to the Board Order enforced by the court
of appeals, by payment to each of them of the amounts
specified in the backpay specification, as amended. I shall
therefore recommend that the backpay specification, as
amended at the hearing and herein, be adopted, and that
the backpay claimants be awarded the amounts of net
backpay found in accordance therewith to be due to them.
ORDER
The Respondent, Lizdale Knitting Mills, Inc., Brooklyn,
New York, its officers, agents, successors, and assigns, shall
satisfy its obligation to make whole the backpay claimants
here involved by payment of the amounts of net backpay
set forth opposite their names:
Abelardo Ceballos
Luz Maria Villada Ceballos
Marta Ceballos Guerrero
Eucarias Ceballos
$3,814
3,627
5,993
6,413
Each of the foregoing amounts shall be paid plus interest
thereon accrued to the date of payment at the rate of 6
percent per annum, computed in the manner specified in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962), minus
any tax withholdings required by Federal and state laws.
20 Phelps Dodge Corp. v. N. L R.B., supra; Bagel Bakers Council of Greater
New York v. N.LR.B., 555 F.2d 304 (C.A. 2, 1977).
21 Golay & Co., Inc. v. N.LR.B., 447 F.2d 290 (C.A. 7, 1971), cert. denied
404 U.S. 1058 (1972); Golden State Bottling Co., Inc. v. N.LR.B., 467 F.2d
164 (C.A. 9, 1972); United Aircraft Corporation, supra.
22 N.LR.B. v. Miami Coca-Cola Company, supra; United Aircraft
Corporation, supra.
600