Mademoiselle Knitwear, Inc.

National Labor Relations Board - Board Decisions

Nov 21, 1989

297 N.L.R.B. 272 (N.L.R.B. 1989)

272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Mademoiselle Knitwear, Inc. and Knitgoods Work-
ers' Union, Local 155, International Ladies'
Garment Workers' Union, AFL-CIO. Case 29-
CA-12824
November 21, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On May 22, 1989, Administrative Law Judge
Raymond P Green issued the attached decision
The General Counsel filed exceptions and a sup-
porting brief The Respondent filed exceptions, a
supporting brief, and an answering brief to the ex-
ceptions and briefs filed by the General Counsel
and the Charging Party The Charging Party filed
exceptions, a supporting brief, an answering brief
to the Respondent's exceptions, and a motion to
strike material contained in Appendix A to the Re-
spondent's brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions' and briefs and
has decided to affirm the judge's rulings, findings,2
and conclusions 3 and to adopt the recommended
Order
I Because the material in Appendix A to the Respondent s brief was
not made part of the formal record, the Charging Party s motion to strike
is granted See Consolidated Casinos Corp, 266 NLRB 988 (1983), Today s
Man, 263 NLRB 332 (1982)
2 The General Counsel and Charging Party have excepted to some of
the Judge's credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cu- 1951) We have carefully examined the record and
find no basis for reversing the findings
In excepting to the Judge's finding that the Respondent violated Sec
8(a)(1) of the Act by imphedly threatening to close the plant, the Re-
spondent contends that the substance of the finding was neither alleged
nor fully litigated at the trial The amended complaint alleges that the
Respondent threatened to close Its plant and move the facility to another
location in order to induce employees to abandon their support for Local
155 At the trial, the Respondent s president testified that while discuss-
ing Local 155's organizing activities, he told employees about a fire in
Puerto Rico caused by a labor dispute that had killed many people He
then told employees he would close the plant if there was a danger of
anyone being hurt The judge found that these statements constitute an
implicit threat to close the plant if Local 155 continued its organizing ac-
tivities We find that the judge's finding is consistent with the amended
complaint s general allegation of a threat of plant closure
3 In finding that the Respondent did not violate Sec 8(a)(3) and (1) of
the Act by discharging employee Cesaer Alarcon, the judge did not state
whether the General Counsel established a prima fame case Assuming ar-
guendo that the evidence does establish a prima facie case, we find that
the Respondent rebutted this by proving that Alarcon would have been
discharged in any event because he was caught falsifying his timecard
Wright Line, 251 NLRB 1083 (1980), enfd 622 F 2d 899 (1st Cm 1981),
cert denied 455 U S 989 (1982), approved in NLRB v Transportation
Management Corp, 462 U S 393 (1983)
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Mademoi-
selle Knitwear, Inc , Brooklyn, New York, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order
Jonathan Leiner, Esq , for the General Counsel
Robert Goldstein, Esq and Roy I Martin, Esq (Bizar,
D'Alessandro, Shostak & Martin), for the Respondent
Thomas Kennedy, Esq and Leanard Greenwald, Esq
(Lewis, Greenwald, Kennedy & Lewis), for the Charging
Party
DECISION
STATEMENT OF THE CASE
RAYMOND P GREEN, Administrative Law Judge This
case was tried in Brooklyn, New York, on various dates
in December 1988 and January 1989 The charge was
filed on January 20, 1987, 1 and the complaint and
amended complaint were issued on May 29 and October
8, 1987, respectively In pertinent part the amended com-
plaint alleges as follows
1 In December 1986 and January 1987, the Respond-
ent threatened to close and/or move its facility if the em-
ployees selected Local 155, ILGWU, AFL-CIO as their
bargaining representative
2 In December 1986 and January 1987, the Respond-
ent created the impression of surveillance and engaged in
surveillance of its employees' union activities
3 In January 1987, the Respondent threatened em-
ployees with the closure of the plant and with discharge
because of their activities on behalf of Local 155
4 In January 1987, the Respondent warned and ad-
vised its employees not to talk with representatives of
Local 155
5 In January 1987, the Respondent denigrated Local
155 by calling its representatives crooks and thieves
6 In January 1987, the Respondent promised its em-
ployees increased medical benefits and higher wages in
order to induce them to refrain from joining or assisting
Local 155
7 On or about January 16, 1987, the Respondent dis-
charged its employee Cesar Alarcon because of his ac-
tivities on behalf of Local 155 and because of his other
concerted activities for mutual aid and protection
On the entire record, including my observation of the
demeanor of the witnesses, and after considering the
briefs filed, I make the following
FINDINGS OF FACT
I JURISDICTION
The Respondent admits and I find that it is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor
' All dates are in 1987 unless otherwise indicated
297 NLRB No 37
MADEMOISELLE KNITWEAR 273
organization within the meaning of Section 2(5) of the
Act
II ALLEGED UNFAIR LABOR PRACTICES
The Company is engaged in the business of making
knitted sweaters At the time of the events in this case,
the Company was located at 35th Street in Brooklyn,
New York, and employed about 600 persons Since that
time, the Company has moved its facility to its present
location
For many years the Company has been a member of
the Williamsburg Trade Association, a multiemployer as-
sociation that has a collective-bargaining relationship
with Local 17-18 United Production Workers In De-
cember 1986 and January 1987 collective bargaining was
occurring between that Union and the Association for a
new contract to replace the contract which ran from
March 20, 1984 to March 19, 1987 Shraga Newhouse,
the president of the Respondent, is also the president of
the Williamsburg Trade Association
The Charging Party (Local 155) commenced a cam-
paign to organize the employees of Mademoiselle Knit-
wear in the latter part of December 1986 In this regard,
the Union assigned four persons who stationed them-
selves near the plant entrance and handed out literature
and authonzation cards to employees when they came to
work in the morning and when they left at night In gen-
eral, this activity took place from about 7 to 8 15 a m
and from about 4 to 6 15 p m Since this activity was car-
ned out in the middle of the winter, much of the solicita-
tion occurred when it was still dark outside
The Union's witnesses contend that from almost the
inception of the picketing and for the next 2 weeks, the
Company stationed Carlos Garcia, a supervisor to stand
continuously at the front entrance in the morning and
evening to engage in surveillance of the Union's efforts
to organize the employees While denying that Garcia
was there in the evening, the Company does concede
that he was stationed at the front entrance every morn-
ing while employees entered the premises Apart from
stationing himself at this location, there was, however,
no evidence that Garcia took notes, told people to leave,
or actively impeded the Union's efforts to organize
According to former employee Manuel Polanco, some-
time between December 15 and 20, 1986, Supervisor Bill
Hinds approached him and said that Polanco had been
seen talking to the people from the Union Hinds also is
alleged to have told Polanco that the Company did not
want the employees to talk to people from other unions
Polanco asserts that when he said that the employees had
the nght to elect whichever union they wanted, Hinds
said that if they saw Polanco talking to the other union,
they would have to remove him Hinds allegedly said
that the outside union's only aim was to close companies
Polanco states that sometime later Hinds called him
into his office and said that management had again seen
Polanco talking to the Union He asserts that Hinds said
that if he saw Polanco doing this again he would be
fired
Polanco finally testified that about 3 days thereafter,
Vice President Harry Brach called him into the office
and said that he knew that people were talking to the
Union outside According to Polanco, Brach stated that
if the outside Union came in, the Company would have
to close the plant, whereupon employees and manage-
ment would all lose their jobs
Hinds and Brach credibly denied the above alleged
conversations Hinds and Brach state that in December
and January they spoke with Polanco but that it was
about the latter's poor attendance and attitude on the
job 2
Cesar Alarcon worked on the day shift Prior to the
time of his discharge on January 16, 1987, he had re-
ceived no disciplinary actions Alarcon claims that in
early January, as he left work, he signed a union authori-
zation card for Local 155, given to him by Ramanita
Guzman at the plant entrance He asserts that Garcia
saw this transaction
Alarcon states that on January 12, Supervisor Rick
Oliff asked him why he was getting involved with the
outside Union Oliff allegedly told Alarcon that if he did
get involved with that Union he would cause Alarcon to
be fired At the time of the hearing, Oliff no longer was
employed by the Company and he did not testify
According to Alarcon, on the morning of January 13,
he distributed Local 155 authorization cards to employ-
ees in the quality control department He asserts that Su-
pervisor Garcia, who was standing 20 to 25 feet away,
saw him
Alarcon testified that on January 14, Pedro Ortiz dis-
tributed literature on the shop floor for Local 17-18 but
refused to give Alarcon a copy when asked Alarcon
states that Ortiz told him, "You had better stop talking
about Local 155 otherwise you are going to get fired
Just keep your mouth shut" This was denied by
Ortiz I also note that there is a dispute as to whether or
not Ortiz was, at the time of this alleged transaction, a
supervisor within the meaning of the Act
In the meantime, on January 12, 1987, Shraga Ne-
whouse held a series of 9 or 10 meetings with the Com-
pany's 600 employees In support of his contention that
at these meetings Newhouse made illegal promises and il-
legal threats, the General Counsel presented four wit-
nesses, Manuel Polanco, Cesar Alarcon, Guadelupe
Rauda, and Lleny Guzman, who testified as to three of
the meetings
Rauda testified that at the meeting she attended Ne-
whouse spoke in English and Carlos Garcia translated
into Spanish She testified that the employees were told
that there was a new union outside that wanted to take
over the factory, that Newhouse would not allow that
and would take the labor to Haiti or Santa Domingo
She states that Newhouse, through Garcia, said that he
didn't want to deal with Local 155 because that union
had "thrown away many factories," and that if we had
that union, there would be layoffs for some of the work-
ers According to Rauda, Newhouse said that the em-
2 In October and December 1986, Polanco received warnings relating
to his job performance Ultimately he was discharged on January 25,
1987, and he testified that he considered his discharge to have been
unfair An unfair labor practice charge was filed on his behalf alleging
that his discharge was unlawful but that charge was dismissed by the Re-
gional Director, who concluded that he had been discharged for cause
274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees should not let Local 155 "wash their brains,"
and that the existing Union (Local 17-18) would give
new benefits On cross-examination, Rauda testified that
Newhouse mentioned something about a hotel fire in
Puerto Rico and stated that he would close the plant
rather then have a fire like that She also stated that Ne-
whouse said that there were negotiations in progress
with Local 17-18 and that he reminded employees of the
Company's existing plan to move soon to a new factory
which had a new cafeteria (Previously, the employees
had been taken out to see the site of the new factory and
had been informed of what it would be like )
Cesar Alarcon, who speaks Spanish and English, testi-
fied that Newhouse said that he was aware of a union
outside and stated that they were crooks and gangsters
and that all they wanted was money He states that Ne-
whouse said that although "Local 17-18 were also
crooks," at least they allowed him to stay in business,
whereas the other union would cause "us to lose our
jobs"
According to Alarcon, he became very vocal in this
meeting and asked a lot of questions He states that when
he asked about raises and Blue Cross and Blue Shield,
Newhouse said that this would cost him a lot of money
and cause him to go into bankruptcy Alarcon states that
Newhouse said that he wanted to stay in the United
States but that Local 155 would cause him to close the
plant, go bankrupt, and/or move to Japan where labor
costs were lower He also states that Newhouse explicit-
ly said that he would fire anyone who signed a card for
Local 155 (Rauda testified that at her meeting Ne-
whouse said that he did not care if people signed cards
for Local 155)
Alarcon went on to testify that at the meeting Ne-
whouse, in response to a question about medical insur-
ance by employee Vincent Mareda (who did not testify),
said that if an employee incurred medical expenses be-
tween $20,000 and $100,000 such expenses would be paid
for out of Newhouse's own pocket
Lleny Guzman testified that she attended the same
meeting as Alarcon In her version, Newhouse said that
the incumbent Union was stealing from us but that the
outside union would do the same She states that he said
that he would not allow anyone to take the business
away from him, that he was going to move to a new
place and that he could move to Japan She states that
Newhouse talked about the new factory and the new
cafeteria that had been planned and that when an em-
ployee asked about surgery bills, he said that he would
pay from his own pocket if he had to Guzman stated
that she could not recall Newhouse saying anything
about violence or about negotiations with the incumbent
Union She confirms that during this meeting Alarcon
translated some of the employees' questions to Ne-
whouse
Manuel Polanco testified that Newhouse spoke to the
employees on the night shift, stating that the outside
Union was only good to close down companies and that
if it came in, the Company would be obliged to move to
Colombia or Haiti where they could pay less for the
workers He also testified that Newhouse spoke of the
new factory with its new cafeteria but did not talk about
negotiations with Local 17-18 On cross-examination Po-
lanco testified that Newhouse said that the employees
could choose or talk to whatever union they wanted and
would not be discharged or disciplined
According to Alarcon, after his meeting was over, he
was asked to stay behind and spoke with Newhouse He
states that Newhouse asked him if he would like to be a
shop steward for Local 17-18 Alarcon states that he de-
clined, stating that he wanted to be elected by the work-
ers
Shraga Newhouse testified that he was aware since
December 1986 of the Union's organizing activity out-
side the factory, but paid little attention to it at first He
states that in January 1987 Plant Manager Jeffrey
Gagnon urged him to do something about the heightened
union activity According to Newhouse, he finally decid-
ed to hold a series of meetings with the employees upon
Gagnon's urging and after hearing about a hotel fire in
Puerto Rico that occurred in connection with a labor
dispute These meetings, he states, were held on one day
and generally involved 40 to 50 employees at each meet-
ing He states that he used translators for Spanish, Patois,
Polish, and Russian Newhouse also states that he did not
use a written speech and that his remarks became more
refined as the day wore on and as he became more
aware of the employees' concerns
According to Newhouse, he generally opened each
meeting by stating that he was aware that employees
were concerned about their safety and the activity that
was going on in the street He states that he told them
that there was nothing to worry about, that he would
shut down operations if there was any danger of anyone
being hurt Newhouse denied, however, that he threat-
ened to move the Company to Japan or anywhere else
or that he threatened to go into bankruptcy He states
that what he did say was that the Company was unique
in that it was able to compete against companies in the
Orient in terms of price and design and that he intended
to stay in this country On cross-examination, however,
Newhouse stated that he had the worst opinion of the
ILGWU which he felt has put many companies out of
business
Newhouse also testified that at these meetings he
spoke of the ongoing negotiations with Local 17-18 but
did so in general terms so as not to promise anything He
states that he told the employees, without being specific,
that there were some demands of the Union that might
be met and some that would not According to Ne-
whouse, he reminded the employees of the new factory
and told them that there would be a new cafeteria and a
day care center In connection with the new plant, he
states that some employees had questions about job secu-
rity and transportation As to the former, Newhouse
states that he told them that all present employees would
be given first priority as far as jobs at the new factory
Newhouse testified that at each meeting employees asked
questions, including questions about medical benefits He
asserts that in this respect, he made no promises He also
recalled that one of the employees asked if it was true
that the president of Local 17-18 was convicted of a
crime and that he responded that it was true, but that it
MADEMOISELLE KNITWEAR 275
was no big deal because plenty of union leaders and
company executives also were crooks (He denies saying
that the ILGWU were crooks )
According to Newhouse, Alarcon had a lot of ques-
tions at the meeting that he attended He states that he
told Alarcon that he was an intelligent young man, and
that Alarcon asked if he could represent the employees
and act as a sort of liaison to the Company Newhouse
states that he told Alarcon that it was all nght if the
workers chose him
I note that prior to the meetings of January 12 there is
no evidence that Local 155 in any way engaged in any
type of violence or intimidation Moreover, assertions by
the Respondent that employees were harassed by the
Union's organizers on the street, were vague in nature,
and not supported by employee witnesses, except for
one, who asserted that one of the organizers took a pho-
tograph of him At most, it seems that what the Compa-
ny called harassment, merely amounted to attempts by
the Union to engage in normal organizing activities
At lunchtime on January 15, many of the employees,
including Alarcon held a meeting on the plant floor
around the desk of Supervisor Carmella Cevalloz, who
also was present According to Alarcon and Guzman, at
some point in the meeting, Carlos Garcia passed by and
stopped to look at the meeting The General Counsel al-
leges that the Respondent by Cevalloz and Garcia there-
by engaged in surveillance
Alarcon claims that at the January 15 meeting, he
spoke up in support of Local 155 and urged employees
to replace Local 17-18 Alarcon also prepared a petition
which he asked employees to sign at this meeting This
petition stated
I Cesar Alarcon, worker of Mademoiselle, promise
to support the rights of all the persons whose signa-
tures appear in this document before the Union and
before their bosses for whom they work, under the
17-18
Thus, contrary to the contention that Alarcon, at this
meeting, was urging employees to replace Local 17-18
with Local 155, it seems from the face of his petition,
that he was seeking to have himself selected to represent
the employees in the context of Local 17-18's relation-
ship with the Company
According to Alarcon, at about 2 30 or 3 p m on Jan-
uary 15, Supervisor Oliff, upon seeing Alarcon with the
petition, asked to see it which Alarcon refused Alarcon
states that Oliff then snatched the paper out of his hand
and said that it would be better if Alarcon quit
Sometime around 5 p m Alarcon rece&ed permission
from Oliff to leave early After leaving, Alarcon re-
turned at 5 55 pm and punched out Unbeknown to
Alarcon, Plant Manager Gagnon witnessed him punch-
ing out, and Gagnon, after making inquiries, found out
that Alarcon had left work earlier The Respondent as-
serts that it had posted near the timeclock a notice, in
English, Spanish, and French, reading
Grounds For Immediate Termination
Immediate Termination Stealing of company prop-
erty, willful destruction of company property, forg-
ing of tickets and punch cards, drinking and the use
of drugs, during work hours, and the solicitation of
drugs are grounds for Immediate Termination
On the morning of January 16, Gagnon discharged
Alarcon telling him that the reason was because he had
falsified his timecard Alarcon claims that he then was
escorted out of the plant by Oliff who said, "I told you
to keep your mouth shut and stay out of trouble If you
had kept your mouth shut, you would never have gotten
into this trouble in the first place"
At the outset of this trial the General Counsel asserted
that he would prove that the Company's reason for dis-
charging Alarcon was a fabrication inasmuch as Alarcon
could not have punched out at 5 55 p m because at that
precise time he was at a video rental store taking out a
movie In support of that contention, the General Coun-
sel offered into evidence a copy of a card purporting to
show that Alarcon rented a movie from Hank's Video at
precisely 5 55 p m
As the trial progressed, it became more and more
doubtful that the General Counsel's exhibit (the copy of
the card from the video store) was a true copy of the
original record generated by that company Finally, after
much testimony, including the testimony of a handwrit-
ing expert, the General Counsel and the Charging Party
conceded that Alarcon did in fact come back to the plant
on January 15 and punched out at 5 55 p m It thus
became abundantly clear that not only had Alarcon lied
during his testimony and in his pretrial affidavits, but
that he was responsible for forging a document which he
expected to provide him with evidence to support his
claim
Notwithstanding the above, the General Counsel and
the Charging Party continued to insist that the Respond-
ent violated the Act by discharging Alarcon, now
switching their argument to disparate treatment In this
respect, they pointed to a situation involving an employ-
ee named Tomas Herrera In Herrera's case, the evi-
dence shows that he left to go on vacation on December
18, 1986, and although he did not punch out, his card
was found punched at the end of the day Also, although
he was scheduled to come back on January 5, Herrera
did not return until January 6 and did not call to let the
Company know that he would be back late On January
6, Gagnon issued two warnings to Herrera, one for the
fact that his card had been punched after he left, and the
other for failing to return on time without calling Herre-
ra was, however, allowed to continue his employment
Gagnon testified that Herrera's case was unlike Alar-
con's because Herrera was not caught redhanded, and
denied that he either punched his card himself or had
anyone else punch it for him Gagnon also testified that
during the time that Herrera was in Santa Domingo Her-
rera left word with the receptionist that he had forgotten
to punch out on December 18 The General Counsel
seems to feel that Gagnon's testimony about Herrera's
call from Santa Domingo was "spectacularly" inconsist-
276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent with the second warning, which asserts that Herrera
failed to to return to work on time and that no call was
received It is obvious, however, that one has nothing to
do with the other and that the two things are not incon-
sistent at all The second warning merely expresses the
fact that Herrera did not return to work at the scheduled
time and that he had failed to call in to say that he
would be late I do not think that the wording of this
warning is inconsistent with Gagnon's testimony that
Herrera spoke to the receptionist during his vacation and
told her that he had forgotten to punch his timecard
before he left
In support of its position, the Company pointed to sev-
eral instances occurring before and after Alarcon's dis-
charge where other employees were discharged either
for falsifying timecards or for engaging in analogous
wrongful acts, such as stealing a small number of sweat-
ers
On or about January 20 the Union moved its organiz-
ers to the subway entrance that is about 3 to 4 blocks
away from the plant The General Counsel alleges that
the Respondent engaged in surveillance at this location
when Carlos Garcia, on various occasions, came over
near the subway entrance and watched the organizers try
to talk to employees on their way into work Garcia, on
the other hand, testified that on a few mornings he went
to a coffeeshop near the subway station to get coffee
Regarding the alleged subway surveillance, union or-
ganizer Luis Alcevado testified that on January 28 he
saw Garcia hanging around the subway entrance at or
about 6 50 a m He further testified that for a period of
about 5 days Garcia patrolled back and forth between
the subway entrance and the coffeeshop On cross-exami-
nation, however, Alcevado testified that as soon as the
organizers arrived at the station at or about 7 a m when
employees began to arrive Garcia would walk away
Cesar Alarcon also gave testimony regarding this alleged
surveillance, but as I have concluded that he was an un-
believable witness, I shall disregard his testimony on this
and all other subjects Finally, Guadelupe Rauda testified
that on one occasion after the Union moved to the
subway entrance she saw Garcia at the coffeeshop about
7 a m
On February 11, the Union ceased its organizational
efforts at the Respondent
III DISCUSSION
In my opinion the evidence in this case does not estab-
lish that Cesar Alarcon was discharged because of his ac-
tivities on behalf of Local 155 as alleged in the com-
plaint Rather, the evidence establishes that the Company
discharged Alarcon because he falsified his timecard on
January 15, 1987 In this respect, the evidence used by
the General Counsel to establish that the Company treat-
ed Alarcon in a disparate manner did not show a suffi-
ciently established pattern from which to conclude that
but for his alleged union activities he would not have
been discharged Moreover, because it was established
beyond doubt, not only that Alarcon lied about the inci-
dent leading up to his discharge, but that he also fabri-
cated evidence to support his contention, I doubt his tes-
timony that he was actually engaged in activity in sup-
port of Local 155 At most, the evidence unequivocally
shows that Alarcon, at one of the meetings held by Ne-
whouse on January 12, asked a lot of questions, and that
on January 15 he tried to have a petition signed making
him a spokesman for the employees in the context of the
Company's contract with the incumbent union, Local 17-
18
The General Counsel alleges that in December 1986
and January 1987 the Respondent by Supervisor Bill
Hinds and Vice President Harry Brach threatened em-
ployee Manuel Polanco with discharge and also threat-
ened to close the plant if Local 155 became the bargain-
ing representative As I have previously concluded that
Hinds and Brach credibly denied these alleged state-
ments, I shall recommend that these allegations of the
complaint be dismissed
I shall also recommend the dismissal of those allega-
tions which are based solely on the uncorroborated testi-
mony of Cesar Alarcon Thus, I find no merit to the
General Counsel's contention that Supervisor Rick Oliff,
on or about January 12, interrogated Alarcon regarding
his activities vis a vis the "outside union," and threatened
Alarcon with discharge I also find no merit to the con-
tention that on or about January 14 Pedro Ortiz warned
Alarcon to keep his mouth shut and threatened Alarcon
with discharge if he kept talking about Local 155 Final-
ly, I discredit Alarcon's assertion that on January 16
Oliff told him that if he had kept his mouth shut he
would never have gotten into trouble
The General Counsel contends that during the series
of meetings that Newhouse held with employees on Jan-
uary 12, he threatened to close, transfer, and/or bankrupt
his business He also contends that Newhouse promised
benefits in order to influence employees to refrain from
joining or supporting Local 155
It is really not that clear what Newhouse said to em-
ployees at the series of meetings held on January 12 For
one thing, he did not read from notes and his remarks
were not recorded verbatim Also, it seems that his re-
marks, while highlighting certain themes, varied from
one meeting to another I also note that Newhouse spoke
in English and that his remarks were translated into four
different languages The people who testified on behalf
of the General Counsel spoke Spanish as their first lan-
guage and spoke or understood English in varying de-
grees Finally, I note that of about 600 employees who
attended these meetings, the General Counsel produced
four employees, all of whom had been discharged by the
Company and were not exactly neutral in their feelings 3
'The Union filed a charge in Case 29-CA-12840 alleging that the
Company had constructively discharged Lleny Guzman on January 22,
1987 That charge was dismissed by the Regional Director on April 30
In part, the Regional Director concluded that Guzman was discharged
because of her refusal to do her assigned work
I have already noted above that the Regional Director had dismissed a
charge which had been filed on behalf of Manuel Palanco
The record shows that Guadalupe Rauda was discharged by the Com-
pany in May 1987 It appears that no charge was filed with respect to her
discharge The record also shows that Rauda had been a longtime
member of the ILGWU prior to her employment at Mademoiselle
MADEMOISELLE KNITWEAR 277
Based on the record as a whole, including demeanor
considerations, it is my opinion that Newhouse told em-
ployees that negotiations were ongoing with Local 17-18
the incumbent Union, and although he could not be spe-
cific, there was a possibility that a new contract hould
include improvements in medical insurance and other
benefits I also conclude that he told them about the new
factory to which they would soon be moving and de-
scribed the new cafeteria along with the possibility that
there might be day care facilities available As these
statements merely related, in one instance what the em-
ployees already knew (i e, the new factory), and in the
other merely reported the fact that negotiations were on-
going with the incumbent Union, neither can, in my
opinion, be described as illegal promises of benefits
More problematical, in my opinion, are the statements
regarding plant closure In this regard, I discredit the
General Counsel's witnesses insofar as they contend that
Newhouse either threatened to close the plant, move the
plant, or put the plant into bankruptcy if Local 155
became the bargaining representative On the other hand,
it is admitted that Newhouse told employees about a fire
in Puerto Rico that had killed many people and had been
caused by a labor dispute with another union Further, it
is clear that in doing so„ he imphedly linked that event
with Local 155's organizing activity outside the plant,
and explicitly stated that if there was a danger of anyone
being hurt he would shut down operations
In NLRB v Gissel Packing Co, 395 U S 575, 618
(1969), the Supreme Court in a case involving alleged
threats of plant closure stated
Thus, an employer is free to communicate to his
employees any of his general views about unionism
or any of his specific views about a particular
union, so long as the communications do not con-
tain a "threat of reprisal or force or promise of ben-
efit" He may even make a prediction as to the pre-
cise effects he believes unionization will have on his
company In such a case, however, the prediction
must be carefully phrased or the basis of objective
fact to convey an employer's belief as to demonstra-
bly probable consequences beyond his control or to
convey a management decision already amved at to
close the plant in case of unionization If there
is any implication that an employer may or may not
take action solely on his own initiative for reasons
unrelated to economic necessities and known only
to him, the statement is no longer a reasonable pre-
diction based on available facts but a threat of retal-
iation based on misrepresentation and coercion, and
as such without the protection of the first amend-
ment We therefore agree with the court below that
"[c]onveyance of the employer's belief, even though,
sincere, that unionization will or may result in the
closing of the plant is not a statement of fact unless,
which is most improbable, the eventuality of closing
is capable of proof"
In delineating the boundary between a lawful predic-
tion and an unlawful threat, the Board in National Mi-
cronetics, 277 NLRB 993, 995 (1985), stated
The judge concluded that by equating unioniza-
tion with unprofitablilty and unprofitablilty with
plant relocation, the Respondent made illegal
threats to close the plants and relocate if the Union
won the election
We agree with the judge's conclusion that these
statements were illegal threats, but only for the fol-
lowing reasons As we stated above, an employer
may lawfully tell its employees that changed eco-
nomic conditions due to unionization could cause It
to move elsewhere Thus, where an employer points
out specific effects of unionization that might cause
it to become unprofitable, such as higher wages or
production losses during strikes, it may properly
raise the possibility that a loss of jobs could result
from unionization In this case, however, the Re-
spondent did not point to any objective facts that
would be likely to change as a result of unionization
and cause it to become unprofitable Instead, the
Respondent merely noted that its Kingston plants
were already uncompetitive, when compared to its
plants in California and Mexico and to its Japanese
suppliers, and stated that it could easily relocate
these unprofitable plants if the Union won the elec-
tion Furthermore, the Respondent made these
statements at the end of a long an union election
campaign during which five of its highest manage-
ment officials had repeatedly made explicit threats
to close the Kingston plants and relocate the work
m California if the Union won the election
Illustrative of the difficulty in determining the dividing
line between predictions and threats, one may consider
the Board's two decisions in Sangamo Weston Inc , 273
NLRB 256 (1984) In the original decision (reported at
251 NLRB 1597 (1980)), the Board affirmed a judge's
findings that certain statements about a union's record of
strikes and violence constituted thinly veiled threats of
plant closure and job loss if unionization occurred On
reconsideration, the Board concluded that the statements
in question did not violate the Act The Board stated
The Respondent informed the employees that the
Union had taken employees out on strike at other
companies and that certain adverse consequences
had ensued, that strikers received no pay or benefits
during a strike and could be permanently replaced,
and that should the Union win the election and
make unreasonable bargaining demands it would
either have to drop those demands or strike The
Respondent did not tell employees if they selected
the Union it would close the plant or take other re-
prisals Instead, the Respondent specifically reas-
sured employees it would bargain in good faith with
the Union if it won the election and would take no
reprisals in that event
On the other hand, the Board in the same case, reaf-
firmed that the respondent violated the Act when a man-
ager told employees that if the union came in and a
strike ensued the company might move to Texas
278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In Kawasaki Motors Mfg Corp, 280 NLRB 491 (1986),
enfd 850 F 2d 524 (9th Cir 1988), the Board concluded
that certain employer statements made in conjunction
with the showing of a video tape portraying the Union's
"violent strike history" was not violative of the Act In
that case, the employer's representative spoke of the
Company's financial and competitive situation and
backed up his statements with undisputed objective eco-
nomic facts which showed the employer's poor financial
condition The Board noted (at 492) "The Respondent's
officials clearly created the impression that any decision
to close the plant would be based on its profitability and
competitive status in the world market Their predictions
of possible closure were not based on reasons unrelated
to economic necessities"
The present case, in my opinion, is distinguishable
from Kawasaki Motors, supra To be sure, there could be
nothing illegal about reminding employees about the fire
in Puerto Rico, which was related to a labor dispute and
was at the time reported in the media I also would not
fault statements to the effect that the Employer would
take every reasonable step to provide for the safety of its
own employees in the event that there was any danger
Nevertheless, it seems to me that what the Respondent
did here was to attempt to connect in the minds of its
employees (many of whom were Spanish-speaking) the
Puerto Rican fire, involving a completely different labor
organization, with Local 155's organizing activity which
was carried out in a peaceful manner Moreover, Instead
of telling employees that measures would be taken to
assure their safety, Newhouse stated that if danger was
imminent he would close down the Company's oper-
ations To my mind to be told that the employees would
lose their jobs is a far cry from any assurance that the
Company would look out for their security As the Com-
pany had absolutely no basis for assuming or asserting
that Local 155 would engage in any violent conduct, it is
my opinion that its statements regarding plant closure
contravened the Act
With respect to the January 12 meetings, the General
Counsel also contends that Newhouse disparaged the
Charging Party by calling them crooks At most, the evi-
dence in this regard was that when asked if it was not
true that the president of the incunbent Union, Local 17-
18, had been convicted of a crime, Newhouse said that
even if that Union had crooks, so too did Local 155
Such a statement is not viewed by me as violative of the
Act Newsday, Inc , 274 NLRB 86, 95 (1985)
The General Counsel finally contends that during De-
cember 1986 and January 1987 the Respondent engaged
in surveillance of the Union's activities These conten-
tions are based on evidence that (1) for a period of time
the Respondent assigned Supervisor Garcia to stand at
the front door when the employees entered and left the
factory, (2) that on January 15 employees held a meeting
inside the factory during the lunch hour, which was ob-
served by Supervisors Garcia and Cevalloz, and (3) that
after January 20 when the Union moved its organizing
activity to the subway 4 blocks away, Garcia moved
with them and stationed himself so as to observe employ-
ees talking with union representatives
During the period from late December 1986 to Janu-
ary 20, 1987, the Union's organizational efforts were car-
ried on nght outside the front entrance to the factory
There was no evidence, however, to suggest that they
trespassed on the Respondent's property During much
of this time, the Company assigned Supervisor Garcia to
stand at the front entrance where he opened the door to
employees as they entered the factory There is no evi-
dence to suggest that Garcia made any notes, that he or-
dered any organizers to leave, or that he took any other
affirmative actions to prevent employees from talking
with the Union's representatives Under this set of facts,
it is my opinion that the Respondent did not engage in
illegal surveillance as the Union's activity was open and
public Hoschton Garment Go, 279 NLRB 565 (1986) 4
I also find no merit to the contention that the Re-
spondent by Garcia and Cevalloz engaged in surveillance
on January 15 In this regard the evidence establishes
that on that day, at the lunchbreak, a group of employ-
ees gathered around the desk of Supervisor Cevalloz and
had a meeting with her permission and in her presence
No one asked her to leave and in my opinion a conclu-
sion that Cevalloz engaged in unlawful surveillance in
these circumstances is absurd Similarly, evidence show-
ing that Garcia may have looked at this meeting being
held in the middle of the factory floor does not make out
a violation of the Act
Finally, I shall recommend that the alleged subway
surveillance allegation be dismissed Luis Acevado, one
of the Union's organizers testified that when the Union
moved to the subway he observed Garcia standing near
the restaurant across the street from the subway en-
trance Acevado further testified that he saw Garcia at
this location on about 5 days until early February 1987
Nevertheless, Acevado also testified that on each occa-
sion that Garcia was at this spot, Garcia left when the
union representatives arrived Thus, according to Aceva-
do's testimony, Garcia did not engage in surveillance of
the union activity because Garcia left the scene upon the
Union's arrival Although Rauda testified in support of
this allegation, her testimony merely was that on one oc-
casion she saw Garcia at the coffeeshop about 7 a m
(Alarcon's testimony on this contention is disregarded )
Therefore, it is my opinion that counsel for the General
Counsel has not carried his burden of proof with respect
to this allegation of the complaint
CONCLUSIONS OF LAW
1 By impliedly threatening to close the plant if Local
155 continued its organizational activities, the Respond-
4 In Impact Industries, 285 NLRB 5 fn 2 (1987), the Board found that
the Respondent had engaged in unlawful surveillance It stated
In Hoschton Garment Co the Board reaffirmed the principle
that an employer's mere observation of open, public union activity
on or near its property does not constitute unlawful surveillance" In
agreeing with the Judge that the Respondent unlawfully created the
impression of surveillance of its employees handbilling on its prem-
ises, we emphasize his findings that the Respondent engaged in
well-nigh continuous scrutiny of employee handbilling over a sub-
stantial period of time and for discriminatory reasons expelled em
ployee leafletters from its property Thus, the Respondent s conduct
went beyond the mere observation permitted by Hoschton
MADEMOISELLE KNITWEAR 279
ent threatened, restrained, or coerced its employees in
violation of Section 8(a)(1) of the Act
2 The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act
3 The Respondent has not violated the Act in any
other manner alleged in the complaint
REMEDY
Having found that the Respondent has engaged in cer-
tain 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 recommend-
ed 5
ORDER
The Respondent, Mademoiselle Knitwear, Inc its offi-
cers, agents, successors, and assigns, shall
I Cease and desist from
(a) Impliedly threatening its employees with plant clo-
sure if Kmtgood Workers' Union, Local 155, Internation-
al Ladies Garment Workers Union, AFL-CIO continues
to engage in organizational activities at or near its prem-
ises
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Post at its facility copies of the attached notice
marked "Appendix " 6 Copies of the notice, on forms
provided by the Regional Director for Region 29 after
being signed by the Respondent's authorized representa-
tive, 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 materi-
al
5 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading 'Posted by Order of the Nation-
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
Section 7 ot 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 protec-
tion
To choose not to engage in any of these protect-
ed concerted activities
WE WILL NOT impliedly threaten our employees with
plant closure if Knitgood Workers' Union, Local 155,
International Ladies Garment Workers Union, AFL-
CIO continues to engage in activities at or near our
premises seeking to solicit employees to join, assist, or
support that union
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exerc,se of
the rights guaranteed them by Section 7 of the Act
MADEMOISELLE KNITWEAR INC