Marcar Industrial Uniform Co.

National Labor Relations Board - Board Decisions

Jan 17, 1992

306 N.L.R.B. 27 (N.L.R.B. 1992)

27
306 NLRB No. 4
MARCAR INDUSTRIAL UNIFORM CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The judge credited the testimony of employee Monge that Plant
Manager Gadol told her that ‘‘[T]he union is not going to come in
here, not even by force,’’ but he made no finding that this separately
violated the Act, and the General Counsel excepts. We find merit
in the exception and find that Gadol violated Sec. 8(a)(1) by imply-
ing that it was futile for the employees to select the Union as their
bargaining representative.
2 The General Counsel excepted to the failure to order that the no-
tice to employees be posted in both English and Spanish. We agree
with the General Counsel and we shall modify the recommended
Order in this respect.
Marcar Industrial Uniform Co., Inc. and Inter-
national Association of Machinists and Aero-
space Workers, AFL–CIO. Case 24–CA–6201
January 17, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On July 18, 1991, Administrative Law Judge Lowell
M. Goerlich issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed exceptions, a supporting
brief, and an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order2 as
modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Marcar Industrial Uniform Co., Inc., Rio Grande, Puer-
to Rico, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Insert the following as paragraph 1(e) and reletter
the subsequent paragraph.
‘‘(e) Representing to employees that it would be fu-
tile for them to select the Union as their bargaining
representative.’’
2. Substitute the following for paragraph 2(a).
‘‘(a) Post at its Rio Grande, Puerto Rico plant cop-
ies of the attached notice marked ‘‘Appendix’’10 in
English and Spanish. Copies of the notice, on forms
provided by the Regional Director for Region 24, after
being signed by the Respondent’s authorized represent-
ative, 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 no-
tices are not altered, defaced, or covered by any other
material.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT ask employees what they think about
the union movement.
WE WILL NOT solicit employees to report to us
about the union movement.
WE WILL NOT tell our employees that their union ac-
tivities are being watched.
WE WILL NOT threaten our employees that if the
Union comes into the plant we will close it.
WE WILL NOT represent to our employees that it
would be futile for them to select the Union as their
bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
MARCAR INDUSTRIAL UNIFORM CO., INC.
Stanley A. Orenstein, Esq., for the General Counsel.
Victor M. Comolli, Esq., of San Juan, Puerto Rico, for the
Respondent.
Juan L. Maldonado, of Rio Piedras, Puerto Rico, for the
Charging Party.
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 It was stipulated that the next corporate name of the Respondent
is Ropa Sultana, Inc.
2 The facts found are based on the record as a whole and the ob-
servation of the witnesses. The credibility resolutions have been de-
rived from a review of the entire testimonial record and exhibits,
with due regard for the logic of probability, the demeanor of the wit-
nesses, and the teachings of NLRB v. Walton Mfg. Co., 259 U.S.
404, 408 (1962). As to those witnesses testifying in contradiction of
the findings, their testimonies have been discredited either as having
been in conflict with the testimonies of credible witnesses or because
the testimony was in and of itself incredible and unworthy of belief.
All testimony has been reviewed and weighed in the light of the en-
tire record. No testimony has been pretermitted.
3 The Respondent admitted this paragraph in the complaint.
4 Santos Monge explained in respect to the word movement,
‘‘Upon using the word movement, we understood it to have to do
with the union. There was no other word that we could associate
with the word, movement, that didn’t mean union.’’
DECISION
STATEMENT OF THE CASE
LOWELL M. GOERLICH, Administrative Law Judge. The
charged filed by International Association of Machinists and
Aerospace Workers, AFL–CIO (the Union) on July 9, 1990,
was served on Marcar Industrial Uniform Co., Inc.,1 the Re-
spondent, by certified mail on July 10, 1990. A complaint
and notice of hearing was issued August 23, 1990. In the
complaint, among other things, it was alleged that the Re-
spondent had engaged in the violation of Section 8(a)(1) of
the National Labor Relations Act (the Act).
The Respondent filed a timely answer denying that it had
committed the unfair labor practices alleged.
The matter came on for hearing on March 14, 1992, at
Hato Rey, Puerto Rico.
Each party was afforded a full opportunity to be heard, to
call, to examine and cross-examine witnesses, to argue orally
on the record, to submit proposed findings of fact and con-
clusions, and to file briefs. All briefs have been carefully
considered.
On the entire record in this case and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT,2 CONCLUSIONS, AND
REASONS THEREFOR
I. THE BUSINESS OF THE RESPONDENT
At all times material, the Respondent, a corporation au-
thorized to do business in the Commonwealth of Puerto
Rico, has been engaged in manufacturing industrial uniforms
and operates a facility located at Rio Grande, Puerto Rico
(the plant).
In the normal course and conduct of its business oper-
ations described above, the Respondent annually derives
gross revenues in excess of $500,000 and annually purchases
and receive goods and materials valued in excess of $50,000
directly from suppliers located outside the Commonwealth of
Puerto Rico.
The Respondent is, and has been at all times material, an
employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Facts
At all times material, Ralph Gadol (Gadol), has been, and
is now, plant manager of the Respondent, action on its be-
half, and at all times material has been, and is now, a super-
visor within the meaning of Section 2(11) of the Act and an
agent of Respondent within the meaning of Section 2(2) of
the Act.3
Additionally, the parties stipulated that ‘‘Angel Luis
Maldonado, who is also known as Wiso, his nickname,
Maldonado was a Section 2(11) supervisor and a Section
2(13) agent as defined by the National Labor Relations
Board as amended during the period of time contemplated by
the complaint in this case, number 24–CA–6201.’’
The General Counsel offered the following evidence as his
prima facie case.
The Union commenced the organization of the Respond-
ent’s employees in March 1990. The organizational efforts
took the form of organizational meetings, distribution of
handbills, and solicitation of union card signers. Sonia Santos
Monge, an employee of the Respondent, participated in the
union organizational campaign by passing out cards and dis-
tributing ‘‘papers’’ outside the plant. She also attended union
meetings. Gadol observed Santos Monge in the presence of
Juan L. Maldonado, the Union’s representative.
On May 11, 1990, Gadol engaged Santos Monge in con-
versation outside the office in the plant. Gadol asked Santos
Monge ‘‘what did [she] think of the movement,’’ she an-
swered that ‘‘she couldn’t say because [she] wasn’t very sure
of what was going on.’’ Gadol responded that ‘‘He wanted
the best for his employees. That anything that [she] saw of
the movement,4 that [she] should let him know about it.’’
Several days later while Santos Monge was explaining
what Gadol had said to her to a group of employees. Super-
visor Angel Luis Maldonado approached. Maldonado told
Santos Monge that she ‘‘should take care’’ because ‘‘they
had put a person to watch [her] to see what [she] was dong
in the union.’’ The surveillancer was Supervisor Abigail
Ramos from whom he received the information.
Again on June 7, 1990, Gadol engaged Santos Monge in
conversation at her machine. Gadol asked, ‘‘did you find out
what happened to Converse? She answered ‘‘No.’’ Gadol
then told her that ‘‘they closed Converse down because of
the Union . . . and the same thing that happened at Con-
verse is going to happen here. And because the union is not
going to come in here, not even by force.’’
The Union filed a petition for an election on June 1, 1990.
Hearing on the petition was commenced on June 19 and was
adjourned. It has been concluded because the ‘‘C’’ case
charge was filed in this case.
The Respondent offered Gadol as a witness for its defense.
He denied categorically the statements attributed to him by
Santos Monge. Thus, whether the Respondent committed un-
fair labor practices depends on the credibility of the wit-
nesses.
29MARCAR INDUSTRIAL UNIFORM CO.
5 In weighing the credibility of Santos Monge and Gadol I have
also considered she was a current employee of the Respondent, that
she had testified in the representation proceedings, that the Respond-
ent failed to call Angel Luis Maldonado, and that the General Coun-
sel failed to call corroborating witnesses in regard to the Maldonado
incident.
6 See Rossmore House, 269 NLRB 1176 (1984).
7 See St. Mary’s Home, 258 NLRB 1024 (1981).
8 See Hendrix Mfg. Co. v. NLRB, 321 F.2d 100 (5th Cir. 1963).
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
10 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Conclusions and Reasons Therefor
I carefully observed the demeanor of both Gadol and
Santos Monge and I conclude that Santos Monge was telling
the truth.5
Accordingly, I find that the Respondent violated Section
8(a)(1) of the Act:
1. By Gadol’s interrogation of Santos Monge as to what
she thought about the (union) movement.6
2. By Gadol’s solicitation of Santos Monge to report what
she saw of the (union) movement.7
3. By Maldonado’s representation that Santos Monge was
being watched to see what she was doing with the Union.
4. By Gadol’s clear implication to Santos Monge that if
the Union prevailed the Respondent would close the plant.8
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act,
and it will effectuate the purposes of the Act for jurisdiction
to be exercised here.
2. By interfering with, restraining, or coercing employees
in the exercise of rights guaranteed by Section 7 of the Act,
the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1).
3. The aforesaid unfair labor practices are unfair practices
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I recommend that it cease and desist
therefrom and take certain affirmative action designed to ef-
fectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, Marcar Industrial Uniform Co., Inc.
(Ropa Sultana, Inc.) Rio Grande, Puerto Rico, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees as to what they thought about
the union movement.
(b) Soliciting employees to report what they saw of the
union movement.
(c) Representing to employees that employees were being
watched to see what they were doing with the union.
(d) Representing to employees that if the union came into
the plant the plant would close.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the National Labor Relations
Act to engage in self-organization; to form, join, or assist
any union; to bargain collectively through a representative of
their own choosing; to act together for the purpose of collec-
tive bargaining or other mutual aid or protection; or to re-
frain from the exercise of any and all of these things.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act. (a) Post at its Rio Grande,
Puerto Rico plant copies of the attached notice marked ‘‘Ap-
pendix.’’10 Copies of the notice, on forms provided by the
Regional Director for Region 24, after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.