Margaret Anzalone, Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1979

242 N.L.R.B. 879 (N.L.R.B. 1979)

MARGARET ANZALONE, INC.
Margaret Anzalone, Inc. and Knitgoods Workers'
Union, Local 155. International Ladies' Garment
Workers' Union, AFL-CIO and New York Joint
Board of the Amalgamated Clothing and Textile
Workers Union, Local 162, AFL-CIO, Party to the
Contract. Cases 29 CA 6322 and 29 (CA 6655
June 7, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MEMBIERS JENKINS
ANt) PENEI.O
On February 27, 1979, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of' the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent,
Margaret Anzalone, Inc., Brooklyn, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 2(b):
"(b) Offer Ramonita Guzman and Orfilia Ruiz re-
instatement to the jobs of which they were unlawfully
deprived or, if such jobs no longer exist, to substan-
tially equivalent jobs, without prejudice to their se-
niority or other rights and privileges previously en-
joyed, and make them whole for any loss of pay they
may have suffered by reason of the discrimination
i Respondent has excepted to certain cred bilit) findings made by the Ad-
ministrative 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 3d Cir. 1951). We have carefull) examined the
record and find no basis for reversing her findings.
I We will modify the Administrative Law Judge's recommended Order to
include the full reinstatement language traditionally provided b the Board.
and we will also modify the proposed notice to conform with the provisions
of the recommended Order.
against them, in the manner set forth in that part of
this Decision entitled 'The Remedy.' "
2. Substitute the attached notice tfor that of the
Administrative Law Judge.
,APPEN I)IX
NoII(rF. TO FEN1PII( YEI:S
P()SI I) BY ORI) R ()OF 1tl
NAII()NAI, LAB1OR RII AII()NS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present their evidence, it has been decided that
we violated the law in certain ways. We have been
ordered to post this notice. We intend to carry out the
Order of the Board and abide by the following:
The National Labor Relations Act gives employ-
ees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the pur-
pose of mutual aid and protection
To refrain from any such activities.
WE VIL.. NOT permit representatives of the
New York Joint Board of the Amalgamated
Clothing and Textile Workers Union, Local 162,
AFL.-CIO, to meet with any of you on company
property in order to induce you to obtain other
employees' signatures on authorization cards.
WE 'WIl.l. NOI arrange tfor meetings between
you and Amalgamated representatives on com-
pany time and property, during which they are
permitted to tell you that you must join and pay
dues to the Amalgamated.
WE VII.I, Nor urge you to sign authorization
cards for the Amalgamated, and threaten you
with discharge if you do not sign.
WE WII.L NOT permit Amalgamated represen-
tatives to solicit employees, on company time
and property, to sign Amalgamated authoriza-
tion cards.
WE WILL NOT lay off or discharge any em-
ployee, or otherwise discriminate against any
employee with respect to hire or tenure of em-
ployment or any term or condition of employ-
ment, to discourage membership in Knitgoods
Workers' Union, Local 155, International La-
dies' Garment Workers' Union, AFL-CIO, or
any other union, or to encourage membership
(except as permitted by a lawful union-security
clause) in Amalgamated or any other union.
WE WILL NOT recognize Amalgamated, or en-
ter into any union-security or other contract with
242 NLRB No. 142
879
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it, unless and until it is certified pursuant to a
Board-conducted election. WE WILL NOT give ef-
fect to the union-security or any other portion of
our 1978 contract with it, but this does not mean
that we are rescinding any employee benefits.
WE Wl.I1. NOI in any way contribute support
to Amalgamated.
Wi WVt.l. NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of these rights.
WE WILL offer Ramonita Guzman and Orfilia
Ruiz reinstatement to their old jobs or, if such
jobs no longer exist, to substantially equivalent
jobs, without prejudice to their seniority or other
rights and privileges previously enjoyed, and WE
WILL make them whole, with interest, for loss of
pay resulting from their termination.
WE WI.L reimburse our employees, with inter-
est, for any dues and initiation fees paid to
Amalgamated, by checkoff or otherwise.
Our employees are free to exercise any or all of
these rights, including the right to join or assist Local
155 or any other union. Our employees are also free
to refrain from any or all such activities, including
joining or assisting the Amalgamated, except to the
extent that their lawful bargaining representative has
a collective-bargaining agreement which lawfully re-
quires employees to become union members.
MARGARET ANZALONE, INC.
DECISION
NANCY M. SHERMAN, Administrative Law Judge: These
consolidated cases were heard in Brooklyn, New York, on
November 6-8, 1978, pursuant to a charge filed in Case 29-
CA-6322 on April 10, 1978; a complaint issued in that case
on June 15, 1978, and amended on July II and October 27,
1978; a charge filed in Case 29-CA-6655 on September 8,
1978; and a complaint issued in that case on October 17,
1978. The complaints allege that the Respondent, Margaret
Anzalone, Inc., violated Section 8(a)(1), (2), and (3) of the
National Labor Relations Act, as amended (the Act) by
recognizing New York Joint Board of the Amalgamated
Clothing and Textile Workers, Local 162, AFL-CIO (the
Amalgamated or Local 162) and entering into a contract
with it which contained a union-shop clause; violated Sec-
tion 8(a)(l) and (2) of the Act by urging and soliciting em-
ployees to join and support the Amalgamated and threaten-
ing them with discharge unless they did so, permitting and
arrar.6ing for Amalgamated meetings on Respondent's
premises during working hours, and permitting Amalga-
mated representatives to solicit signatures on Amalgamated
cards on Respondent's premises during working hours; and
violated Section 8(a)(l), (2), and (3) of the Act by discharg-
ing Ramonita Guzman and laying off Orfilia Ruiz because
of their activities on behalf of Knitgoods Workers' Union,
Local 155, International Ladies' Garment Workers Union,
AFL-CIO (Local 155).
Upon the entire record, including my observation of the
witnesses, and after due consideration of the brief filed by
Respondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a New York corporation with its principal
office and place of business in Brooklyn, New York, where
it manufactures naval uniforms for the United States Navy
Resale Systems Office, a branch of the Department of De-
fense. Respondent's manufacturing operations began about
January 1978. As of a projection made on October 17, 1978,
Respondent annually ships $50,000 worth of products di-
rectly to States outside New York, and annually produces
$50,000 worth of products with a substantial impact on na-
tional defense. I find that, as Respondent concedes, Re-
spondent is engaged in commerce within the meaning of the
Act, and that exercise of jurisdiction over its operations will
effectuate the policies of the Act.
The Amalgamated and Local 155 are labor organizations
within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For many years before about early 1977, Margaret Anza-
lone owned a controlling interest in and operated a garment
factory called Sea Going Uniforms. Sea Going's employees
were represented by Local 162. Toward the latter part of
this period. Anzalone dealt with, as Local 162's representa-
tives, business representatives Samuel Schecter and Frank
Santollo.
B. The Allegedly Unlawful Recognition of and Contract
with the Amalgamated
About early 1977, Anzalone's interest in Sea Going was
bought by another concern. Thereafter, Anzalone arranged
for the incorporation of Respondent, with herself as pres-
ident. Schecter and Santollo heard rumors in the Sea Going
shop that Anzalone was going to open another shop. Schec-
ter and Santollo ascertained where Respondent's shop was
located, and visited it on about five occasions between No-
vember 14, 1977, and February 23, 1978.' During the visits
up to and including January 6, they ascertained that no
production was being carried on, but that the number of
sewing machines in the shop was increasing. The shop be-
gan production about mid-January. Thereafter, and at least
until the November hearing before me, Local 155 represen-
tatives frequently stationed themselves in front of the plant
before the employees' starting or after their quitting time,
distributed literature and authorization cards, and urged
the employees to sign Local 155 cards. Before March 15, at
least seven employees signed Local 155 cards.
On March 15, when Schecter and Santollo again visited
Respondent's shop, they found four employees working
there. These were the first employees that the Amalgamated
I All dates hereafter are 1978 unless otherwise indicated,
MARGARET ANZALONE. INC.
representatives had seen working there during any of their
visits. Schecter and Santollo recognized one of these four as
an Amalgamated member. Another of these employees.
Frances DeJesus, had signed a Local 155 card on March 9.
Schecter and Santollo did not speak to the employees.2
Schecter and Santollo had brought with them three copies
of a printed form contract which the Amalgamated had
executed with a number of employers. Schecter and San-
tollo asked Company President Anzalone to execute the
agreement. and she did so. Schecter and Santollo retrieved
the copies which she had executed, and brought them back
to the Amalgamated office, where they were countersigned
a day or so later by the appropriate officials. Then, a fully
executed copy was returned to Respondent.
The agreement is effective by its terms between April 1,
1978, and September 30, 1980, and consists of several docu-
ments with separate signature pages. The cover page of all
these documents bears the printed title "Market Agreement
between [a blank for the employer's name] and Amalga-
mated Clothing and Textile Workers Union and New York
Joint Board." Before Anzalone signed the documents,
someone in Schecter and Santollo's office had added to this
page the words, inter alia, "Custom Tailors Local 162." The
document entitled "Main Agreement" initially recites that
it is between Respondent and "the Amalgamated Clothing
and Textile Workers Union and the New York Joint Board
of the Amalgamated Clothing and Textile Workers Union
[hereinafter collectively referred to as the Union]." The
Main Agreement recognizes "the Union" as the employees'
representative, requires membership in "the Union" as a
condition of employment, and calls for a signature by "New
York Joint Board of the Amalgamated Clothing and Tex-
tile Workers Union," but no other labor organization. The
document entitled "License Agreement." which deals with
the use of union labels, recites that the parties are the Em-
ployer and "New York Joint Board of the Amalgamated
Clothing and Textile Workers Union (herein called the Li-
censor) and/or the Amalgamated Clothing and Textile
Workers Union, New York, New York (herein called the
Amalgamated)"; becomes ineffective with the expiration of
"The existing collective bargaining agreement between the
parties," and calls for signatures by the "New York Board
of the Amalgamated Clothing and Textile Workers Union"
and by the "Amalgamated Clothing and Textile Workers
Union." The document entitled "Memorandum Accompa-
nying Agreement" (which deals with wages, vacation pay,
and transfer of production to other factories) recites that
the Main Agreement is between Respondent and the "Neuw
York Joint Board of the Amalgamated Clothing and Tex-
tile Workers Union" and calls for signatures by them only.
A document entitled "Supplemental Agreement" recites
that the parties are the Employer and "the Amalgamated
Clothing and Textile Workers Union," but calls for a signa-
ture by the "New York Joint Board of the Amalgamated
Clothing and Textile Workers Union" and no other labor
2 This finding is based on DeJesus' testimony, which for demeanor reasons
I credit over Schecter's testimony that he and Santollo identified themselves
to the employees. In any event, Schecter testified that he and Santollo did
not offer the employees any authonzation cards or organizational materials.
See infra, fn. 10.
organization. A document entitled "Local Issues Letter"
states that it is to delineate "the Union's" understanding as
to (inter lila) the unit definition in the "National Agree-
ment." calls for arbitration of unresolved issues in "the ap-
propriate local collective bargaining agreement," and is
signed only by Respondent and the "Amalgamated Cloth-
ing and Textile Workers Union."
Schecter testified that he had worked for the New York
Joint Board for 12-1/2 years, that during this entire period
he had been a business representative of "the Amalgamated
Clothing and Textile Workers of the New York Joint
Board," and a business agent who "workis] in Local 162,"
and that in 1978 Santollo occupied the same position as he.
After the contract was signed, employees Carmen Mon-
talvo, Iris Trinidad, Delores Perez, and (inferentially) oth-
ers were asked to sign cards in which they accepted mem-
bership in Local 162 of the New York Joint Board of the
Amalgamated Clothing and Textile Workers Union (AFL-
CIO), designated the Joint Board as their bargaining repre-
sentative, and authorized checkoff of dues and initiation
fees to the Joint Board during the effective period of con-
tracts between the employee's employer and the Joint
Board. Employee DeJesus and (inferentially) others were
asked to sign a card with "Amalgamated Clothing Workers
of America, AFL-CIO" printed in relatively large letters,
and which stated, inter alia. "I hereby' . . . faithfully pledge
myself to conform with and abide by the Constitution, By-
Laws and all rules and regulations of the Amalgamated
Clothing Workers of America and of the local thereof of
which I am a member." The complaint alleges that Respon-
dent unlawfully recognized and contracted with Local 162.
Page 10 of Respondent's brief states that Respondent had a
bargaining agreement with "Local 162." For purposes of
this case. I regard as immaterial the distinctions between
Local 162, the New York Joint Board, and the Amalga-
mated Clothing and Textile Workers Union.
When visiting Respondent's shop on March 15. the
Amalgamated representatives did not discuss whether Re-
spondent was separate from Sea Going.' They had no au-
thorization cards in their possession from Respondent's em-
ployees. Nor did such representatives tell Respondent that
they represented a majority of Respondent's employees, or
offer to demonstrate a card majority. When turning over to
Amalgamated counsel, pursuant to district court subpena,
the cards signed by Respondent's employees, Amalgamated
representative Schecter supplied no cards dated prior to
March 31. 1978. On or before March 31, at least 10 employ-
ees had signed Local 155 cards. Respondent's payroll as of
Friday, April 7, names about 46 employees, about 13 of
whom signed Local 155 cards on or before April 7. Of these
46, about 31 (about 8 of whom signed Local 155 cards on or
before April 7) worked at least 40 hours that payroll week.
From time to time beginning on April 3 or 4, upon seeing
Local 155's director of organization Norman Lewis engag-
3 This finding s based on Schecter's testimony (see infra, fn. 10) At that
time, Respondent eniployed no employees who had come from Sea Going.
For this and demeanor reasons, I do not credit Anzalone's testimony that the
Amalgamated representatives stated that Respondent was a continuation of
Sea Going. Schecter testified in November 1978 that he still did not know
whether Anzalone was operating Respondent apart from Sea Going.
881
Il)E'ISIONS OF NATIONAl. ABOR RELATIONS BOARD
ing in organizing activity in front of' the shop, Anzalone
would tell him, "You leave my people alone. I have a con-
tract with Local 162 Amalgamated." She said that she had
her own union.
C. he 4magat,' atcdS'A Mcfting W"ith Rvponlet'
Enphee'.. ' Loc al 155' Bargaining Dcnmands,
Representlalion Petition, ntrd Charge
About April 4, Schecter and Santollo came to the shop,
selected a committee of about six employees, took them
into an empty office on Respondent's premises, and closed
the door. Among the employees present were Marion
Chapman (also called Melika), Mary McDaniel, Mary Mc-
Closkey, and Ruth Dunhart. The Amalgamated representa-
tives showed the employees Respondent's contract with the
Amalgamated, and said that the Amalgamated was going
to make everyone a member as soon as possible. This meet-
ing occurred during the employees' break time. No member
of management testified that he was unaware of it. Because
the production area consists of a single room, and because
the employees who attended were selected that day by the
Amalgamated, I infer that management knew that the
Amalgamated was conducting a meeting with the employ-
ees at this time and place. Schecter testified that when
holding this meeting, he did not know that ocal 155 was
trying to organize Respondent's shop.
In mid-afternoon on April 5, Norman Lewis, Local 155's
director of organization, came to the shop with Local 155
business agent Lydia Ramos. Lewis identified himself to
Production Manager Henry Riggio. whose supervisory sta-
tus is conceded and whose sole superior, so far as the record
shows, is President Anzalone. Lewis asked to speak to
Anzalone. Riggio said that she was not there, that he was
Respondent's treasurer.' and that whatever Lewis could say
to her he could say to Riggio. Lewis said that Local 155
represented a majority and would like to sit down some
time and discuss working conditions. He did not specify the
bargaining unit he was referring to. During this or another
conversation on April 4 or 5, Riggio told Lewis that he
could address the employees if he so desired.
About April 6, Schecter and Santollo came to the factory
again, and conducted a meeting on the factory floor. Schec-
ter testified that the Amalgamated called this meeting be-
cause "at that time we were aware that the ILG had come
in and we wanted to . . . make [the people] aware that we
felt that [we] were their union." This meeting, which took
about 15 minutes, was held during working hours. 6 The
I My findings in this paragraph up to this point are based on a composite
of credible portions of the testimony of Schecter, McCloskey, and Chapman.
For de-.anor reasons, I do not credit Chapman's testimony that this meet-
ing took place in a small room, off the factory floor, which the emplolees
used as a lunchroom and dressing room. Because Respondent's payroll
shows that about 31 people worked 40 hours or more during the week ending
Friday, April 7 1 do not accept McCloskey's testimony that the six employ-
ees who attended this meeting constituted virtually all the work force at that
time.
t He testimonially denied holding this or any other corporate office.
This finding is based on the testimony of employees Efrin Guerrero, Iris
Silva, Dolores Perez, and Iris Trinidad, all of whom credibly testified that the
meeting was held in the afternoon, and McCloskey. who mistakenly testified
electricity was briefly shut off to draw the employee's atten-
tion; shutting off the electricity was an operation usually
performed by Production Manager Riggio. Then, Company
President Anzalone and Foreman Victor Bartolomeo (also
referred to in the record as Enrico and Americo) told the
employees to shut down their machines to attend the meet-
ing.' All the employees left their work stations and gathered
in front of the Amalgamated representatives. The Amalga-
mated representatives asked for someone to translate their
remarks into Spanish, and an employee named Irma volun-
teered.8 Schecter told the employees that they were appar-
ently unaware that they already had a union, that the
Amalgamated had been "there" with Margaret Anzalone
for many years, that "they already had a contract signed
land] couldn't sign another one," that the employees had to
sign Amalgamated cards because of Respondent's contract
with the Amalgamated, and that it had good benefits and
was good for the employees in their job.? Santollo said that
the employees each had to pay $41 for their "book." Em-
ployee DeJesus, a Local 155 member for 9 years. asked,
"how can I have to pay another union if I have mine?"
Santollo then said that they would not have to pay $41, but
"when everything is fixed" would only have to pay dues of
$9 a month. The employees asked the Amalgamated repre-
sentatives various questions, whose exact nature is not
shown by the record, and the representatives responded.
DeJesus testified that Foreman Victor and Mario Barto-
lomeo attended this meeting;: Perez corroborated her as to
Mario. For demeanor reasons, I accept DeJesus and Perez'
testimony over the denials of Schecter and employees
Chapman and McCloskey."0 Perez, Trinidad, and DeJesus
testified that Production Manager Riggio was in the area
where the meeting was being held. For demeanor reasons, I
credit their testimony over McDaniel, Chapman, Riggio,
and Schecter's denials (see supra, fhn. 8).
that the meeting was held before lunch For demeanor reasons, I do not
accept the testimony of Chapman and Schecter that this meeting occurred
durng a coffee break.
'This finding is based on the testimony of employees Guerrero, Silva,
Perez, Trinidad, and DeJesus. For demeanor reasons, I do not believe Chap-
man's testimony that it was she who told the employees to attend, and that
Victor Bartolomeo did not tell them to go.
' This finding is based on Trinidad's testimony and on credible parts of
Chapman's testimony. For demeanor reasons, I do not believe Chapman's
testimony that it was she who asked Irma to serve as translator. Respon-
dent's April 7 payroll includes an operator named Irma Julbe.
My findings in this sentence are based on a composite of credible por-
tions of the testimony of employees Guerrero, Silva, Tnnidad, Perez, Mc-
Closkey, McDaniel, and DeJesus. The first four of these witnesses speak
Spanish as a native language and testified through an interpreter. Silva un-
derstands some English, and testified that she believed Irma's translation was
accurate. Trinidad testified that she "understood" Anzalone. but implied
that she relied at least partly on Irma's translation. Perez testified that she
understands English "a bit." Guerrara testified that his understanding about
what the Amalgamated representatives said was based on the explanation of
an unidentified fellow worker, inferentially bilingual. No objection on hear-
say grounds was tendered to the testimony of these Spanish-speaking wit-
nesses about what the Amalgamated representatives had said. Cf. Local 901,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America Editorial El Imparcial, Inc. v. Compon, 291 F.2d 793, 796-
797 (st Cir. 1961). Further, such witnesses' testimony was undenied and was
partly corroborated by the English-speaking witnesses. See also, infra, fn. I 1.
' The parties stipulated that if called, Santollo would testify essentially to
the same matters and things as Schecter. The Bartolomeos are no longer in
Respondent's employ, and did not testify.
88X2
MARGARET ANZALONE, INC.
Anzalone, Schecter, Riggio. and employees Chapman.
McCloskey, and McDaniel all testified that Anzalone did
not attend the meeting. Employees Guerrero, Silva, Perez.
Trinidad, and DeJesus all testified that Anzalone was there.
For demeanor reasons, I credit the testimony that she was
present. Anzalone told the employees, in English, that she
had invested a lot of money in the factory: that she had had
a contract with the Amalgamated for many years and it
knew all about her business: that she had signed a contract
with the Amalgamated; that it was a good union with good
benefits: that she did not understand why the employees
had signed for another union ("you have you own union");
and that the employees should sign for the Amalgamated."
On Monday, April 10, Local 155 representatives Sal
DeAngelis and Norman Lewis came to the shop and told
Anzalone that Local 155 represented a majority of the
workers and would like to sit down and discuss "terms of
conditions." Becoming very upset, Anzalone said, "Why
don't you leave me alone, I have another union here. I had
a union here before I moved here." She said that she was an
Amalgamated Clothing employer previously and she
wanted the same union to represent her people. On the fol-
lowing day, Respondent received a etter from Local 155,
dated and mailed on April 10, in which Local 155 asserted
that it represented a majority of Respondent's production
and maintenance employees and requested a conference for
the purpose of negotiating a collective-bargaining agree-
ment. Local 155 never received an answer to this letter.
Also on April 10, Local 155 filed a representation petition
with the Board, seeking certification as the representative of
Respondent's employees. That same day, Local 155 filed its
charge in Case 29-CA 6322, alleging, inter alia, that Re-
spondent had violated the Act by refusing to recognize Lo-
cal 155.12
Several weeks after the factory-floor meeting, the Amal-
gamated representatives came to the shop again, and con-
ducted another employee meeting. This meeting was held in
a room, off the factory floor, which the employees used as a
dressing room and lunchroom. A few weeks after that, the
Amalgamated representatives conducted still another em-
ployee meeting, this time in the hallway outside the shop.'3
These two meetings were not attended by Anzalone, Rig-
gio, or the Bartolomeos. There is no evidence that either
meeting was held during working hours. From the fact that
Schecter chased Anzalone away from the lunchroom meet-
ing, and from its physical location and the number of em-
ployees who attended, I infer that management knew where
and why this meeting was being held. Indeed, no member
of management disavowed such knowledge. Because the
hallway meeting was not held on Respondent's separate
premises and there is no evidence that it was held during
1l My findings in this sentence are based on credible portions of the testi-
mony of employees Silva, Perez. and Tnnidad. Silva testified that she under-
stood Anzalone. See also, supra, fn. 9.
12 By order dated October 27, the Regional Director approved Local 155's
request for permission to withdraw this portion of the charge, and amended
the complaint accordingly.
11 Respondent's factory operation is one of a number of different busi-
nesses in the same building. The businesses share a common hallway and a
common set of elevators.
working hours. I find it unnecessary to determine whether
management knew about it.
D. Solicitations To Sign Jor the 4 imalgaatlled
In late March 1978, (Chapman asked employee Silva to
sign a card for the Amalgamated. Silva refused. Two days
later. Anzalone came to Silva while she was working at her
machine, and asked why she had not signed an Amalga-
mated card. Silva, who on March 9 had signed a Local 155
card, said that for the time being she did not want to sign
an Amalgamated card. Anzalone asked Silva to sign be-
cause Anzalone's union had good benefits. Silva replied
that she did not need the benefits of Anzalone's union be-
cause Silva had benefits from her husband. Anzalone then
went away. Two weeks later, while Silva was working at her
machine. Anzalone again asked Silva to sign an Amalga-
mated card. Silva said that for the time being, she was not
going to sign. Anzalone said that if she would not sign the
card for Anzalone. Silva could not work there. Silva said
that if she could not continue working for Anzalone, Silva
would go home. Anzalone said, "for now, forget it." On an
undisclosed later date, Anzalone asked Silva why she did
not sign a card. Anzalone had good benefits for the employ-
ees. Silva said that she was not interested in signing a card
for Anzalone's union. Anzalone made a single downward
motion with her hand at Silva, and then left. As of the
November 1978 hearing, Silva was still working for Re-
spondent. Nor were her working conditions or rate of pay
changed in any way.'."
About the beginning of April. employee Chapman asked
employee Perez to sign a card for the Amalgamated. Perez
refused, stating that she had already signed a Local 155
card. Thereafter, on April 6, Perez told Anzalone not to
send anybody any more to give Perez cards. Anzalone said,
"All right. I give it to you and you sign it for me because if
you don't sign for me this card, you cannot remain working
here." Perez then filled out the card, signed it, and gave it to
Anzalone.' 5
About early April 1978, Anzalone came to employee
DeJesus' machine and asked her whether she had a union.
Anzalone said that if DeJesus was going to "stay here," she
was going to have to get into "our union." DeJesus said, "I
don't think I can do that because I had nine years with my
union," which was Local 155. DeJesus never signed an
Amalgamated card. She continued to work for Respondent
until she resigned. about 2 months later.'
On Friday, April 14, Foreman Victor Bartolomeo told
employees Montalvo, Ramon Huertas, and Jane Bartolo-
meo (Victor's daughter), while the employees were on their
break, that by Monday morning the employees who had
not signed Amalgamated cards would be discharged.
Everyone was silent. About the same date, Victor Bartolo-
M findings in this paragraph are based on Silva's testimony For de-
meanor reasons. I do not credit Anzalone's denials that such conversations
occurred.
'1 My findings in his paragraph are based on Perez' testimony, partly
corroborated by Chapman. For demeanor reasons, I do not credit Anza-
lone's denials
'1 These findings are based on DeJesus' testimony For demeanor reasons.
I do not credit Anzalone's denials
883
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meo gave Amalgamated cards to employee Trinidad and
others and said that those who would not sign "couldn't
work Monday." On Monday morning, Montalvo, Trinidad,
and other employees who had not signed Amalgamated
cards came into the factory. Nothing happened, and they
went to work as usual.
On May 30, Amalgamated representatives Schecter and
Santollo approached employee Montalvo while she was
working at her machine, and urged her to sign an Amalga-
mated card because of the "benefits." After they had talked
to her for an hour and a half about this matter, Montalvo
signed a card "so they should leave [her] alone." She was
paid for the time during which this solicitation occurred.
Montalvo had signed a Local 155 card on April 10. In view
of the time, length, and location of this conversation and
absent any testimony from management that it was un-
aware of this activity, I infer that management knew about
it.
About August 10, Anzalone gave Respondent's floor-
ladies Amalgamated cards to distribute to the employees."
Shortly thereafter, an unidentified floorlady, or forelady,
came to the table where several floorgirls were working, and
told floorgirl Orfilia Ruiz, who had been hired about Au-
gust 1, to sign because they were from "Margaret's union."
Ruiz refused on the ground that she had already signed a
Local 155 card.
Beginning about early April, employee Chapman solic-
ited a number of employees to sign Amalgamated cards
during working hours. She testified that she received her
blank cards from the Amalgamated representatives and re-
turned the signed cards to them. The General Counsel ap-
parently contends that Anzalone selected Chapman to act
as Amalgamated steward and, therefore, that her solicita-
tion activity is attributable to Respondent. On direct exami-
nation, Chapman testified that Anzalone had appointed her
as shop steward in late March or early April, and before the
Amalgamated's factory-floor meeting with the employees
on about April 6.'1 After Chapman was excused as a wit-
ness, Respondent's counsel conferred with her about the
circumstances of her appointment as shop steward and then
procured permission, over the General Counsel's objec-
tions, to recall her as a witness. At this point, she testified
that she had previously worked for Sea Going and had met
Schecter and Santollo when they were visiting that shop;
that on a date she did not specify, they had mentioned the
possibility of her being a stewardess; that on a subsequent
date, which she did not specify, a fellow employee whom
she did not name recommended Chapman to Schecter as a
stewardess; that on a subsequent date, which she did not
specify, Schecter and Santollo asked her to be stewardess;
that she conditioned acceptance on Anzalone's approval,
although the Amalgamated representatives said Anzalone
had nothing to do with it; and that at an undisclosed subse-
quent time, Schecter said either impliedly (her initial ver-
7 This finding is based on Ruiz' testimony. For demeanor reasons, I do
not credit Anzalone's denials. The General Counsel introduced this evidence
regarding Anzalone solely to show some actual enforcement of the union-
shop contract with the Amalgamated and in connection with Ruiz' discharge
(see infra).
it Chapman started working for Respondent about March 22. She testified
that it was a matter of "weeks" before she became shop steward.
sion) or expressly (her later version) that he had asked
Anzalone and she said it was all right. Employee McClos-
kev testified, in substance, that she had recommended
Chapman to Schecter as a stewardess a week or so before
about April 10. Schecter testified that his first two visits to
the shop after Chapman was hired were about April 4 and
6. Schecter further testified that he had referred Chapman
to Respondent when she was looking for work: that it was
he who appointed Chapman shop steward: and that he nev-
er had, or told Chapman that he had had, any conversa-
tions with Anzalone about this appointment. He gave no
testimony about any recommendation by McCloskey.
Schecter also testified that he appointed Chapman as tem-
porary shop chairperson because "we were operating as
business agents for the shop. serving the shop." Chapman
testified that the only things she did as shop steward were to
solicit signatures on Amalgamated cards and try to reassure
employees who complained to her about difficulties in get-
ting along with other employees: if it was "too much," the
complainant (not Chapman) would bring the matter up
with management." Although Chapman's testimony in this
connection reflects on her credibility generally, I conclude
that the record fails preponderantly to show that Anzalone
selected Chapman to act as shop steward.
E. The Allegedly U'nlavtiid Separations
I. Ramonita Guzman
Ramonita Guzman began to work as a machine operator
in the clothing industry in about 1956. She worked mostly
in ILG shops. In early 1976, ILG Local 155 hired her as a
full-time paid organizer, a status which she occupied at all
times relevant here. Anzalone testified that she did not
know until after Guzman's April 1978 discharge that she
was a union organizer.
In November 1977, Guzman applied to Anzalone for a
job as a Singer machine operator. Anzalone said that she
would call Guzman in January, and said nothing about a
union. On January 15, 1978, Anzalone telephoned Guzman
at her home and asked her to report for work. Guzman did
so, and was assigned to making hats on a double-needle
machine. Guzman worked from January 18 to 31, and was
then laid off for lack of material.20 Anzalone told Guzman
that she would be called back as soon as Respondent re-
ceived material. While Guzman was working there in Janu-
ary. Anzalone made no comments about her work.
Throughout Guzman's January tour of duty, a total of four
people were working in the shop. All were laid off on Janu-
ary 31. During this period, Anzalone did not discuss a
union with Guzman, or mention the Amalgamated.
On alternate days after her January layoff, Guzman
parked her car in front of the shop during the hours when
Respondent's employees were coming to or leaving work.
She gave them pamphlets and organization cards, and
talked about Local 155. She also conducted meetings in late
January (attended by three employees) and on March 21
(attended by 10 to 12 employees), after working hours, at a
1' Similarly, Production Manager Riggio testified that no grievances had
ever been filed under the contract.
20 No contention is made that this layoff was unlawful.
884
MARGARET ANZAL.ONE, INC.
nearby restaurant. She obtained authorization cards from
at least six employees before March 15 and from at least
two more before April I.
Anzalone did not get in touch with Guzman about re-
turning to work. Guzman did not ask Anzalone for a job
until April 4, when Guzman was rehired. Guzman testified
that her purpose in applying to Respondent for a job in
April was to organize the employees and not to become a
permanent employee: that she was going to leave after
"maybe a week or two weeks, see what happens": and that
it was going to be until Local 155 successfully organized the
shop. When asked, "What was your intention with respect
to how long it would take you to organize the shop?." she
replied, "Maybe two weeks, maybe three months, I don't
know."
Guzman started to work in the shop at 8 a.m. on April 4.
At about 2 o'clock that afternoon, Guzman saw Schecter
and Santollo talking to Anzalone. Guzman testified that
Anzalone "talked about the union," but that the conversa-
tion was too far away for Guzman to hear much of it. Then,
Schecter and Santollo approached employee Chapman,
who was working next to Guzman. Schecter said, "I don't
have to talk to you about a union because you know." Guz-
man asked the Amalgamated representatives if she could
ask a question. Schecter said yes. Guzman said, "That's a
union shop?" Schecter said no. Guzman said, "That's the
first time I see the union organize the boss. You are sup-
posed to organize the people outside." Schecter said,
"Somebody call a union and the Teamsters is around."
Guzman said that the Teamsters had the same right as
"you" do to organize the shop. Schecter said that Guzman
was "too smart." Schecter further said that he would not
"force" Guzman to sign a union card.
Later that day, Schecter had a conversation with Chap-
man as to which contents there is no direct record evi-
dence.2 Then, Chapman said to Guzman that Chapman
wanted to talk to her. Guzman said that she wanted to talk
to Chapman, and asked her to accompany Guzman to a
nearby restaurant where she was going to conduct a Local
155 meeting after work. Chapman asked Guzman whether
she worked for Local 155, and Guzman said yes. During
the meeting. Chapman asked so many questions that Guz-
man had difficulty conveying her message to the 10 or 12
other employees present. During this meeting, Guzman in-
duced about four employees to sign Local 155 cards, and
distributed cards to several others.22
It is undisputed that Anzalone discharged Guzman the
following morning before the beginning of the workday.
Guzman testified that on April 4, Anzalone checked Guz-
man's work and did not complain about it, but instead was
"happy" with it, and that Guzman punched out her normal
card that day. Guzman further testified that the following
morniig in the elevator, she encountered Anzalone, who
said that she did not want Guzman any more because she
"give hard time to the union." Guzman asked for a further
21 Guzman could not overhear the conversation. Chapman, whom Re-
spondent called as a witness, and Schecter, whom the General Counsel and
Respondent called as a witness, were not asked about it.
22 My findings in this paragraph are based on Guzman's testimony . For
demeanor reasons, I do not accept Chapman's version of how she happened
to accompany Guzman to the meeting and what Chapman said there.
explanation. Anzalone said, "Somebody called me and said
you tried to bring another union, Local 155, in the shop":
and Guzman said, "I give you no hard time, but, from now
on. I will give you a hard time." Guzman testified that this
conversation occurred in the presence of the elevator opera-
tor and several employees, but that the only employee
whose name she could recall was DeJesus. DeJesus. who
had resigned from Respondent's employ before the hearing,
signed a Local 155 card at Guzman's solicitation and testi-
fied on the General Counsel's behalf. but was not asked
about this alleged coversation.
Anzalone testified that in the morning of April 5 she told
Guzman, "Oh look, I'm sorry, I meant to tell you last night
that I can't use you." Guzman said, "That's all right ... the
union will take care of you": and Anzalone said, "What
union?" Production Manager Riggio testified that he over-
heard Anzalone say to Guzman, "I can't use you. What are
you going to do?" and Guzman said, "I'm going down, I
will take care, I will get the union after you," and "stuff like
that." Anzalone testified that Guzman had been assigned to
put bar tacks at either end of pockets by using a bar tacking
machine. All day long, April 4, she kept on putting the
tacks "in the wrong place," and Anzalone repeatedly
pointed this out to her and repeatedly told her, "I don't
think I can use you." Anzalone further testified that she
decided to tell Guzman at the end of the day not to return
the next day, but did not see her when she went home that
night. "In fact, she didn't even punch a card." Employee
Chapman, who worked next to Guzman and was called by
Respondent as a witness, testified as follows:
JUDGE SHERMAN: In what respect was Ms. Anzalone
criticizing Ms. Guzman's work?
THE WITNESS: She didn't do the work properly. She
didn't sew, you know, she didn't sew.
JUDGE SHERMAN: Exactly what was she doing?
THE WITNESS: It is a bar tack, a little tack that you
do on the work. In various parts of the pants, if you are
working on pants or the blouses and she wasn't doing
it correctly and she was a little annoyed because-
JUDGE SHERMAN: In what way was she doing it in-
correctly?
THE WITNESS: She wasn't sewing it in the proper
spot. Say like if you have a garment, you know, it was
not done properly.
JUDGE SHERMAN: Misplaced?
THE WITNESS: No, it was, say for instance this line,
right, you are supposed to do the work. It is a piece of
material that you bend it back and she wasn't doing
that properly. In other words, it looked like a lump in
the garment. You understand what I mean?
JUDGE SHERMAN: She was placing the bar tack in
the garment in such a way that it made a lump instead
of lying flat?
THE WITNESS: Yes, it is supposed to lay flat.
As to this conflict in the testimony, I credit Guzman and
discredit Anzalone, Riggio, and Chapman. I rely on the
witnesses' demeanor; on the fact that Anzalone and Chap-
man gave somewhat inconsistent descriptions of the alleged
defects in Guzman's work; on the unlikelihood that Anza-
lone would follow an incompetence-motivated discharge
885
[DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement with the inquiry "What are you going to do?"
which Riggio attributed to her: and on Respondent's failure
to produce Guzman's April 4 timecard, which according to
Guzman contained a clock-out entry and according to
Anzalone did not." Moreover, it is somewhat unlikely that
Guzman's work was defective in the ways described by
Anzalone and Chapman. Guzman had had 20 years' expe-
rience in the garment trade, during which she had operated
bar tacking machines among others. Moreover, her tech-
nique of furthering her organizational opportunities by get-
ting jobs in the shops she was attempting to organize re-
quired her to be a competent and versatile machine
operator.
On the following morning, Anzalone saw Guzman stand-
ing in front of the shop and said, "Leave me alone ... don't
bother me. I signed the contract with Amalgamated on
April Ist." Anzalone appeared to be very angry.
Between the date of her discharge and the November
1978 hearing, Guzman went to the shop every day just be-
fore and just after the end of the workday. Normally, she
would park her car, a 1977 Nova, in front of the shop. She
would get out of the car, greet the employees, and distribute
authorization cards. In Guzman's presence, on a date after
her discharge, but not otherwise shown by the record, Lewis
gave a card to employee Trinidad one morning in front of
the factory. Trinidad put the card into her handbag and
went to her machine. Anzalone then asked Trinidad if she
had seen Guzman downstairs. Trinidad said that she had.
Anzalone asked if she had been given a card. Trinidad said
yes, whereupon Anzalone asked her to give Anzalone the
card. Trinidad did so.24
2. Orfilia Ruiz
Orfilia Ruiz was hired by Respondent about August 1.
On August 2, she met Guzman at her car in front of the
factory. Guzman asked her to join Local 155, and gave her
a card to sign. Ruiz took the card home that night, but in
filling it out she omitted the date. On the following morn-
ing, August 3, Ruiz brought this card to Guzman, who
again was sitting in her car in front of the factory. At Guz-
man's invitation, Ruiz entered the car, examined some
union literature, and filled out a second card. While she was
sitting with Guzman in the car, Anzalone saw them there."
As previously noted, about August 10, Margaret Anza-
lone gave some Amalgamated cards to the floorladies, or
foreladies, to distribute to the different tables where the
floorgirls worked. One of the floorladies, or foreladies, ap-
proached Ruiz with some Amalgamated cards and said to
23 It is undisputed that Guzman worked on Tuesday, April 4. For unex-
plained reasons, Respondent's payroll records for the week ending Friday,
April 7, which the General Counsel offered into evidence, do not contain the
name o Ramonita Guzman.
24 My findings regarding the Trinidad-Anzalone conversation are based on
Trinidad's testimony. For demeanor reasons, I do not believe Anzalone's
denials. The complaint does not allege that Anzalone's conduct in this re-
spect violated the Act.
25 This finding is based on Guzman and Ruiz' testimony. Anzalone testi-
fied that she herself never saw Ruiz sitting in a car with Guzman. Anzalone
went on to testify that on a date which she did not specify, an employee
named Lena reported to her that on an undisclosed date Guzman had
grabbed hold of Ruiz and put her in Guzman's car. For demeanor reasons, I
do not credit Anzalone's testimony in this respect.
sign one "because they were from Margaret's union." Ruiz
said that she would not sign because she "already had
signed the card for Ramonita [GuzmanJ."
Ruiz punched out as usual on August 15. At that time,
work was still left on her table. The following morning, she
again met Guzman, who again had parked in front of the
factory. Ruiz again joined Guzman in the car. As the two
were conversing there, Anzalone parked her car behind
Guzman's car, looked at Ruiz, gave Ruiz what she testi-
monially described as a "sarcastic smile," walked by with-
out saying anything, and entered the building.
A few minutes later, Ruiz came upstairs, punched in, and
went to her work area. Anzalone was not normally present
there, but that day she was there waiting for Ruiz. Anza-
lone told Ruiz that there was no work for her. Ruiz asked if
she could come to work Monday, and Anzalone said there
was no work for her. Anzalone requested and received
Ruiz' telephone number, and told her that Anzalone would
call her as soon as there was work for her. Anzalone testi-
fied to receiving a report from an employee named Lena
that when Ruiz returned to pick up her check on a "Thurs-
day" (Ruiz was terminated on Wednesday, August 16),
Lena said there was work for Ruiz and suggested that she
ask Anzalone for work, to which Ruiz replied that she did
not want to work. Anzalone's testimony in this respect was
not received to show that this conversation with Ruiz in
fact took place. There is no evidence that Anzalone ever
tried to get in touch with Ruiz about a job. At the time of
the November hearing, Anzalone still had in her possession
the paper on which Ruiz had put her name and telephone
number at Anzalone's request.
Ruiz was classified as a floorgirl. During the week she
was laid off, Respondent had 10 floorgirls, including Ruiz.
Five were paid more than Ruiz. and the rest were paid the
same. Respondent's floorgirls work at three different ta-
bles-a packing table, a cleaning table, and a cutting table.
Anzalone testified that she laid Ruiz off for lack of work,
and implied that she was selected for layoff because she was
the junior of the three floorgirls who worked at the cutting
table. Anzalone and Production Manager Riggio both testi-
fied that after Ruiz' separation, only these two floorgirls
had been working at the cutting table. Riggio testified that
the work performed at Ruiz' cutting table required more
skill than the work performed by the floorgirls at the other
tables. Ruiz credibly testified without contradiction that
when the floorgirls finished the work at her table, they did
the same thing the floorgirls did at the cleaning table. At
the time Ruiz was laid off, Respondent retained two floor-
girls who were junior to her. During the week ending Fri-
day, August 25, Respondent hired two new floorgirls at the
same rate which Ruiz had received before her August 16
layoff. 26 During that same week, two floorgirls were termi-
nated for reasons not shown by the record. During the next
2 weeks, no floorgirls were hired, and one was terminated
for reasons not shown by the record.
26 Riggio testified that some floorgirls cut shade tickets, and that this is
more skilled work than that performed at Ruiz' cutting table. However, the
fluoorgirls hired the week after Ruiz termination did not cut shade tickets.
886
MARGARET ANZAI.ONE. INC.
F. Analvsi.s and C('oncluions
I. Respondent's recognition of and contract with the
Amalgamated
The uncontradicted evidence shows that the Amalga-
mated did not represent a majority of Respondent's em-
ployees on March 15. 1978. when Respondent executed a
collective-bargaining agreement with it which contained a
union-security clause. Accordingly, I conclude that Re-
spondent violated Section 8 (a)(2) and (I) of the Act by ex-
ecuting that agreement, and Section 8(a)(2), 13) and (1) b
executing the union-security clause therein. International
Ladies' Garment Workers' Union. .4 FL ('10 Bernhard-A It-
mann Texas (orp.] v. N.L.R.R., 366 U.S. 731 (1961): Can-
teen Corporation, 202 NLRB 767. 769 770 (1973). Because
the Amalgamated did not enjoy majority status on the date
Respondent executed the contract. I would regard as imma-
terial any showing that employees supported the Amalga-
mated on the effective date of the contract 2 weeks later.
Newspaper Agenci' Corporation, 201 NLRB 480, 493 (1973).
affd. 505 F.2d 335 (D.C. Cir.); see also Bernhard-Altmann,
supra, 366 U.S. at 736. In any event, the record shows that
the Amalgamated did not enjoy majority status by April 1.
In view of my conclusions in the foregoing respects, I need
not and do not determine whether Respondent's conduct in
contracting with the Amalgamated violated the Act under
the class of cases generated by Midwest Piping & Suppi
Co., Inc., 63 NLRB 1060 (1945).
Respondent contends that no remedial order should issue
as to the contract because of Production Manager Riggio's
testimony, on November 8, 1978. that the contract had nev-
er been enforced, no grievances had been filed pursuant
thereto, and Respondent had made no contributions to the
Amalgamated's health and welfare benefits program. How-
ever, this contract may be asserted as a bar to Local 155's
representation petition or a petition by some other union.
Indeed, Anzalone urged Local 155 representatives to "leave
my people alone" because of her contract with the Amalga-
mated, and in her presence Amalgamated representative
Schecter told the employees that Respondent's contract
with the Amalgamated prevented Respondent from signing
another one. These considerations alone are sufficient to
call for an order requiring Respondent to withdraw and
withhold recognition from the Amalgamated and to refrain
from giving any effect to the contract. Hot Bagels and
Donuts of Staten Island, Inc., 227 NLRB 1597 (1977): The
Drackett Company, 207 NLRB 447. 452 (1973), enfd. 506
F.2d 1402 (7th Cir. 1974). Moreover, in early April 1978,
the Amalgamated representatives relied on the contract,
which contained a union-security clause, in urging a se-
lected committee of employees to sign up the employees.
Respondent laid off employee Ruiz, in August 1978. for
refusing to sign an Amalgamated card: and on various oc-
casions between early April and mid-April, Respondent
told employees that they would be discharged if they did
not sign Amalgamated cards. Nor does any pre-November
1978 failure by Respondent to comply with the contract
require like subsequent conduct until its expiration in Sep-
tember 1980. Furthermore, at the November 1978 hearing.
Amalgamated representative Schecter testified that he and
Santollo assumed that the Amalgamated and Respondent
had a valid agreement whose existence imposed on the
Amalgamated the duty to see to it that the agreement was
lived up to and to act as the employees' representative in
handling their problems with Respondent. Accordingly. I
conclude that the customary remedial order should issue in
connection with the unlawful contract.
2. Allegedly unlawful solicitations for the Amalgamated
a. Whether the Bartolornmeos were supersi.ors within the
meaning of the Act
The General Counsel alleges. and Respondent denies.
that Respondent is answerable for the conduct of Victor
and Mario Bartolomeo, who are brothers. During the pe-
riod material here, Production Manager Riggio. who is ad-
mittedly a supervisor within the meaning of the Act, headed
Respondent's production operations. Both of the Bartolo-
meos had the same jobs with Respondent, and were listed
as foremen on Respondent's payroll records. They worked
immediately under Riggio. Riggio was paid a weekly salary
of $350: Victor Bartolomeo's salary was the same; and Ma-
rio Bartolomeo's weekly salary was $375. Respondent's
payroll included three salaried production personnel whose
employee status is undisputed, the highest paid of whom
received $250 a week. All the other production personnel
on the payroll, whose employee status is undisputed, were
hourly paid. The highest paid of these received $3.50 an
hour-that is, $140 for a 40-hour week. Unlike all the op-
erators, Riggio and the Bartolomeos did not punch a time-
clock. Like the operators, the Bartolomeos worked 40 hours
a week. Riggio worked many more hours than that.
Like President Anzalone and Production Manager Rig-
gio, the Bartolomeos brought the work to the operators.
Like Anzalone. the Bartolomeos told employees what work
to perform. The Bartolomeos made sure that the operators
had their work, that it was properly performed, and filled in
for absent operators. The Bartolomeos had no authority to
authorize overtime or to give employees time off.
Riggio testified that the Bartolomeo brothers had no au-
thority with respect to hiring and firing. However. Anza-
lone credibly testified that on occasion, they would put ap-
plicants for employment to work without first consulting
her: that she would then watch them work and decide
whether they were "all right": that she usually decided that
they were satisfactory: and that they started getting paid
from the moment they started work, whether or not she
eventually decided to keep them. Employee Montalvo cred-
ibly testified that Victor Bartolomeo hired her in April
1978, and that she worked for Respondent until she was
laid off in August 1978. 1 conclude that the Bartolomeo
brothers had the authority to hire and responsibly direct
employees on Respondent's behalf, that their exercise of
such authority required the use of independent judgment.
that they were supervisors within the meaning of Section
2( 1) of the Act, and that their conduct is attributable to
Respondent.
b. Solicitations, threats, and meetings
On the basis of the credited evidence, I find that Respon-
dent violated Section 8(a)(1) and (2) of the Act by engaging
887
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the following conduct: (I) permitting the Amalgamated
to meet with employees on company premises about April 4
in order to induce them to obtain employees' signatures on
authorization cards: (2) arranging for a meeting between
the Amalgamated representatives and the employees on
company premises during working hours about April 6,
during which the Amalgamated representatives told the
employees that they had to join the Amalgamated and pay
dues to it: (3) at this meeting, urging employees, through
Anzalone, to sign for the Amalgamated; (4) in April 1978,
through Anzalone, urging employees Silva. Perez. and
DeJesus to sign Amalgamated cards, and threatening them
with discharge if they did not sign: (5) about April 14,
threatening employees (through Victor Bartolomeo) with
discharge if they did not sign Amalgamated cards; and (6)
on May 30, permitting the Amalgamated representatives to
solicit employee Montalvo, on company premises and dur-
ing working hours, to sign an Amalgamated card. See How-
ard Creations, Inc., 212 NLRB 179, 182-183 (1974); Moun-
tain State Construction Company, Inc., 207 NLRB 139
(1973), enfd. 510 F.2d 966 (4th Cir. 1975); The Hartz Moun-
tain Corporation, 228 NLRB 492, 526 (1977), enfd. sub nom.
District 65, Distributive Workers of America, 99 LRRM
2640 (D.C. Cir. 1978); Isaac Putterman d/b/a Rockville
Nursing Center, 193 NLRB 959 (1971). These unfair labor
practices are not excused by Riggio's statement to Local
155 representative Lewis that at unspecified times and
places he could "address" the employees if he so desired,
because Respondent's unlawful conduct extended far be-
yond giving the Amalgamated permission to address the
employees on company property.
Employees Silva and DeJesus credibly testified that
about Friday, April 14, the employee named Irma, a ma-
chine operator who during the Amalgamated's April 4
meeting with the employees had volunteered to act as inter-
preter at the Amalgamated's request for a translator, told
Silva, DeJesus, and others that if they did not sign some
Amalgamated material they could not work on Monday.
None of them signed, and all of them worked on Monday
as usual. Employee Trinidad credibly testified that about
the same date, an employee, whom she identified only as a
"dark girl" who had previously distributed a number of
Amalgamated cards, told all the employees that people who
did not sign a "card and a white paper" could not work
Monday; and that Trinidad did not sign but was able to go
to work on Monday. Ruiz testified that the individual who
about August 10 unsuccessfully attempted to induce her to
sign an Amalgamated card performed sewing work. I per-
ceive no evidence that the conduct described in this para-
graph was attributable to Respondent, and shall discuss the
complaint as to such incidents.
3. The allegedly unlawful separations
a. Guzman
The afternoon of April 4, Guzman's first and only day of
work following her rehire, Guzman reproached the Amal-
gamated representatives for organizing "the boss" instead
of "the people outside," and pointed out that other unions
had the same right as the Amalgamated to organize the
shop. Amalgamated representative Schecter thereupon re-
marked that Guzman was "too smart." That evening. Guz-
man conducted a Local 155 meeting attended by, among
other employees, Amalgamated steward Chapman. On the
following morning. Anzalone told Guzman that Anzalone
did not want Guzman anymore because she "give hard time
to the union ... Somebody called me and said you tried to
bring another union, Local 155, in the shop." The next day,
Anzalone angrily told Guzman to let Anzalone alone, that
she had already signed a contract with the Amalgamated.
The foregoing evidence establishes that Respondent dis-
charged Guzman because of her activities on behalf of Lo-
cal 155.
Respondent contends, however, that Guzman's status at
all material times as a full-time, paid organizer for Local
155 deprives her of employee status or, at least, renders
inappropriate a reinstatement and backpay order as to her.
I reject this contention on the basis of Oak Apparel, Inc.,
218 NLRB 701 (1975); Henlopen Manufacturing Co., Inc..
235 NLRB 183 (1978); and Anthony Forest Products Co.,
231 NLRB 976 (1977). Respondent relies upon N.L.R.B. v.
Elias Brothers Big Boy, Inc., 327 F.2d 421 (6th Cir.). The
statements relied on by Respondent were at least arguably
dictum, because the court found that the paid union orga-
nizer was not discharged for Section 7 activity. but instead
was replaced because she had given notice that she was
leaving. In any event, as the Board stated in Iowa Beef
Packers, Inc., 144 NLRB 615, 616, enfd. as modified 331
F.2d 176 (8th Cir. 1964):
. . it is not for [an administrative law judge] to specu-
late as to what course the Board should follow where a
circuit court has expressed disagreement with its views.
On the contrary, it remains the [administrative law
judge's] duty to apply established Board precedent
which the Board or the Supreme Court has not re-
versed. Only by such recognition of the legal authority
of Board precedent, will a uniform and orderly admin-
istration of a national act, such as the National Labor
Relations Act, be achieved.
I conclude that Guzman's discharge violated Section
8(a)(2), (3), and (1) of the Act, and that the customary affir-
mative relief should be afforded her.
b. Ruiz
On August 3, 1978, 2 days after Respondent had hired
employee Ruiz, Company President Anzalone saw her sit-
ting in the car of Guzman, whom Anzalone had discharged
4 months previously because of Guzman's activity on be-
half of Local 155. While in Guzman's car, Ruiz filled out a
Local 155 card and examined some Local 155 literature.
About a week later, Ruiz gave her execution of a Local 155
card as the reason for refusing to sign an Amalgamated
card which Anzalone had given to the floorladies for distri-
bution among the floorgirls. A few days later, on August 16.
Anzalone again saw Ruiz in Guzman's car before the begin-
ning of the workday. A few minutes later, Anzalone told
Ruiz that she was being laid off because there was no work
for her. Ruiz was the junior of the three floorgirls who
worked at the cutting table; and after her layoff, only the
two remaining floorgirls worked at that table. However,
during the following week, Respondent hired two new
888
MARGARET ANZALONE, INC.
floorgirls at the same rate which Ruiz had been receiving.
Moreover, the work performed at Ruiz' cutting table re-
quired more skill than the work performed by the floorgirls
at the other two tables; when work ran out at the cutting
table, Ruiz had previously performed the same work as
floorgirls not assigned to that table; and at the time Ruiz
was laid off, Respondent retained two floorgirls who were
junior to her. Nor is there any evidence that Respondent
ever offered Ruiz a job, although at the time of the hearing
Anzalone admittedly had Ruiz' telephone number.
Particularly in view of Respondent's prior threats to dis-
charge employees who did not sign Amalgamated cards
and Respondent's other unlawful efforts to procure em-
ployee representation by the Amalgamated rather than Lo-
cal 155, the foregoing evidence persuades me, and I find,
that Respondent laid off Ruiz because of her refusal to sign
an Amalgamated card and her activities on behalf of Local
155. Accordingly, her layoff violated Section 8(a)(2), (3),
and () of the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Local 155 and the Amalgamated are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) and (2) of the
Act by recognizing and executing a contract with the Amal-
gamated when at no material time did the Amalgamated
represent a majority of the employees in the contract unit.
4. Respondent has violated Section 8(a)(1), (2), and (3) of
the Act by including a union-shop clause in that contract.
5. Respondent has violated Section 8(a)(1) and (2) of the
Act by permitting Amalgamated representatives to meet
with employees on company premises in order to induce
them to obtain employees' signatures on authorization
cards; arranging for a meeting between the Amalgamated
representatives on company premises and time, during
which the Amalgamated told the employees that they had
to join and pay dues to the Amalgamated; at that meeting,
urging employees to sign for the Amalgamated; urging em-
ployees to sign Amalgamated cards, and threatening them
with discharge if they did not sign; and permitting the
Amalgamated representatives to solicit an employee, on
company time and property, to sign an Amalgamated card.
6. Respondent has violated Section 8(a)(2), (3), and (1) of
the Act by discharging Ramonita Guzman and laying off
Orfilia Ruiz.
7. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Ha ing found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be required to
cease and desist therefrom. Because the unfair labor prac-
tices found include the unlawful discharge of two employ-
ees, threats to effect other unlawful discharges, and the un-
lawful execution of a contract requiring Amalgamated
membership as a condition of continued employment, a
broad order is called for. Brom Machine and Foundry Co.,
222 NLRB 74 (1976); N.L.R.B. v. Southern Transport Inc.,
343 F.2d 558. 561 (8th Cir. 1965); N.L.R.B. v. East Texas
Pulp & Paper Company, 346 F.2d 686, 689-690 (5th Cir.
1965). Accordingly, I shall recommend that Respondent be
required to cease and desist from infringing on employee
rights in any other manner.
Affirmatively, I shall recommend that Respondent be re-
quired to offer Guzman and Ruiz immediate reinstatement
to the job of which they were unlawfully deprived, or if
such jobs no longer exist, substantially equivalent jobs,
without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay they
may have suffered by reason of the discrimination against
them, from the date of their termination to the date of a
valid offer of reinstatement, less net interim earnings, to be
computed in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest as called for
in Florida Steel Corporation, 231 NLRB 651 (1977).27 In
addition. Respondent will be required to withdraw and
withhold recognition from the Amalgamated unless and un-
til it is certified by the Board, and to cease giving effect to
Respondent's contract with the Amalgamated, but Respon-
dent will not be required to rescind any benefits enjoyed by
its employees. Also, in view of the contractual union-secu-
rity and checkoff clauses and as a precautionary matter,
Respondent will be required to reimburse its employees for
any dues or initiation fees paid by them, through checkoff
or otherwise, to the Amalgamated, with interest as called
for by Florida Steel, supra. I shall also recommend that
Respondent be required to post appropriate notices. Be-
cause many of Respondent's employees speak Spanish as a
native language and know little or no English, Respondent
will be required to post notices in both languages.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended Order:
ORDER28
The Respondent. Margaret Anzalone, Inc., Brooklyn,
New York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Permitting representatives of the New York Joint
Board of the Amalgamated Clothing and Textile Workers
Union, Local 162, AFL-CIO (the Amalgamated) to meet
with employees on company premises in order to induce
them to obtain employees' signatures on authorization
cards.
(b) Arranging for meetings between the Amalgamated
representatives and employees on company premises and
time, during which such representatives are permitted to
tell employees that they must join and pay dues to the
Amalgamated.
(c) Urging employees to sign cards for the Amalga-
mated, and threatening them with discharge if they do not
sign.
27See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
21 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulatiois of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
889
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Permitting the Amalgamated representatives to so-
licit employees, on company premises and time, to sign the
Amalgamated authorization cards.
(e) Laying off or discharging any employee, or otherwise
discriminating against any employee with regard to hire or
tenure of employment or any term or condition of employ-
ment; to discourage membership in Knitgoods Workers'
Union, Local 155, International Ladies' Garment Workers'
Union, AFL -CIO, or any other labor organization; or to
encourage membership (except as permitted by a lawful
union-security clause) in the Amalgamated or any other
labor organization.
(f) Recognizing the Amalgamated as the collective-har-
gaining representative of Respondent's employees, or enter-
ing into any union-security or other collective-bargaining
agreement with it, unless and until such time as the Amal-
gamated is duly certified pursuant to a Board-conducted
election, and giving effect to the union-security or any other
portion of the 1978 collective-bargaining agreement with
the Amalgamated; provided, however, that this is not to be
construed as requiring the rescission of any employee bene-
fits.
(g) In any other manner contributing support to the
Amalgamated.
(h) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed un-
der Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Withdraw and withhold recognition from the Amal-
gamated unless and until it is duly certified pursuant to a
Board-conducted election, and refrain from giving effect to
the 1978 bargaining agreement entered into with the Amal-
gamated, provided, however, that this is not to be construed
as requiring the rescission of any employee benefits.
(b) Offer Ramonita Guzman and Orfilia Ruiz reinstate-
ment to the jobs of which they were unlawfully deprived, or
if such jobs no longer exist, substantially equivalent jobs,
and make them whole for any loss of pay they may have
suffered by reason of the discrimination against them, in the
manner set forth in that part of this Decision entitled "The
Remedy."
(c) Make whole its employees for any dues or initiation
fees they may have paid to the Amalgamated, in the man-
ner set forth in that part of this Decision entitled "The
Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary or useful to analysis of the sums of money due under
the terms of this Order.
(e) Post at its Brooklyn, New York, plant the attached
notice, in English and Spanish. marked "Appendix."" Cop-
ies of said notice, on forms provided by the Regional Direc-
tor for Region 29, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
The complaint is dismissed to the extent it alleges unfair
labor practices not previously found.
29 In the event that this Order is enfobrced 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 C'ourt of Appeals Enforcing an Order of the National
I.abor Relations Board."
890