Marie Phillips, Inc.

National Labor Relations Board - Board Decisions

Sep 5, 1969

178 N.L.R.B. 340 (N.L.R.B. 1969)

340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marie Phillips, Inc. and Local 153, International
Ladies' Garment Workers' Union , AFL-CIO.
Cases 1-CA-5818 and I-CA-6060
September 5, 1969
DECISION AND ORDER
On April 17, 1968, Trial Examiner E. Don
Wilson issued his Decision in the above-entitled
proceeding. finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter. exceptions and supporting briefs were
filed by Respondent and the Union, the General
Counsel filed a brief and a supplemental brief.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision. the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions. and recommendations of the
Trial Examiner to the extent not inconsistent with
the follow ing:
1. The Trial Examiner concluded that
Respondent, in violation of Section 8(a)(5) and (I )
of the Act, refused to bargain collectively with the
majority Union on and after January 19, 1967.
Respondent disputes the Trial Examiner's factual
findings principally with respect to the Union's
majority status. It argues that although some 42 of
the Union's authorization cards (less than a
majority) were valid, the Union solicited 26 other
cards, at least 14 of which would be necessary to
establish a valid majority in the unit hereinafter
found appropriate. with the false statement that a
majority had already been obtained. Respondent's
conclusion is that the Union's resort to "bandwagon
psychology" constitutes a "fraudulent deception"
and a "subjugation of the statutory rights of the
employees" and should not be tolerated.
In rejecting Respondent's contention, the Trial
Examiner relied on our decision in the G & A
Truck Line case, 168 NLRB No. 106. In that case
we held, in accord with the opinion expressed in
Amalgamated Clothing Workers of America,
AFL-CIO (Sagamore Shirt Co) v. N.L R.B., 365
F.2d 898 (C.A.D.C.). that misrepresentations by
card solicitors that a majority had already been
obtained are generally "immaterial in determining
the validity of authorization cards, even when signed
in reliance thereon," and do not "overcome the
The Trial Examiner found that Respondent is a Connecticut
corporation We note, however , that Respondent is a New York
corporation
effect of . . . [the employees'] overt action in
signing." The Sixth Circuit Court of Appeals
disagreed with the seeming premise of our decision
that misrepresentation as to the number of
employees who have already signed must he viewed
as falling in the category of "harmless sales talk or
puffing," but nevertheless agreed that the questioned
cards in that case were properly counted because the
evidence did not substantially support a finding that
the card signers relied on the false representation as
to majority.2 We have therefore reexamined our
position as to the principles to be applied ins
situations of this kind. We continue to believe that a(
showing, without more, of a misrepresentation as tot
the number of others who have signed is insufficient)
to invalidate a clear and unequivocal designation]
card signed by an employee. This is so because such
a card must be presumed to express the individual
intent of the signer regardless of the wishes of
others. There is no necessary inconsistency between
the fact that the signer had been incorrectly told
that others had already signed and his own genuine
desire for union representation. We nevertheless
recognize, as we did in the I T. T. case 165 NLRB
No. 98, that there may be situations in which a
certain card would not have been signed but for the
subscriber's reliance upon a misrepresentation that a
majority had already signed, and to the extent that
our G & A decision suggests that reliance is a
wholly irrelevant consideration we no longer adhere
to that view. Where the objective facts, as evidenced
by events contemporaneous with the signing, clearly
demonstrate that the misrepresentation was the
decisive factor in causing an employee to sign a
card, we shall not count such card in determining a
union 's majority. However, for reasons we elaborate
on below. we adhere to the view, supported in this
respect by court precedent, that where the only
indication of reliance is a signer's subsequent
testimony as to his subjective state of mind when
signing the card, such showing is insufficient to
invalidate the card. Such subjective testimony is
hardly probative, since it is not subject to the
customary safeguards of confrontation by other
witnesses and probing cross-examination. It amounts
to an unverifiable subjective assertion about a
subjective state of mind at a time long past. Such an
assertion, being untcstable, is highly susceptible to
distortions due to hindsight, changing judgments
concerning the signer's interest, pressures brought by
the employer or others, and the like, so that present
attitudes inevitably color the signer's assertion about
his earlier state of mind at the time he signed the
card ' Particularly is this so in situations where, as
'G & A Truck Line v. N L R B . 407 F 2d 120
'As the Court of Appeals for the First Circuit remarked in N L R B v
Southbridge Sheet Metal Works, 380 F 2d 851, 856 (C A I), when
rejecting a contention that analogous misrepresentations invalidated a
union's card majority
the vacillating testimony of employees in the hearing , held almost a
year after the organizing campaign concluded and under the scrutiny
of company counsel and officials , illustrates the wisdom of requiring
178 NLRB No. 53
MARIE PHILLIPS, INC.
here, it appears that employees have been
intimidated by their employer's unfair labor
practices." Subjective assertion of reliance on the
misrepresentations involved herein cannot overcome
the objective fact of signing the card; for cards to be
invalidated on the basis of such misrepresentations,
it is necessary that the asserted reliance on the
misrepresentations be established by objective
evidence corroborating or supporting the subjective
assertion.'
Respondent has not attempted to differentiate
between subjective and objective testimony of
reliance by the 26 disputed card signers. Most of
them did not try to nullify their authorization cards,
and some, who did, did not do so until the reopened
hearing, when they gave subjective testimony only,
not susceptible of either contradiction or effective
cross-examination, that they relied on
representations that a majority had already signed.'
As an example. Respondent's brief asserts that
Lucia Sammartino, one of the disputed card signers,
testified that she would not have signed but for
solicitor Appel's statement that almost all the
employees had signed. The record shows, however,
that when Respondent called Sammartino as a
witness at the original hearing in June, she gave no
such testimony, but testified only that she signed
because she was nervous, and that the Union
solicitor showed her a bunch of cards (which she
estimated at as low as 50, or less than a majority)
and said they had all been signed, but did not tell
her how many others had also signed. It was not
until Respondent recalled Sammartino at the
reopened hearing in November that Respondent
finally elicited testimony that she would not have
signed but for the solicitor" representation that
almost all the employees had signed.
fairly strong evidence of misrepresentation and evidence of
communication or recantation before cards secured at a much earlier
date are adjudged invalid Without going so far as to say that a
misrepresentation cannot ever vitiate a card when it is not proffered as a
sole reason for signing , we have no hesitation in saying that here the
representation that there would be an election does not invalidate
Therrien's Lard
Also see Joy Silk Mills v N L R B , 185 F 2d 732 (C A D.C ). enfg 85
NLRB 1263, cert denied 341 U S 814 " an employee ' s thoughts (or
afterthoughts) as to why he signed a union card, and what he thought that
card meant , cannot negate the overt action of having signed a card '
the Board took a similar position in a related context in Levi Strauss &
Co , 172 NLRB No 57 (pp 8 and 9 ), when it held that it would not probe
into the purely subjective intent of card signers to invalidate their otherwise
clear designation cards
4rhe Supreme Court has recently stated , "[w]e also accept the
observation that employees are more likely than not , many months after a
card drive and in response to questions by company counsel, to give
testimony damaging to the union, particularly where company officials
have previously threatened reprisals for union activity in violation of
Section 8(a)(1) [citation omitted] . We therefore reject any rule that
requires a probe of an employee's subjective motivations as involving an
endless ano unreliable inquiry ' N L R B v Gissel Packing Co. 395 U S
575
'Such objective evidence would . of course, include oral statements
immediately preceding or concurrent with the signing of the card
Of the 26 disputed signers only about half a dozen-a number clearly
insufficient to destroy the Union's majority in the I10-employee
appropriate unit (as we find below ) testified as to certain objective facts
which might tend to show that their cards would not have been signed in
341
In all the circumstances, we are satisfied that the
aforementioned subjective testimony is not reliable'
and provides no probative evidence that employees
giving such testimony did not want the Union when
they signed their cards, or that they were tricked
into signing because they thought the Union already
was the exclusive representative even without their
cards.
The facts, in our view, distinguish the instant case
from N.L R.B. v. Rohtstein & Co., 266 F.2d 407
(C.A. 1). where the court set aside the Board's
finding of a union's bare card majority on the
ground that, according to the court, a signer
indicated at the time he signed the card that he was
doing so in reliance on the representation that a
majority had already been secured. Rather, the facts
are like those in N.L.R.B. v. Cactus Petroleum Inc.,
355 F.2d 755 (C.A. 5), where the court stated, with
respect to the testimony of five employees that they
would not have signed+ cards except that the union
told them that a majority of the employees had
already signed-
We agree with the Board's rejection of this
testimony on the basis that the testimony of the
signers as to their subjective state of mind at the
time of signing did not here operate to overcome
the effect of their overt action in signing.
In the absence of strong and convincing evidence
of objective facts showing that the card majority in
this case would not have been obtained but for the
misrepresentations that a majority had already
signed up, we accordingly agree with the 'T'rial
Examiner that a valid majority existed.
2. The Trial Examiner found that three named
employees, otherwise within the appropriate unit at
the first instance but for the misrepresentation that a majority had already
signed For example, Saivatrica Cancelliers testified that she had refused to
sign on several previous occasions , but finally signed because card solicitor
Fiamma told her that all but a few had signed Josephine Contrino testified
that she had refused to sign on two prior visits , but signed on the third
visit because told by i•iamma that everybody else had signed Angeline
Speziale testified that she refused a request to sign a card unless the others
did, and later when Fiamma told her that the others had signed she felt
reassured and was finally willing to sign And Maiv Petriccione on various
occasions refused Fiamma' s request that she sign a card. and finally signed
after he told her that everybody had signed , but she was unable to sleep,
and then wrote the Union a letter revoking her authorization card
Fiamma, however, denied telling any prospects that a majority of the
emnloyees had already signed Although the Trial Examiner found that the
employees testimony was controverted and declined to credit it , we note,
in addition , that such testimony , even if credited and regarded as proving
reliance, relates to an insufficient number of cards to impair the Union's
Lard majority
We also note that such testimony was uncorroborated and was adduced
alter Respondent had engaged in unlawful conduct which had the inherent
tendency of causing employees to believe , after having signed the cards,
that their interests would be best served by renouncing the Union and
reestablishing themselves in Respondent s good graces
'The unreliability of subjective testimony of this character is further
evidenced by the vacillating testimony of some of the witnesses in this case
Thus several employees testified at the original hearing that they did not
cart whether the solicitor 's statement as to majority status was true, and
others testified that they did not believe such representation of the
solicitors Yet, upon the reopening of the hearing , a number of the
aforementioned employees testified they would not have signed had they
known that the solicitor ' s statement was false
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the time of the refusal to bargain. should
nevertheless be excluded solely because they stopped
working during each year so as not to decrease their
full social security pension benefits. Respondent
contends that these employees should be included.
For the reasons set forth in the Holiday Inns case,
176 NLRB No. 124, a majority of the Board' finds
that Respondent's contention has merit. In the
present case the above-mentioned social security
pensioners have been relatively long-time employees
of Respondent, and in fact worked full-time until
becoming social security pensioners. There is no
indication that they do not intend to continue
working for Respondent in the future, they
apparently share some employee benefits, and they
do not appear to be foreclosed from other benefits
as long as their hours worked entitle them to such.
We include them in the unit.
In all other respects we agree with the Trial
Examiner's finding as to the employees in the
appropriate unit, and further find that the revised
total number of employees in the unit was 110.
3. In all other respects we adopt the findings and
conclusions of the Trial Examiner.
In adopting the finding and conclusion that
Respondent violated Section 8(a)(5) of the Act by
refusing to recognize and bargain with the Union on
and after January 20, 1967, we note that
Respondent, by its top officials (President Rametta
and Vice President Pricone), engaged in a
widespread, continuous, and flagrant campaign of
antiunion conduct, beginning in early November
1966 and not terminating until many months after
rejecting the Union's bargaining demand of January
19, 1967. Thus, individual employees were called
into the office, told that Respondent knew some
employees were trying to get the Union in, asked
about signing union cards, advised not to sign.
promised and given raises to coerce them not to
sign, threatened with loss of wages and plant closing
if the Union got in, and asked to find out who had
started the Union and to persuade fellow employees
not to sign union cards. In addition, Respondent
discriminatorily discharged an employee during the
original hearing; and after the close of that hearing
but before the reopened hearing Respondent
discriminatorily refused the unconditional requests
for reinstatement of seven other employees.
These unfair labor practices were so pervasive and
coercive as to prevent recourse to an election to
determine the question concerning representation
raised by the Union's demand for recognition and
bargaining. Accordingly, to remedy these unfair
labor practices and to effectuate the employees'
freely made choice for union representation as
manifested by the signed authorization cards of a
majority of employees in the unit, our order shall
'Chairman McCulloch and Members Fanning and Lagoria Members
Brown and Jenkins dissent, and would affirm the Trial Examiner's finding
that these employees do not have a sulliuent community of interest with
the regular employees to he included in the unit
include provisions requiring Respondent upon
request to recognize and bargain with the Union as
the exclusive representative of its employees.
N.L.R. B. v. Gissel Packing Company, supra.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Marie Phillips, Inc., Hartford, Connecticut, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating, threatening, or promising or
granting benefits to, its employees with respect to
their union or other concerted activities.
(h) Discouraging membership in Local 153,
International Ladies' Garment Workers' Union,
AFL-CIO, or any other labor organization of its
employees, by discharging employees, refusing to
reinstate unfair labor practice strikers upon their
unconditional application to return to work, or by
discriminating against its employees in any other
manner in regard to their hire or tenure of
employment or any term or condition of
employment.
(c). Refusing to bargain collectively with Local 153,
International Ladies' Garment Workers' Union,
AFL-CIO, as the exclusive representative of all
employees at its Hartford plant, excluding office
clerical employees, guards, professional employees,
and supervisors as defined in the Act, concerning
rates of pay, wages, hours of employment, and other
terms and conditions of employment.
(d) In any other manner interfering with,
restraining, or coercing its employees in the exercise
of the right to self-organiLation. to form labor
organvations, to join or assist the above-named
Union or any other labor organiLation, to bargain
collectively through representatives of their own
choosing, to engage in other concerted activities for
the purpose of mutual aid or protection as
guaranteed in Section 7 of the Act, and to refrain
from any and all such activities, except to the extent
that such right may be affected by an agreement
requiring membership in a labor organiLation as a
condition of employment as authorized in Section
8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act
of 1959.
2. 'Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Concetta Cambria, Joseph Aiello.
Francois Bessette, Virgtlio Coelho, Benny Fiamma.
Frank Papa, Thomas Spada, and Louis Greca
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and
make them whole in the manner set forth in "The
Remedy" portion of the Trial Examiner's Decision
for any loss of earnings by reason of Respondent's
MARIE PHILLIPS, INC.
discrimination against them.
(h) Notify any or all of the above employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement, upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces.
(c) Upon request. bargain collectively with the
above-named Union as the exclusive representative
of all the employees in the unit described above,
concerning rates of pay, wages, hours of
employment, and other conditions of employment
and, if an understanding is reached, embody such
understanding in a signed agreement.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and
copying. all payroll records, social security
payments records. timecards, personnel records and
reports, and all other records necessary to analyLe
the amounts of backpay due and the rights of
employment under the terms of this Order.
(e) Post at its Hartford. Connecticut, plant copies,
in English, Italian, and Spanish, of the attached
notice marked "Appendix,"' Copies of said notice,
on forms provided by the Regional Director for
Region I, shall, after being signed by Respondent's
authorized representative, he posted by it
immediately upon receipt thereof. and be maintained
by it for 60 consecutive days in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
to insure that such notices are not altered. defaced,
or covered by any other material.
(f) Notify said Regional Director, in writing,
within 10 days from the date of this Decision and
Order, What steps Respondent has taken to comply
herewith.
'in the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enlorcing an Order"
APPENDIX
NOTICE TO ALL EMPi OYEFS
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that.
You are free to join or not to join any union of your
choice. We do not have the right to interfere with your
choice.
WF WILL NOT question. threaten. or give benefits to
our employees in connection with their membership in
or sympathies for or other activities in behalf of Local
153, International Ladies' Garment Workers' Union,
AFL-CIO, or any other labor organization.
WI, WILL. Noi discharge or in any way discriminate
against any of our employees because of their activities
in behalf of the above-named Union or any other union
or because of other protected concerted activities.
343
WE WILL NOI refuse to bargain collectively with the
above-named Union as the exclusive bargaining
representative of our employees in the following
appropriate unit.
All employees employed at our Hartford,
Connecticut, plant. excluding office clerical
employees, guards, professional employees and
supervisors as del ined in the National Labor
Relations Act
WE Wit L NOT in any other manner interfere with our
employees in exercising their rights to join or assist, or
to refrain from joining or assisting any union, except to
the extent that such right may be affected by an
agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3) of the Act. as modified by
the Labor-Management Reporting and Disclosure Act
of 1959.
WF WILL. NOT tell our employees that they will not
make as much money it the plant goes Union or that
we will close the shop before we let the Union in or
that the plant won't be the same if the Union comes in
or that the employees will work less hours and be
shifted from job to job if the Union comes into our
plant.
WF WILL. NOT tell our employees that if a union
comes in they will only work a 35-hour week or that
they will end up losing money.
WI- WILL NO'i ask any of our employees to talk to
other employees and persuade them against the Union
WI, WILL NOT tell any of our employees that if the
Union gets in, the women employees will be out of a
job and that we will subcontract the work
WF WILL NOT tell any employee that it the Union
comes into our plant, we will get more employees and
cut down on overtime
WF WILL NOT ask any employee if he has signed a
card for the Union or engaged in any other union
activity.
Wr. Wit L NOl tell employees that if the Union comes
in they will lose time if there is no work in their
departments.
WE IN 11 LNOT tell our employees that we will find out
if they engaged in union activity
WE WILL NOT tell any employee that we will take
care of him if he does not engage in union activities.
WE WiI,i NOT tell any employee that he will be sorry
if he goes Union
W L WiLi. NOT ask an employee to find out from
another employee why he had signed a union card.
WE WILL NOT tell an employee that he has something
to lose if he signs to get the Union into the plant
Wi WILL oiler to reinstate and pay backpay to unfair
labor practice strikers Joseph Aiello, Francois Bessette,
Virgilio Coelho, Benny Fiamma. Frank Papa, Thomas
Spada. and Louis Greca for the wages they lost because
we did not reinstate them when they unconditionally
asked for their jobs hack.
WE WTI I notify any of the above employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces
WI, WILL offer to reinstate and pay backpay to
Concetta Cambria for the wages she lost because we
discharged her.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We WILL bargain collectively, upon request. with the
above-named Union, as the bargaining representative of
our employees in the above described unit, and embody
in a signed agreement any understanding we reach
MARIE PHILLIPS, INC.
(Emplo)er)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced.
or covered by any other material
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office . 20th Floor,
John F Kennedy Federal Building, Cambridge and New
Sudbury Streets , Boston, Massachusetts 02203, Telephone
617-223-3300.
TRIAL EXAMINER ' S DECISION
STA ri-MI \ r OF THE CASE
E. DON WILSON, Trial Examiner: The charge in Case
1-CA-5818 was filed on February 10, 1967, by Local 153,
International Ladies' Garment Workers' Union,
AFL-CIO, herein the Union Upon this charge. the
General Counsel of the National Labor Relations Board,
herein the Board, issued a complaint and notice of hearing
dated March 30, 1967. alleging that Marie Phillips, Inc.,
herein Respondent, had violated Section 8(a)(5) and (I) of
the National Labor Relations Act, herein the Act. At the
hearing herein. the complaint was amended on May 11.
1967. to allege a violation of Section 8(a)(3) and (1) of the
Act by the discharge of an employee
Pursuant to due notice. a hearing in this matter was
held before me at Hartford, Connecticut, on various dates
between May 9, 1967 and June 27, 1967, on which latter
date the hearing was closed. Subsequent to the close of
the hearing, the Board decided I T T. Semi-Conductors,
Inc., 165 NLRB No. 98, which occasioned me to reopen
the record for the purpose of receiving evidence on the
question of whether certain card signers had relied upon
alleged misrepresentations by union solicitors. Also. on
October 23, 1967, General Counsel, on the basis of a
charge tiled by the Union in Case 1-CA-6060 on August
25, 1967. moved to reopen the hearing, consolidate cases
and amend his complaint so as to allege further violations
of Section 8(a)(I), (3), and (5). On November 2, this
motion was granted over Respondent's opposition
Pursuant to due notice the reopened hearing was held
before me on November 8 and 9, 1967. at Wethersfield,
Connecticut. At the original and reopened hearing, the
parties fully participated Briefs and supplemental briefs
and memorandum letters have been received from General
Counsel and Respondent and memorandum letters have
been received from the Union. All have been considered.
Upon the entire record' in the case and from my
observation of the witnesses, I make the following.
FINDINGS OF FACT
1. RESPONDENT'S BUSINFSS
At all times material Respondent has been a
Connecticut corporation with its principal office and place
The motion to correct the transcript is granted
of business located in Hartford. Connecticut, where it has
been engaged in the manufacture, sale, and distribution of
women's dresses and related products Annually
Respondent ships dresses valued in excess of $50,000 from
its Hartford plant directly to points outside the State of
Connecticut At all material times Respondent has been
engaged in commerce within the meaning of the Act.
It. THE LABOR ORGANIZATION
At all material times the Union has been a labor
organization within the meaning of the Act
III THE LNFAiR LABOR PRACI'iCES
A. The Issues
(1) Did several representatives of Respondent interfere
with, restrain, and coerce employees by a variety of
conduct including interrogation, threats of plant closing
and loss of overtime, otters and grants of increased
benefits if the Union were rejected, threats of loss of
employment and benefits, (2) Did Respondent discharge
an employee because of her union activities, (3) Did
Respondent unlawfully refuse to bargain with the Union;
and (4) Was there an unfair labor practice strike and are
various strikers entitled to reinstatement and baekpay?
B. Background
Respondent's is a family business, the princpal
stockholders being Frank Rametta. president, and his
close relative, Minnie Pricone, vice president. They have
been engaged in the dress manufacturing business for over
35 years Each is 73 years of age As Respondent points
out in its brief. many of the employees are of "foreign
extraction" and quite friendly with management.
In September 1966,2 the Union began an organizing
campaign among Respondent's employees
C. The Request To Bargain
On January 19, orally and by letter the Union
demanded of Rametta that Respondent recognize the
Union as bargaining representative of Respondent's
employees. The Union offered to prove it, majority
"through an impartial card count." On January 24,
Ramctta told the union representative, Cooper, that he
didn't believe the Union represented his employees and
declined to recognize the Union. On January 25. the
Union again demanded recognition Recognition was
again refused. It is clear from the record that the Union
was demanding bargaining and Respondent refused to
bargain
D. Appropriate Unit
While there are questions as to the inclusion or
exclusion of particular employees within the unit, I find
based upon the entire record, that an appropriate unit is:
All employees of Respondent employed at its
Hartford; plant, excluding office clerical employees,
guards, professional employees and supervisors.
'Hereinafter the last 6 months of the year refer to 1966 and the Iirst 6
months of the year refer to 1967, unless otherwise stated
MARIE PHILLIPS . INC. 345
The above unit amounts to a production and
maintenance unit. The Board has found that in this
industry such a unit is an appropriate one.'
In evidence is a payroll list of all employees for the pay
period ending January 21, and no employees were added
to or taken off this list between January 19 and February
7. There are 115 names on the list. It was stipulated that
two employees. Delgado and Garfi, were incorrectly on
the list, reducing the number of employees to 113. General
Counsel would eliminate and Respondent would retain 7
other employees whose names are on the list, Mozzicato,
Vasques, Vinci. Scolowski, Jackson, Smith and Thelma
Walton. Respondent would eliminate from and General
Counsel would retain on the list the cutters, Aiello,
Bessette, Coelho, DeMauro, Fiamma, Greca, F amiglietti,
Papa and Spada. Respondent would also eliminate from
the list and General Counsel would retain on the list two
IBM operators, Green and Harris.
1. Social security recipients
Mozzicato, Vinci, and Vasques have each been
employed by Respondent for over 20 years as operators.
Each draws a social security pension. They limit their
earnings so as not to decrease their full social security
benefits When they have earned $1,500 in a year,
Respondent so informs them and they stop working for
the balance of the year. In light of the special employment
status, they do not have sufficient community of interest
with regular production and maintenance employees to
warrant their inclusion in the unit.' I exclude them
2. Theresa Scolowski
Scolowski last worked the week ending December 31.
Respondent has been unable to locate her although it has
tried Since December she simply has not shown up for
work. Respondent does not know why I find that as of
January 19 and thereafter, she was not an employee and
she is not included in the unit.
3. Beulah Smith
Smith last worked the week ending August 20 until she
returned to work about May 20 during the course of the
hearing She had left because of pregnancy and she had an
understanding with Respondent that she would return to
work when she was ready Her insurance was canceled by
Respondent while she was oft work but such cancellation
is automatic in pregnancy cases until they return to work.
The record does not reveal when Smith had her child but
it was probably about a month before November 21 when
her insurance was cancelled. I find she was on pregnancy
leave between January 19 and February 7 and should be
included in the unit.
4. Thelma Walton
Thelma Walton left Respondent's employ a "couple of
years" before the hearing. She said she didn't feel well.
She received no earnings in 1966. Respondent carried her
on the payroll for about a year. She returned to the
employ of Respondent about May 15. I do not consider
that she was on leave of absence or sick leave from
'Dove Manufacturing Co. 128 NLRB 778
'Taunton Supply Corp , 137 NLRB 221, 223, Horn & Hardart
Company, 147 NLRB 654, 659
January 19 to February 7 1 find her employment had
ceased. She is not included in the unit. There was no
continuing employer-employee relationship.
5. Betty Jackson
Jackson left because of pregnancy on April 9, 1966. As
of the dates of the hearing, she had not returned to work.
Respondent claims it holds a job open for a couple of
years in case of pregnancy but I find this is too loose an
arrangement to constitute a continuing employer-employee
relationship. Jackson's insurance was cancelled in
December. I find she was not an employee as of January
19 to February 7 and she should not be included in the
unit
6 The cutters
There were nine cutters as previously indicated During
the period in question the cutters were temporarily in a
building separate from but adjacent to the building
housing the rest of the employees. By October 1967, all
employees including cutters were to he in the one building.
The cutters have their own supervisor who does not
supervise other employees. The cutters do not customarily
do any work but cutting. Since the cutters constitute a
craft they might constitute a separate unit. But here, no
labor organization seeks to represent them apart Irom the
production and maintenance employees While
temporarily housed in a separate building they are part
and parcel of a single operation. The Union seeks to
represent the cutters as part of the production and
maintenance unit and the cutters and other employees
..may also constitute a single bargaining unit.'
The cutters are included in the unit.
7. The IBM operators
There are two IBM operators They work in the
shipping department in an area partially partitioned by
their IBM machines and filing cabinets The man who fills
an order in the shipping department places an IBM
number on the rack with the garments and pushes the
rack oNer to the IBM operators who are located right next
to where they pick the dresses The IBM operator goes to
the rack and pulls the IBM folder which is on the first
garment of the order. She checks the IBM folder and then
counts the number of dresses in the order to insure that
the number in the folder is accurate. She then-prepares
invoices with the use of a typewriter and IBM machine
She hangs the invoice back on the order. A shipping
department employee picks up the order and double
checks to see that the girls used the right cards and that
the order and invoice are correct This employee then
wheels the order over to packing which is part of the
shipping department. The IBM folders remain in the
shipping department. When the girls count the number of
dresses on the rack and in an order they do so by hand. In
preparing the invoices most of the work is done by the
IBM machine and the balance by typing. Respondent's
payroll records list the IBM operators as being in the
shipping department.
The IBM operators needed to meet certain minimal
educational requirements and in the event one was away
from work other employees were not qualified to
substitute for her. These girls took no dictation and their
'K W.B. Manufacturing Company, 106 NLRB 1305, 1306
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clerical work was limited to the typing on the invoices and
operation of the IBM machines. There are no other
alleged clerical employees.
I find these girls had more of a community of interest
with the shipping department employees than did the IBM
typists who worked in partitioned offices in Newark
Electronics Co., Inc., 131 NLRB 553, cited by
Respondent. I find. contrary to Respondent's contention
that the IBM operators are office clericals, that they are
plant clericals and therefore included in the unit.
8. Total number of employees in unit
As of January 19 to February 7, having eliminated 8
employees from the list of 115 employees, I find there
were 107 employees in the appropriate unit.
E. Majority'
General Counsel contends that though the Union made
its last bargaining demand on January 25, such demand
was continuing at least until February 7, when the Union
struck because of Respondent's refusal to bargain and
other unfair labor practices. In the circumstances of this
case, I find that the Union by its oft repeated demands for
recognition was repeating such demand when it struck on
I-ebruary 7. Respondent refused to comply with such
request. There had already been refusals to bargain
following clear requests to bargain. The strike was an
attempt to enforce the requests. As of the time of the
strike on February 7, a further expressed request to
bargain "would have been a vain and useless formality."6
General Counsel has introduced into evidence 69
authorization cards signed or marked by employees or in
one instance, by agent. within the unit. By these signed
cards, each signer authorized the Union "to represent me
in all matters of' collective bargaining with my employer"
(Respondent). Some of these 69 cards were printed in
Italian and contained substantially the same authorization.
The authorizations are unambiguous. Fifty-four employees
constituted a majority.
1 Strictly confidential or secret
Each English written card is marked in plain words,
"Strictly Confidential." The Italian written cards have a
substantially equivalent marking in Italian.
Respondent contends that no cards obtained by union
solicitors should be considered because, since the cards
were marked "secret", the solicitors were not competent
witnesses Respondent insists that only the signers were
competent witnesses. Respondent claims that no signer
released a solicitor from the "secrecy" agency.
Here, assuming an agency relationship. "An agent is
privileged to reveal information confidentially acquired by
him in the course of his agency in the protection of a
superior interest."'
Here the effectuation of the purposes of the Act
requires the disclosure of the names of the signators. The
interests of the United States require this disclosure.
These cards, including their signatures, were relevant to
material matters before an agency of the United States.
There is a paramount public policy of allowing
unrestricted inquiry. There is here no such relationship as
attorney-client or doctor-patient. Here the cards are
'Scobell Chemical Co. v N L R B. 267 F 2d 922, 925
'Restatement of Agency 2d, Section 395, Comment f
unambiguous and clear. There was no fraud as to the
purposes of a card.
In N,L.R B. v. Consolidated Rendering Company. 386
F.2d 699 (C.A. 2), the court held. "Three cards were
challenged on the ground that the signers had been told
that the cards would not be shown to anyone. The Board
argues that this does not detract from the reliability of the
cards so as to justify their invalidation. We agree
Compare N.L.R-B- v Southbridge Sheet Metal Works.
Inc., 380 F 2d 851, 856 (1st Cir 1967)."
The "secret" notations on these cards did not make the
witnesses incompetent as to their testimony identifying the
signatures.
2. Alleged misrepresentations as to majority signing
Twenty-six employees' testified that they signed cards
in reliance on alleged misrepresentations that a majority
or most or 95 percent, or such, had already signed cards
for the Union. Respondent urges that the cards are
therefore invalid. Much of this testimony was denied by
union solicitors. Some of the representations were
allegedly made by fellow employees and General Counsel
contends that the Union would not be responsible for such
alleged misrepresentations because the fellow employees
were not agents of the Union. I do not resolve the
credibility issues nor pass upon any agency theory. There
is no suggestion that any employees were coerced by the
alleged misrepresentations into signing cards. No threats
were addressed to any card signer. Assuming, arguendo,
there were reliances upon such false statements, "Such
puffing does not vitiate the cards. . . "
The Board in I.T.T Semi-Conductors, Inc., 165 NLRB
No. 98, indicated that a card would be rendered invalid
upon proof that it would not have been subscribed but for
the erroneous representation that a majority had signed
cards. This decision occasioned me to reopen the record in
this case to receive further evidence. Since the I.T.T
decision the Board has decided G & A Truck Line, Inc.,
168 NLRB No. 106, holding clearly that
misrepresentations as to majority, "are immaterial in
determining the validity of authorization cards, even when
signed in reliance thereon." The Board continued, holding,
"Such statements are harmless salestalk or puffing, which
do not operate to overcome the effect of . [the
employees] overt action in signing."' The Board in this
case cited appropriate precedents."
The wording on the cards was unambiguous. An
employee's subjective state of mind as revealed months
later should not negate the clear statement of the card as
to bargaining representative choice. The subjective intent
does not vitiate the act of signing a card."
We agree with the Board's rejection of this testimony
on the basis that the testimony of the signers as to their
subjective state of mind at the time of signing did not
'Concetta Rizza, Concetta Manciaglia, Josephine Tanasi, Flizabeth
Hayes, Angeline Spcriale. Mary losi, Ruth Hill. Marcellma Vasquenz,
Ida Thomas, Ethel Hall, Atilia DeRcnzo, Lucia Sammaruno, Fheresa
Gentile, Hollyfield Hardwick, Ortilla Cerejo, Guissepia Italia, Anna
lnterlandi . Marv Pettricione , Giuseppina Tiralongo, Giuseppima Formica.
Willie DeLawrence , Ethel Campbell, Mander Henderson , Louise Rossano,
Angelo Casais, Salvaticia Cancellieri
'Amalgamated Clothing Workers of America (Sagamore Shirt Co) v
N L R B.. 365 F 2d 898, 906-907 (C A.D.C )
'°Cf N L R B v Rohtstein , 266 F 2d 407, N L R B v Dan Howard
Mfg Co.. 390 F 2d 304 (C A 7) N L R B. v United Mineral & Chemical
Corporation . 391 F 2d 829 (C A 2)
"Gary Steel Products Corp . 144 NLRB 1160
MARIE PHILLIPS, INC.
here operate to overcome the effect of their overt action
in signing.12
I find testimony as to signing cards in reliance on
statements that a majority or more of employees had
signed cards is speculative and subjective at best and
clearly irrelevant and immaterial. Such cards are to be
counted as evidence of majority status should such be the
only evidence offered to vitiate them.
3. Alleged misrepresentations that Louis DeMauro
had signed a card for the Union
DeMauro never signed a card. Two card signers,"
testified that they signed after they were told DeMauro
had signed a card. As Respondent contends in its brief,
DeMauro is one of the oldest employees of Respondent
and is highly regarded by employees. Assuming, arguendo,
that misrepresentations as to DeMauro were made, they
would be immaterial as mere salestalk or puffing easily
checked out by any employee. Any employee could have
asked DeMauro for the facts as to his signing, if
interested therein. If such misrepresentations were made,
they did not invalidate the cards.
4. Alleged harassment by union solicitors
Three employees10 testified that one of the reasons they
signed cards was because the Union harassed them into
signing. The substance of the testimony does not reveal
more than repeated importuning to sign a card sometimes
by telephone calls at night. Assuming, arguendo, the truth
of the testimony, it is immaterial . There is clearly no
evidence of coercion. Such evidence does not invalidate
the cards.
5. Alleged ignorance of purpose of the card
Employee Ruth Hill testified that she did not know
what the card was for when she signed it. Her testimony
reveals that a week earlier she had been handed a card
and told it was for the Union. She asked the man who
gave her the instant card, "what was everybody signing it
for -the Union?" He replied, "Yes." She testified she
asked this man "about the cards that were going around
for the Union " She asked the man "about signing for the
Union for cards." I find Hill knew what she was signing.
Angela Casais testified she did not realize she was
signing a card for the Union. The card was in English and
she neither reads nor speaks English. However, she
testified her daughter and 16-year-old granddaughter told
her before she signed, that the card was about the Union
"and it was a benefit for the others." She was told the
card was a benefit "for the workers." I find she knew she
was signing a card for the Union for the benefit of her
fellow employees. The card is valid as is that of Hill.
6. Concluding findings as to majority
Respondent, in its brief, has attacked 26 cards of
employees on the grounds above stated in addition to the
attack on all cards because of Secret. I find no merit to
these attacks and find that from January 19 to February
7, the Union had valid cards from 69 of the 107
employees in the appropriate unit.
"N L R B v Cactus Petroleum , Inc, 355 F 2d 755 (C A 5)
"Theresa Gentile and Hollyf,eld Hardwick
"Elizabeth B. Hayes, Angeline Speziale, and Atilia DeRenzo
F. Violations of Section 8(a)(1)
347
I find Union Representative Arthur Appell was an
honest witness. Respondent strongly attacks the credibility
of Appell in its brief but after a careful study of the entire
record including the most extensive cross-examination of
Appell, I am convinced that he was an intelligent witness
who testified truthfully. His demeanor impressed me
favorably.
Appell testified that union organization began on
September 6, when he distributed leaflets to Respondent's
employees in front of Respondent's plant. He handed a
leaflet to Minnie Pricone, one of Respondent's two
owners, who took it into the plant. I find that Respondent
was aware of union activity at its plant as early as
September 6
Violations before January 19
1. Virgilio Coelho
At the time Coelho testified he was on strike. He
impressed me as a reliable witness. In early November,
Frank Rametta, Respondent's president, spoke to Coelho
in Rametta's office. Minnie Pricone was present. Rametta
told him the boys were trying to put the Union in the
shop. Rametta then said, "You're a good boy and I'm
going to give you a 25 cents raise." Then he said, "I just
don't care about the Union. Don't sign any papers and I
will see you later." The next week he received a 25-cent
raise. During the conversation with Rametta, Rametta
said DeMauro would speak to Coelho about the Union.
Coelho indicated in his testimony that around the time he
received the raise he had more responsibility on his
machine. However, Rametta's statements to Coelho make
clear that a basis for his raise was his hoped for rejection
of the Union. I find Respondent violated Section 8(a)(1)
of the Act by promising Coelho a raise and giving him
one conditioned on not signing with the Union.
2. Theresa Gentile
Theresa Gentile has been an employee of Respondent
for 22 years. Early in November she spoke to Rametta
and Minnie Pricone about the Union. They asked her, in
their office, if she had signed for the Union. She said she
had. Mrs Pricone said she didn't like the idea because
having been with the Company for so many years Gentile
was just like one of the family. Rametta said they didn't
want the Union in the shop. It was about this point in her
testimony that Gentile volunteered that she wished she
had never signed a union card and would rip it up if she
had it. She said she got no peace in her house or in the
shop. Rametta indicated to her that if the plant went
Union the employees would not make as much money.
Rametta added that he never wanted to see the Union in
the shop and "would close the shop first before he would
let the Union in." He said that if the Union came in, the
shop wouldn't be the same, the hours of work would be
less and they would not be shifted from job to job but
rather would be sent home if there was no work. They had
always worked a 40-hour day. In the middle of
November, Rametta discussed a pay raise with Gentile.
He told her if she wanted anything just to come to him. If
she had a problem he would take care of her. Two to four
weeks later she received a pay increase. Rametta denies a
conversation with Gentile about the Union. Gentile, at the
time she testified, was most antiunion. She wanted to
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
destroy her card. She testified in the presence of Rametta
and his two very able attorneys and possibly before Sal
Malluzzo who was usually present at the hearing. She was
a most reluctant witness for the General Counsel, who had
to refresh her recollection from her pretrial affidavit. She
obviously testified truthfully against Respondent's interests
which she showed by her testimony were akin to hers.
Rametta was present at these lengthy proceedings "from
morning to night." I distinctly do not credit Rametta's
testimony. Most of his testimony on direct examination
came from leading questions although I continually
admonished against this, until it became pointless. In
some instances he didn't recall conversations he had with
employees. He admitted he told Benny Fiamma that he'd
"be sorry by doing all these things here because you know
my position."" He asked Fiamma not to make it harder
for him because he was 74 years old. Rametta was
perfectly able to reply to nonleading questions as
evidenced by his frequent volunteered answers. Rametta
deeply loves his shop and believes his employees should
reciprocate. He and other employees have been working
there 35 years. He could not recall conversations with
employee Spada about wage increases. He did recall that
he told his assembled employees they should not have a
bunch of New York guys" come in and tell him what to
do. He went to employee John Reed who had worked for
him for 22 years and asked him to find out who had
gotten the Union going and what was going on. He asked
Reed what he thought of the union situation. He told
Reed, who was Negro, to "See some of your people in
packing." All the packing employees were Negroes. Reed
reported to Rametta that only two packing employees had
signed cards out of 16 or 17 employees he had
interrogated.
I credit the testimony of Gentile in these respects.
Respondent violated Section 8(a)(1) of the Act by
Rametta's statements that the employees would not make
as much money if the plant went Union, that he would
close the shop before he would let the Union in, that the
shop wouldn't be the same if the Union came in, they
would work less hours and would be sent home rather
than shifted from job to job. Respondent also violated
Section 8(a)(1) of the Act by promising and granting a
wage increase to Gentile for the purpose of discouraging
her union activities.
3. Thomas Spada
Thomas Spada had been an employee of Respondent
for 12 years and was on strike when he testified. He
impressed me as an honest witness. On January 12, he
had a conversation with Rametta in the latter's office.
Rametta asked him how many children he had and he
said three. Rametta suggested he could use more money
and Spada agreed. Rametta said he'd find a little extra in
his pay envelope the next week. Rametta added that he
had heard the boys were signing union cards. Rametta
continued, saying that as long as he lived there would be
no Union in the shop and nobody would tell him how to
run his place. He said that if a union got in they would
work only a 35-hour week and the employees would end
up losing money. As Spada was leaving Rametta asked
him to talk to the boys and see what he could do. In the
conversation Rametta said that if the Union got in, all the
""These things" obviously referred to Fiamma's union activities
F ►amma was very active in union organization.
"Testified to by General Counsel' s witness as Jews.
women would be out of a job and he would subcontract
the work. He said that if the Union came in he would get
two more cutters to cut down on overtime. Rametta
finally asked Spada to talk to the boys and see what he
could do and told him he would take care of him as long
as he was a good boy. Rametta said there would a raise
the next week. Spada did not get the raise.
I find Respondent violated Section 8(a)(1) of the Act by
Rametta's promise of a raise to Spada if he would drop
the Union and by threatening detriments to employees if
they chose the Union.
4. Antonia Salidino
Salidino truthfully testified that Minnie Pricone asked
her in November , whether she had signed a card for the
Union ." This interrogation violated Section 8(a)(1) of the
Act.
Violations after January 19
On January 19 and 20 Rametta gave talks to his
assembled employees, the first in Italian, the second in
English. I find insufficient credible evidence that Rametta
violated Section 8(a)(1) in either speech. He did, however,
tell the employees that if they did not want to talk to him
they could talk to Sal Malluzzo, Sal Pricone, Frank
Garfi, or John Reed. This was in the context of talk about
the Union.
1. John Reed
Reed is not a supervisory employee. He was an
employee with 26 years service for Respondent.
Shortly after receiving the Union's first demand for
recognition, Rametta called Reed into the office. Rametta
told Reed he had heard the shop was 90 percent Union
and he wanted Reed to verify the facts in the shipping
department. Reed then interrogated employees in the
shipping department and two cutters and some pressing
department employees. Considering Reed's demeanor I
am convinced he testified with considerable prejudice on
behalf of Respondent. I find from all the evidence that he
interrogated more employees than he admitted. He
admitted telling some employees that if the Union came in
and there was no work in their department, they would
lose time. Customarily, they always worked a 40-hour
week.
Florence Mond credibly testified that Reed told her not
to sign a card after she denied signing one, adding that if
she signed "they" would find out. Reed then spoke to the
rest of the pressers.
Mozella Peters credibly testified that after she denied
signing a card in response to Reed's interrogation, Reed
told her to stay away from the Union and Rametta would
take care of her. Peters then received a raise of 15 cents
an hour. This may have been to bring her up to the new
Federal minimum wage. However, the next week, Reed
asked her if Rametta had not taken care of her as he said
he would.
Reed's widespread interrogations had no safeguards to
detract from their coercive nature and were in some
instances accompanied by threats and promises of
benefits. This was after Rametta told the employees to
talk to Reed about the Union. I find it clear that Reed
"Mrs Pricone did not testify because of a physical and emotional
condition as evidenced by a Doctor's certificate.
MARIE PHILLIPS, INC. 349
was an agent of Respondent in this activity which violated
Section 8(a)(1) of the Act
2. James Bostick
Bostick was an employee of Respondent for 3 1/2
years. He appeared to me to be a reluctant but most
honest witness for the General Counsel. Around January
19, Reed asked Bostick if he had signed a card When
Bostick said he had, Reed wrote on a pad and- then went
into Rametta's office. A short time later Rametta came to
Bostick and asked him if he had signed a card. Bostick
admitted he had. Rametta said if anyone had told him
Bostick had signed a card he would have spit in his eye
because Bostick was like a son. Rametta told him
Supervisor Garfi was on his way out and Bostick was
going to take over the shipping department. Rametta told
Bostick he would be sorry it he went with the Union.
Rametta left and about 15 minutes later he returned and
told Bostick his paycheck would be heavier on Friday. He
asked Bostick to find out from another employee. Lynn,
why she had signed a union card as reported by Reed, and
Bostick agreed to do so After the conversation, Bostick
received a 10-cent raise.
By Ramctta's conduct with respect to Bostick as herein
found, Respondent violated Section 8(a)(l) of the Act.
3. Edward Walton
Walton was employed by Respondent for about 9 years
when he testified. I credit his testimony. In January Reed
asked Walton if he had signed a union card and Walton
replied it was none of Reed 's business . Shortly thereafter,
Rametta came to Walton and asked him if he had signed
a union card Walton said he had. Rametta asked him
why and Walton said he was just going along with the
boys. About January 23, Rametta asked Walton if he was
going to be with him and Walton said he'd have to wait
and see. I find Walton's testimony inconclusive as to
whether Rametta's giving him some shirts had anything to
do with union activity
Reed's and Rametta's interrogations of Walton
provided no safeguards, and they were coercive, in
violation of Section 8(a)(l) of the Act.
4 Aurelia Fusco
Fusco appeared to me to be an honest witness. She was
an employee of Respondent when she testified and had
been for 4 1/2 years. On January 20 Supervisor Sal
Pricone asked her if it were true that she had signed for
the Union. She said she hadn't, though she had. He
reminded her of past failings and told her "you would
have something to lose if you did sign to get the Union
in." By his interrogation and threat, Pricone on behalf of
Respondent, violated Section 8(a)(1) of the Act.
5. Famiglietti and Fiamma
These employees mutually corroborated each other and
I do not credit Ramctta's testimony where it contradicts
theirs Each impressed me as a reliable witness. About
January 26, in front of the entrance to the plant, Rametta
spoke to Famiglietti, Fiamma and Bostick. Rametta
asked Fiamma if he was still working hard for the Union.
When Fiainma gave a defensive answer, Rametta told
Fiamnia he was going to lose. He said they didn't need
the Union and he could take care of them. He said that
instead of paying union dues they could have their own
plant insurance. He said he was 73 years old and didn't
need the shop, so he could close it up, he could
subcontract all but the shipping room. He told them that
if they wanted to be happier in the cutting room he could
change the head of the shipping department He said the
men were going to be hurt and a lot of innocent people
would be hurt, too. By Rametta's threats and promises to
Famigltetti, Fiamma and Bostick. Respondent violated
Section 8(a)(1) of the Act.
G. Discharge of Concetia Cambria
Cambria was employed by Respondent for at least 14
years Her demeanor impressed me favorably. She
testified about her discharge over the telephone by Vice
President Minnie Pricone As previously noted, Minnie
Pricone did not testify. On the night of May 10, the day
the hearing in this matter opened, Mrs. Pricone called
Cambria, as was a not unusual practice. They had been
friends for years. Mrs. Pricone said she never expected
Cambria to join the Union since they had been friendly.
Cambria said she had joined the Union. Mrs. Pricone
wanted to know if Cambria had anything against
Respondent. Cambria said she did not. Mrs. Pricone then
said, "You know, in doing that, you know you lost your
job. You lost the insurance." She said Cambria had lost
her job because she had joined the Union.
I have not the slightest doubt that Mrs. Pricone
discharged Cambria because of her union activities.
Cambria was on leave to take care of her sick husband,
when she was discharged. Sal Malluzzo testified that
Respondent never sent a discharge notice to Cambria and
that she was still in Respondent's employ at the time of
the hearing Absence of a notice of termination does not
militate against Mrs. Pricone's clear and authoritative
words of discharge. There is no evidence that Respondent
has ever offered Cambria reinstatement. I find
Respondent discharged Cambria on May 10, while she
was on leave to care for her sick husband, because of her
union activities, in violation of Section 8(a)(3) and (1) of
the Act.
H. Refusal To Bargain
Respondent, by its numerous unfair labor practices,
demonstrated its bad faith in refusing to bargain with the
Union which represented the majority in an appropriate
unit. Respondent has shown a complete rejection of the
collective-bargaining principle and its determination to
destroy the union's majority. Respondent sparred for time
and committed unfair labor pratices in an effort to
undermine the union 's majority. Respondent's refusal to
bargain with the Union violated Section 8(a)(5) and (1) (3f'
the Act.1e
1. The Unfair Labor Practice Strike
On May 25, during the course of the hearing, the
complaint was amended to allege that a strike which
began on February 7, was an unfair labor practice strike.
On February 7. employees of Respondent went on
strike. On February 6, according to the credited testimony
of Bert Cooper, the union's state director," about 35 of
Respondent's employees attended a meeting and voted to
"Joy Silk Mills, Inc v N.L R B, 185 F 2d 732 (C A D C ). cert denied
341 U S 914
"Considering the demeanor of Mander Henderson, I do not credit her
testimony that only union cards were discussed at this meeting.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
go on strike because of Respondent's unfair labor
practices The strike which began on February 7, was an
unfair labor practice strike and was so announced by a
picket sign.
J. Unilateral Elimination of Certain Job
Classifications and Refusal To Reinstate Strikers
It was stipulated that the following employees of
Respondent engaged in the strike against Respondent on
February 7, and continued to strike until they applied for
reinstatement on the dates indicated
names'
alongside their
Joseph Aiello July 24, 1967
Francois Bessette July 24, 1967
Virgilio Coelho July 24. 1967
Benny Fiamma July 24, 1967
Frank Papa Juiy 24, 1967
Thomas Spada July 24, 1967
Louis Greca August 10, 1967
It was further stipulated that with respect to the first
six above employees, on July 27, 1967, and with respect to
the last of the above employees, on August 11. 1967,
Respondent refused reinstatement on the grounds that
permanent replacements had been hired and Respondent
had eliminated certain jobs. The record makes clear that
Respondent did not bargain with the Union about the
elimination of jobs These employees were unfair labor
practice strikers and were entitled to reinstatement upon
their unconditional request for the same if there were jobs
available. There is no credible evidence that jobs were not
available. The record does not reveal the basis for the
claimed elimination of jobs and I find Respondent has not
sustained its burden of proving that the strikers' jobs no
longer existed. Presumptively, their jobs continued in
existence. It is clear that the fact some may have been
replaced does not affect their rights to reinstatement as
unfair labor practice strikers.
IV. THE EFFECT OF THI' UNFAIR LABOR PRaCTiCES UPON
COMMERCE
Respondent's activities set forth in section 111, above,
occurring in connection with the operations of Respondent
described in section 1. above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and' tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
The Remedy
Having found that -Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to elfectuate the policies of the Act The nature
of the violations strikes at the heart of the Act and calls
for a broad order.
It has been found that the Union represented a
majority of Respondent's employees in an appropriate
unit and requested recognition and bargaining, the same
being unlawfully refused. I shall recommend that
Respondent bargain, upon request , with the Union and, if
any understanding is reached , embody such understanding
in a signed agreement.
It has been found that Respondent discharged Cambria
in violation of Section 8 ( a)(3) and ( 1) of the Act I shall
recommend that Respondent offer Cambria reinstatement
and make her whole for any loss of pay she may have
suffered by reason of the discrimination against her in the
manner set forth in F. W. Woolworth Company, 90
NLRB 289, with interest computed in the manner
described in Isis Plumbing & Heating Company. 138
NLRB 716.
It has been found that Respondent violated Section
8(a)(3) and (1) of the Act by refusing and failing to
reinstate the unfair labor practice strikers upon their
unconditional requests for reinstatement I shall
recommend that Respondent offer them reinstatement 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 the paragraph above dealing with
Cambria.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
Conclusions of Law
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. By discharging Cambria and by failing and refusing
to reinstate the unfair labor practice strikers upon their
unconditional request, Respondent violated Section 8(a)(3)
and (1) of the Act.
4. All employees of Respondent employed at its
Hartford plant, excluding office clerical employees,
guards, professional employees and supervisors as de tried
in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b)
of the Act.
5. The Union has been at all times since on or about
January 19, and now is, the exclusive bargaining
representative of the employees in the above described
unit within the meaning of Section 9(a) of the Act.
6. Since January 19, by refusing to bargain collectively
with the Union as the exclusive bargaining representative
of the employees in the aforesaid unit, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
7. By interrogations, threats and promises and granting
of benefits addressed to employees, Respondent has
interfered with, restrained, and coerced employees and
committed unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
8. The strike, which began on February 7, was an
unfair labor practice strike.
9 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication ]