Palby Lingerie, Inc.

National Labor Relations Board - Board Decisions

Sep 16, 1980

252 N.L.R.B. 176 (N.L.R.B. 1980)

PALBY LINGERIE, INC.
Palby Lingerie, Inc. and Argus Lingerie Corp. and
Local 57, Nassau-Suffolk District Council, In-
ternational Ladies Garment Workers Union,
AFL-CIO
Elmont Underwear Corporation, Richwear Sports-
wear, Inc., Palby Lingerie, Inc. and Argus Lin-
gerie Corp. and Local 57, Nassau-Suffolk Dis-
trict Council, International Ladies Garment
Workers Union, AFL-CIO. Cases 29-CA-7084,
29-CA-7139, 29-CA-7163, 29-CA-7219
September 16, 1980
DECISION AND ORDER
On May 30, 1980, Administrative Law Judge
Julius Cohn issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the Charging
Party Union filed an answering brief.
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 conclusions2 of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein. 3
In his Decision, the Administrative Law Judge
found that Respondent violated Section 8(a)(3) and
(I) by laying off employee Sharon Hunter on Feb-
ruary 12, 1979, and by constructively discharging
her on May 1, 1979. While we agree, for the rea-
sons stated by the Administrative Law Judge, that
Hunter was discriminatorily discharged on May 1,
we conclude the evidence does not support his
finding that she was discriminatorily laid off on
February 12. Prior to her February 12 layoff,
Hunter had been employed for 2 days. At the end
of her second day of employment, she informed
Respondent that she preferred work other than
that to which she had been assigned, and that she
did not care to return to the same job she had been
performing. When it was explained that the only
work available was that which she had been doing,
Hunter agreed to Respondent's request that she
come in the following workday. On the third day,
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces 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
carefully examined the record and find no basis for reversing his findings
2 In adopting the Administrative Law Judge's conclusion that Re-
spondent violated Sec. 8(a)(3) of the Act by terminating Rosetta Lyons.
we note that Respondent does not contend Lyons' discharge was the
result of an attempt to enforce a lawfully promulgated rule restricting
distributions in working areas during nonworking time. See Stoddard-
Quirk Manufacturing Co., 138 NLRB 615 (1962).
a In accordance with his dissent in Olympic Medical Corporaion, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
however, Hunter did not arrive at work by the
normal starting time, but was at home when Re-
spondent called to inform her not to bother coming
to work.
At the time of her layoff, Hunter's single in-
volvement in the union organizing campaign had
been to sign a union authorization card, which she
did after her second day at work. However, there
is no evidence that Respondent had any knowledge
of her signing such a card prior to her layoff. Al-
though the Administrative Law Judge correctly
states that Respondent did not provide Hunter with
an explanation for her layoff, we draw no adverse
inference therefrom, because at the time Hunter
had worked only 2 days, had expressed a clear lack
of desire to perform the work she had been as-
signed, and failed to appear for work at the sched-
uled time on the third day. In these circumstances,
the absence of an explanation to Hunter is not pro-
bative of a discriminatory motive. Accordingly, we
shall dismiss the complaint allegation that Respond-
ent laid off Hunter on February 12 in violation of
Section 8(a)(3) of the Act.
We further find, contrary to the Administrative
Law Judge, that Respondent has not engaged in
surveillance of its employees' protected concerted
activity. The only evidence in support of his find-
ing of surveillance consists of testimony that var-
ious members of the Israel family, which controls
all four corporations found to constitute a single
employer, were seen observing nonemployee union
organizers "demonstrating" and soliciting employ-
ees in front of Respondent's Elmont plant. Such
evidence, indicating no more than a brief inspec-
tion by Respondent of open union activity in front
of its property does not constitute surveillance and
we shall dismiss that allegation of the complaint.
See ITT Automotive Electrical Products Division, 231
NLRB 878 (1977); see also Ravenswood Electronics
Corporation, 232 NLRB 609 (1977).
Finally, we shall dismiss the allegation in the
complaint that Respondent has created the impres-
sion of surveillance. The predominant evidence to
support this allegation is that Respondent's Pauline
Israel informed a group of employees, as well as
employee Lyons individually, that somebody in the
shop was giving the Union information about em-
ployees, and that she heard that the "the Union
was going to the people in the shop." Such gener-
alized statements to employees, which are not di-
rected at any employee's organizing activities, are
insufficient to create the impression of surveillance.
The remaining evidence, the remark that an em-
ployee is known to be wearing a union button and
the noting of the presence of a union organizer out-
side the plant, is similarly not unlawful on this
252 NLRB No. 32
176
PALBY LINGERIE, INC.
ground, as it is based on public observations which
are not themselves unlawful.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Palby Lingerie, Inc.; Argus Lingerie Corp.;
Elmont Underwear Corporation; and Richwear
Sportswear, Inc., Elmont, Long Island, and Brook-
lyn, New York, their officers, agents, successors,
and assigns, shall take the action set forth in the
said recommended Order, as so modified:
1. Delete paragraph (c).
2. Delete "laying off" from paragraph I(e) of the
Administrative Law Judge's recommended Order.
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT threaten employees with loss
of jobs and closure of our garment manufac-
turing business if they select Local 57, Nassau-
Suffolk District Council, International Ladies
Garment Workers Union, AFL-CIO, to repre-
sent them.
WE WILL NOT coercively interrogate any
employee concerning his or her union activi-
ties or sympathies, or their interest or other
employees' interest in the above Union or any
other labor organization.
WE WILL NOT create a rule or try to enforce
a rule prohibiting solicitation by employees for
union membership or distribution by our em-
ployees of union literature during nonwork
time.
WE WILL NOT discharge or otherwise dis-
criminate against any employee because of that
employee's union sympathies.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL. offer Rosetta Lyons and Sharon
Hunter immediate and full reinstatement to
their former jobs or if those jobs no longer
exist, to substantially equivalent positions,
without prejudice to their seniority or other
rights and privileges previously enjoyed and
WE WILL make them whole for any loss of
earnings, plus interest.
WE WILL, upon request, recognize and bar-
gain with Local 57, Nassau-Suffolk District
Council, International Ladies Garment Work-
ers Union, AFL-CIO, as the exclusive repre-
sentative of our employees in a unit of all pro-
duction, maintenance, shipping and receiving
employees, employed at our Elmont plant and
our Brooklyn plant combined, excluding all
other employees, guards, and supervisors as
defined in the Act, with respect to wages,
hours, and other terms and conditions of em-
ployment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment.
PALBY LINGERIE, INC., ARGUS LIN-
GERIE CORP.; EI.MONT UNDERWEAR
CORPORATION AND RICHWEAR
SPORTSWEAR, INC.
DECISION
STATEMENT OF THE CASE
Julius COHN, Administrative Law Judge: This case
was heard at Brooklyn, New York, on August 8, 9, and
10, and September 17 and 19, 1979. Upon charges filed in
Cases 29-CA-7084 and 29-CA-7139 by Local 57,
Nassau-Suffolk District Council, International Ladies
Garment Workers Union AFL-CIO, herein called the
Union, the Regional Director for Region 29 issued an
order consolidating cases and complaint on April 30,
1979, alleging that Palby Lingerie, Inc., Argus Lingerie
Corp., Elmont Underwear Corporation, and Richwear
Sportswear, Inc., herein respectively called Palby,
Argus, Elmont, and Richwear, and collectively called
Respondent, violated Section 8(a)(l), (3), and (5) of the
Act. Thereafter upon charges filed in Cases 29-CA-7163
and 29-CA-7219, the Regional Director issued an Order
consolidating those cases and a complaint alleging that
Respondent further violated Section 8(a)(l) and (3) of
177
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act. By order dated July 3, 1979, the Regional Di-
rector consolidated all of the above cases for hearing.
Respondent filed answers denying the commission of
unfair labor practices.
The principal issues are whether Respondent's four
corporations constitute a single employer operating an
integrated business; whether Respondent by its officers
and agents, engaged in various violations of Section
8(a)(1) of the Act; whether Respondent unlawfully laid
off an employee, and thereafter discharged that employ-
ee, and discharged another employee, all in violation of
Section 8(a)(3) of the Act; and whether Respondent vio-
lated Section 8(a)(5) of the Act by its refusal to recog-
nize and bargain with the Union, upon demand, as the
majority representative of its employees. In this latter
connection, the issues relate to whether a two-plant unit
is appropriate, and whether Respondent's violations, if
any of Section 8(a)(1) and (3) of the Act are of sufficient
severity and pervasiveness to warrant issuance of a bar-
gaining order.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally and to file briefs. All
parties have submitted briefs, which have been carefully
considered.
Upon the entire record of this case and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. JURISDICTION
Palby, Elmont, and Richwear are all New York corpo-
rations with principal places of business in one building
in Elmont, Long Island, New York. Argus is also a New
York corporation, but it has its principal office and place
of business in Brooklyn, New York. Palby annually ships
merchandise valued at more than $50,000 from the
Elmont, Long Island, plant to States outside the State of
New York. Elmont, Richwear, and Argus are all en-
gaged as contractors for Palby and they in turn ship
merchandise to Palby valued in excess of $50,000 annual-
ly. The complaint alleges and Respondent admits that the
four corporations, individually, are engaged in commerce
within the meaning of Section 2(6) and (7) of the Act,
and I so find.
However, Respondent denies that the four corpora-
tions described above constitute a single or joint employ-
er engaged in a common integrated enterprise. The four
corporations are all owned, operated, and controlled by
the Israel family. Isaac Israel is president of all four, sole
stockholder of Palby and one-third stockholder of
Elmont, and director of Palby, Elmont, and Argus. His
wife, Pauline, is one-third stockholder of Elmont and
two-thirds stockholder of Argus, secretary-treasurer of
Elmont, Argus, and Richwear, and director of Elmont
and Argus. Marcel Israel, Isaac's brother, is a one-third
shareholder of both Elmont and Argus, as well as vice
president and director of both those corporations. In ad-
dition, he serves as a salesman with Palby. The directors
and shareholders of Richwear are the three sons of Isaac
and Pauline: Richard (who also works with Palby and
Elmont), Saul, and Arthur.
Palby has no manufacturing employees, and is the sell-
ing arm of the enterprise. In addition, Palby also pur-
chases piece goods and other material. In the same build-
ing at Elmont, Long Island, with Palby are Richwear
and Elmont. Richwear performs the function of cutting
the piece goods as well as making the trims for the gar-
ments, which consist of women's nightgowns and sleep-
wear. The sewing is done by Elmont and by Argus in
Brooklyn. Finishing is done by both Elmont and Argus,
but some of the garments sewn by Argus are finished by
Elmont. Shipping of these garments is usually done by
Palby through the utilization of Richwear employees,
principally Richard Israel, who is assisted by Richwear
and perhaps Elmont employees as needed.
It is clear that the Israels supervise the entire operation
on a day-to-day basis. Pauline runs the production at
Elmont, Richard and Marcel run the production at Rich-
wear, and Isaac is in overall control and in charge of the
entire operation. At Argus in Brooklyn there is a super-
visor, Mary Peri, who runs the shop there. However,
Isaac visits that plant several times a week and there is
constant telephone communication. It is equally clear
from this record that Isaac controls and formulates labor
relations policies for all of the corporations involved.
As the four corporations are completely controlled by
one family, manufacture a product in an integrated fash-
ion whereby three corporations are in effect contractors
of the fourth which is the selling arm, and the family,
particularly Isaac, controls the labor relations of the four
companies, I find them to be a single employer within
the meaning of the Act.'
II. THE LABOR ORGANIZATION INVOL.VED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES ALLEGED
A. The Alleged 8(a)(l) Violations
The Union commenced its organizational campaign on
January 29, 1979, when organizer Ann Jackson visited
the homes of Elmont employees seeking authorization
cards. Shortly thereafter, another organizer, Michael
Grimaldi, did the same thing with respect to the Argus
employees in Brooklyn. Within less than 3 weeks the
Union succeeded in obtaining signed authorization cards
from a majority of the employees employed in Long
Island as well as half of those at Argus in Brooklyn. Re-
spondent was no stranger to union organization cam-
paigns, having succeeded on two prior occasions in
warding off the Union, the first having occurred as far
back as 1964.
i Radio and Television Broadcast Technicians Local Union 1264 v.
Broadcast Service of Mobile, Inc., 380 U S. 255 (1965); Sloll Industrres, Inc.,
223 NLRB 51 (1976).
178
PALBY LINGERIE, INC.
1. The Interrogations
On November 29, 1978, Rosetta Lyons applied for em-
ployment as a floorgirl and was interviewed by Pauline
Israel. In the course of that interview, Pauline stated that
she needed someone and asked Lyons whether she be-
longed to a union and what local. Lyons shook her head
negatively and was then employed as a floorgirl. Al-
though Pauline Israel testified at the hearing, she did not
refer to or deny this occurrence.
In the period immediately following the commence-
ment of the union campaign, Pauline interrogated a
number of employees. Teresa Proce testified that within
a couple of weeks after signing an authorization card,
she and Margaret Andriano went to the bathroom and
met Pauline who asked them if they signed cards for the
Union, to which both replied they had. Lydia Pagan, a
floor girl at Elmont, said that one day, while sitting at
lunch, Pauline asked her if she had signed a card. Lyons
testified that on February 8, she heard Pauline question
an employee, Carmella Fiuregge, whether any union
people had come to visit her and Carmella replied that
they had and wondered how the Union found her house.
Pauline said she wondered who called in the Union.
Lyons further stated that on the same day Pauline asked
Theresa Liberti if any union people had come to her
house and if she had signed a card. Theresa did not
reply. Pauline then told her if she signed a card she
should ask for it back. In her own testimony, Pauline ad-
mitted asking Liberti if the Union had visited her house,
as well as asking Josephine Montalbano whether the
Union had visited her house too.
On February 12, Pauline asked Rosetta Lyons if she
had ever worked for a Union. She told Lyons that the
Union was coming around and pressuring girls at their
homes and signing them to cards. Pauline said that if the
Union does come in then employees would only do one
job, and when that was finished they would have to go
home.
On February 12, Pauline gave a speech to the employ-
ees which will be hereinafter discussed, but 2 days later
Lyons heard Lisa Brigandi ask Pauline what she had said
in her speech because she had been out that day. Pauline
replied by asking Lisa whether she signed a card and
Lisa said no. Pauline professed not to believe her and
Lisa said she swears she did not sign. Pauline then told
her that she did not want a union and all the people that
signed cards were ignorant and could get them back.
Pauline herself testified to having been informed by an
employee, Elda Spielvogel, that the Union had been to
her house and seemed to know everything, including
Lyons' rate of pay. She then called Lyons to the office
and had Spielvogel repeat what she had just said. Pauline
asked Lyons how the Union knew her rate of pay and
Lyons replied that she did not know as she had only told
this to one employee who had asked her.
Sharon Hunter, one of the alleged discriminatees
herein, was employed early in February. Within the next
day, she was approached by Isaac Israel who asked her
whether she was with a Union, and she replied that she
was not. Isaac, who was called as a witness by the Gen-
eral Counsel at the outset, was not recalled by Respond-
ent and did not testify with respect to this and other inci-
dents involving his conduct.
In the meantime the Argus employees in the Brooklyn
plant were subjected to similar interrogations. Isaac
Israel himself, after a telephone conversation with Mary
Peri, the Brooklyn supervisor, called Miguel Gonzales to
the phone and asked him what he was doing wearing
union buttons. Gonzales said that he was just fooling
around and Isaac said that this is nothing to fool around
about. In addition, Mary Peri admitted to the union or-
ganizers, Michael Grimaldi and Gasper Sciacca, who had
visited Argus on February 21 to demand recognition,
that she had spoken to all the employees and they told
her that nobody wanted the Union and that nobody
signed a card. Admina Perez, an employee at Argus, tes-
tified that in February Mary Peri asked her and Gon-
zales, Perez' son, whether they had signed union cards.
She also asked if the Union had come to her house. Gon-
zales testified to the same effect. Peri did not testify at
the hearing.
Described above are numerous occasions on which
Pauline, Isaac, and Peri singled out employees and inter-
rogated them concerning their signing of cards and union
activities. The Board has held that attempts by employ-
ers to ascertain employee views and sympathies regard-
ing unionism generally tend to cause fear and reprisal in
the mind of the employee if he replies in favor of union-
ism and, therefore, tends to impinge on Section 7 rights.
Big Three Industries, Inc., 192 NLRB 370 (1971). The in-
terrogations herein cannot be considered isolated as they
were directed against many of the employees in the bar-
gaining unit. Moreover, the interrogations were made
without assurance against reprisals. I find therefore that
the interrogations of employees conducted by the Israels
and Peri concerning their union activities were coercive
and violative of Section 8(a)(l) of the Act. Lorraine Ur-
bauer d/b/a Kimmel's Shop Rite, 213 NLRB 440 (1974).
2. Threats
Admina Perez testified that one day in February,
during one of his visits to the Brooklyn plant, Isaac
Israel said he did not want the Union and he would close
the factory. Perez testified credibly and, as indicated
above, Israel did not testify at all as to the alleged unfair
labor practices. In addition, on another occasion in
Brooklyn, Isaac told Gonzales that all the Union wanted
was to take $10 a month from the workers, and before
he got the Union, he would prefer to close up the shop.
In February, prior to the Union's demand for recogni-
tion, Pauline Israel spoke to the employees of Elmont
during the lunch break. According to Theresa Murena,
Pauline told the employees that the Union was trying to
get in and that she would not have it. She said that the
Union would put them out of business. In the course of
her speech, Murena said that Pauline told the employees
that those who want to stay, can stay, but those who did
not, could leave. Employee Proce said Pauline told them
that she was not going to have the Union because they
had worked so many years without it. She said that if
they wanted it, it was up to them to find another job. On
cross-examination, Proce reiterated that Pauline said they
179
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were free to quit and find another job or else to stay.
She insisted that Pauline said that they are not forcing
those who want a union to stay. Lydia Pagan, an em-
ployee since 1973, and still employed, testified that Pau-
line told the assembled employees she did not want a
union in the shop, and if it did come in, Ike (Isaac) was
going to close the shop.
Rosetta Lyons also testified concerning Pauline's
speech. She stated Pauline told the employees she heard
the Union was going around and she did not want it and
was not going to negotiate with the Union. Pauline said
the Union had tried 15 years ago and lost and there was
a strike. She went on to say that if a Union came in there
would be a strike and people would be out of work. Pau-
line said that anybody who was not happy was free to
go.
Pauline admitted making the speech and testified at
some length about it. She said she spoke to almost all of
the employees who were having lunch one day, about 1
week before the Union made its demand. She told them
the Union was trying to organize and they may be vis-
ited at their homes. She said the Union tried 15 years
ago and there was picketing, but that her girls knew the
Union made empty promises. She contends she told them
there had been an election 15 years ago and what it was
like. Pauline said that she did not want a union shop, that
there were 250,000 union members unemployed in New
York, that plants who have unions are forced to close,
and that if there are strikes, there is loss of pay. She also
told them she would not negotiate with the Union unless
they won an election and they could vote either yes or
no. She mentioned that many union plants close and
move to the south.
It is further alleged that Isaac Israel made threats to
employees at Elmont. Thus, employee Murena said Isaac
spoke one day during lunch, and told them a union
would put them out of business, and if the Union came
in, he would close the shop. Pagan also testified that
Isaac spoke to a number of employees in February to the
effect that he did not want the Union, and it was not
going to get him. Of course, this testimony is uncontra-
dicted.
While there are apparently a number of threats con-
tained in the speech made by Pauline, her testimony re-
flects an attempt to soften the impact by claiming to
have referred to an election and election procedures.
None of the employees who were asked had any recol-
lection of the use of the word "election" by Pauline
while she talked to the employees on that particular day.
Moreover, Pauline admitted that Respondent did not at-
tempt in any manner to utilize the election procedures
available under the Act. And, curiously, a leaflet distrib-
uted by Respondent to the employees with a paycheck,
with respect to the union campaign, makes no mention of
elections. In the circumstances, I cannot credit Pauline
Israel insofar as her testimony states that she discussed
elections with the employees. I found her to be a less
than candid and sometimes evasive witness, not only
with regard to this particular matter but concerning
other aspects to which she testified. Her lack of candor
was exhibited in her testimony concerning the corporate
setup when she denied having almost any knowledge of
Argus while at the same time she was an officer of that
corporation. Finally, no employee or any other witness
testified in corroboration of Pauline's version of her
speech.
I find, therefore, that Respondent violated Section
8(a)(1) of the Act through the speech of Pauline Israel in
a number of ways. Most serious, of course, are the
threats of plant closure and its consequent loss of jobs.
Such a threat is not only contained in the speech of Pau-
line described above but also in the conduct of Isaac
Israel both at Elmont and at Argus.2 A further violation
is derived from Pauline telling the employees that if they
didn't like it, they could leave, obviously referring to
keeping the Union out of the plant.3 Pauline's admitted
reference to strikes in the event of the Union coming in
with a consequence of loss of pay to employees is a pre-
diction also violative of Section 8(a)(l).4 Pauline also
stated to the employees that she would never negotiate
with the Union if it came into the plant and this is a vio-
lation of Section 8(a)(1) as it is bound to discourage em-
ployees from their activity because they would feel there
would be no use in having the Union.5
3. Rules against distribution and solicitation
There is no contention by Respondent that it ever
maintained or enforced rules in its plant against solicita-
tion or distribution of any kind. Pauline Israel admitted
and employees testified that employees themselves were
freely permitted to sell one another candies and cookies
in behalf of their children and schools, and that commer-
cial solicitors were permitted in the plant to sell items
such as toasters. With respect to the Argus plant in
Brooklyn, the uncontradicted testimony is that just prior
to the events described herein, a person came into the
plant and solicited employees for the purchase of stock-
ings. However, immediately after the Union made its
demand for recognition, Respondent attempted to stop
employee solicitation or distribution on behalf of the or-
ganizational campaign.
On February 21, during lunch, the union representa-
tives made their demand for recognition. Rosetta Lyons,
who had accompanied them, then went to talk to the
employees. Pauline Israel attempted to stop her and told
her that she could not talk to the girls. Lyons stated that
she was going to explain to the employees what had hap-
pened and Pauline insisted that she could not. Lyons
proceeded to do it anyway and in the meantime Pic-
cione, the union representative, explained to Pauline that
Lyons had a perfect right to do this as it was during
lunchtime. Lyons further testified, without contradiction,
that a few days later, during lunchtime, she was handing
out leaflets and Pauline told her to stop. In addition,
Lyons was speaking to the girls, and Isaac Israel, who
was present, told her to shut up and that he did not want
her talking in the shop. Finally, on March 27, Lyons was
2 Gissel Packing Co., Inc., 395 U.S. 575 (1969).
s Aero Corporation, 237 NLRB 455 (1978).
Richard Tischler, et al., a limited Partnership d/b/a Devon Gables
Nursing Home, 237 NLRB 775, (1978).
6 Multi-National Food Service, Division of Schwan's Sales Enterprises
Inc., 238 NLRB 1031 (1978).
180
PALBY LINGERIE, INC.
distributing newspapers during lunchtime when Pauline
attempted to stop her, an event which ultimately led to
her discharge.
At Argus, in Brooklyn, Miguel Gonzales tried one day
in March to distribute, during lunchtime, some union
newspapers to the employees. Mary Peri, the supervisor,
directed him to stop and wait until after 4:30 to give out
the papers. This again is uncontradicted.
Since admittedly Respondent had no rules regarding
solicitation and distribution, the conduct of Pauline and
Isaac Israel in Elmont, and Mary Peri at Argus, was tan-
tamount to promulgating a rule against such activities on
the spot. As the incidents described above all occurred
during lunchtime, such rule is overly broad as Respond-
ent would apply it to nonworktime. By promulgating
and attempting to enforce such a rule, Respondent vio-
lated Section 8(aX)(1) of the Act.6
4. Surveillance
Union Organizers Jackson and Grimaldi stated that on
February 27, a morning on which the Union was "dem-
onstrating" in front of the Elmont plant, they were ob-
served from the windows and doorway of the plant,
while talking to employees, by members of the Israel
family. Thus Jackson said that while she was talking to
Maria Ferrante, an employee, Richard, Marcel, Pauline,
and Ike Israel were watching from office windows. Gri-
maldi similarly testified that as he was speaking with
Ferrante and Lyons he recognized Richard, Isaac, and
Marcel Israel standing near the office windows and ob-
serving. Grimaldi also stated he spoke to Ferrante for
about 4 minutes and, as she turned to go into the shop,
he saw Richard Israel standing on the steps, watching
them.
There are other incidents which give rise to an impres-
sion that Respondent was keeping the activities of their
employees under surveillance. Pauline Israel told Lyons
in effect that the Union knew all about Lyons, what her
job was, and how much money she made. She confirmed
this by confronting Lyons and Spielvogel, who repeated
to Lyons what she learned about her from the Union.
Particularly with regard to her rate of pay, Pauline di-
rected Lyons not to give this information to other em-
ployees. As a result of this confrontation, Spielvogel said
she would not talk to anybody in the factory again about
these matters.
During the course of her speech to the employees,
Pauline stated that "[s]he heard the Union was going to
the people in the shop" and that "[t]here's somebody in
this shop giving out information," according to the un-
contradicted testimony of Lyons.
With respect to the Argus plant, Isaac Israel sum-
moned Gonzales to the telephone, stating that he heard
he was wearing a union button; and on another occasion
Isaac told Gonzales that his "Italian friend" from the
Union was outside the shop, presumably referring to Gri-
maldi.
6 The Times Publishing Company, 231 NLRB 207 (1977); Daylin Inc..
Discount Division d/b/o Miller's Discount Dept. Stores, 198 NLRB 281
(1972).
I find, on the basis of the incidents described above,
that Respondent engaged in surveillance of some of its
employees, and in addition created the impression that
their activities were being kept under surveillance. Such
conduct is in violation of Section 8(a)(1) of the Act.7
B. The Alleged 8(a)(3) Violations
1. Rosetta Lyons
Lyons commenced work on November 27, 1978, as a
floor girl. In that capacity she did a variety of duties at
various parts of the second floor of the plant. Thus, she
did some hanging work, packing, separating, cleaning,
and folding. On February 21, 1979, Lyons came into the
plant with two union organizers who proceeded to make
their demand for recognition of Pauline Israel. At that
time Lyons was wearing for the first time a union
button. According to organizer Piccione, as Pauline and
Richard Israel were escorting the union organizers to
their office, Pauline told Richard, "I should never have
hired Rosetta." As narrated above, Rosetta commenced
talking to the employees after the demand letter was
read to Pauline who then attempted to prevent her from
doing this. The next day, February 22, Lyons, who nor-
mally had been supervised by Pauline, was directed by
Isaac to do only one job, that of hanging panties at one
work location. Lyons testified that during the rest of the
time she was employed, she performed this job by almost
constantly standing in one spot. Lyons further stated that
in the ensuing period Pauline primarily stayed at a ma-
chine, while Isaac took over the floor supervision and
gave the orders. Lyons testified without contradiction
that Isaac watched her constantly and kept telling her
she was doing things wrong. She had never before been
subjected to this type of observation and criticism.
There followed a number of incidents described above,
in connection with Respondent's violation of Section
8(a)(1), during which Lyons had been distributing leaflets
and newspapers during lunch period in spite of attempts
by Pauline or Isaac to stop her.
The activities of Lyons climaxed on March 27, when
she returned from lunch and entered the plant, still
during the lunch period, and attempted to distribute
some union newspapers printed in Italian to the employ-
ees. All parties agreed that the attempt by Pauline to
stop this resulted in a shouting match involving Lyons,
Pauline, and Richard Israel. Lyons testified that Pauline
said she did not want her to give them out in the shop
and Lyons replied she should leave her alone because
she would give them out if she wanted to, that she had
done this before. Pauline asked if she wanted to get fired,
but Lyons ignored her and gave out the newspapers.
Lyons stated that Richard came over hollering for her to
stop giving those out, that he did not want any soliciting
in the shop, and that it was private property. They then
told her she was fired. She said she had a right to orga-
nize and proceeded to give out papers and they
screamed at her to get out of the shop and told her she
was fired.
I Rockingham Sleepwear, Inc., 188 NLRB 698 (1971).
181
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In her testimony, Pauline insisted she was telling
Lyons she did not want her to distribute the papers "on
my time." However, Pauline admitted that the bell to
signal the end of the lunch period had not yet rung. As
for Richard, he claimed he had run over to prevent
Lyons from shouting at his mother. Richard did admit,
however, that he was upset and was screaming along
with the two women, and he did twice say he would fire
her if she kept up.
Respondent contends and Richard testified that when
Lyons heard the threats that she would be fired if she
continued, she said "so I'm fired" and then walked out.
Lyons' version is corroborated by two employee wit-
nesses. Murena stated she saw Lyons giving out pam-
phlets and heard Richard saying they were not going to
have these pamplets passed around, and then heard, in
the midst of screaming, Richard say "you're fired."
Pagan also testified that Lyons brought some papers into
the shop during lunchtime and she heard Pauline tell her
not to give the papers out in the shop. Pagan said she
then heard both Pauline and Richard telling Lyons she
was fired. Although it appeared that Pauline, after this
incident, through her bookkeeper, obtained statements
from four employees concerning it, no one was produced
or testified on behalf of Respondent.
I do not credit Richard and Pauline Israel to the effect
that Rosetta Lyons quit rather than was fired by them,
not only for the general reasons of credibility indicated
above, but also for the following specific reasons relating
to the termination. First, Pauline admitted that this final
incident with Lyons occurred during lunchtime and she
never before had stopped Lyons from distributing mate-
rials at that time. This casts doubt on her testimony that
she insisted to Lyons that no distributions be made on
"my time"; i.e., company time. I also credit the employ-
ee witnesses who stated that Richard and Pauline said to
Lyons that she was fired, rather than the statement by
Richard that he said "I will fire you."
Finally, Respondent would find Lyons incredible on
the ground that she was admittedly a paid staff worker
of the Union, who obtained employment in order to
assist in organization. However, the Board has held that
this condition does not denigrate from an employee's
status as such, and she is entitled to the protection of
Section 8(a)(3).8 Even if Lyons were deemed to be a
temporary employee, which is doubtful in view of her
employment at Respondent for about 5 months, she
would still be covered by the Act as an "employee."
I find in all the circumstances, particularly in view of
the extensive violations of Section 8(a)(1) by Respond-
ent, the fact that Lyons, herself, was subjected to inter-
rogation and surveillance, and, as she was clearly the
leading union adherent in the plant, wore union buttons,
and appeared with union organizers, that she was dis-
charged by Respondent because of her union activities,
and, by such conduct, Respondent violated Section
8(a)(3) of the Act.
s Oak Apparel. Inc., 218 NLRB 701 (1975).
2. Sharon Hunter
Hunter was referred to Respondent for employment
from the unemployment insurance division as a merrow
operator. She was interviewed by Richard Israel who
told her he had no need for merrow operators but that
he had a lot of work downstairs (Richwear) and could
use her on the spooling machine or the other automatic
machines operated there. She reported on February 8, a
Thursday, and remained through February 9. During
these 2 days, Hunter worked at the spooling machine
and at one point inquired of Richard as to whether she
could work sitting down. Richard left and returned with
Isaac who asked if she wanted a chair. He said that this
work was not normally done sitting down, but in any
case he gave her a chair. At the end of the day on
Friday, she told Richard she preferred to work as a
merrow operator and therefore would noftcre to return
to the same job she had been doing. Richard informed
her he had a great deal of work on these automatic ma-
chines downstairs but not sufficient work upstairs and
asked if she would help him out by coming in on
Monday to which she said she would. During the course
of these first 2 days, it will be recalled that Isaac had
asked her whether she was a union member and she had
replied no. That night, February 9, Hunter signed an au-
thorization card for the Union. On Monday morning, she
was still at home at approximately 8:05 a.m. when she re-
ceived a call from Richard who told her not to bother
coming in. No other explanation was given.
By letter dated April 16, Richard Israel wrote her re-
questing that she return from "layoff" on April 23.
Hunter reported for work on that day and was initially
assigned to the same work on the automatic machines as
she had performed in February. When she came in on
April 23, Hunter wore a union button. About the middle
of that week, Richard brought downstairs some boxes of
panties and showed her how to hang them. She did this
while sitting down for a day or two and Richard said
nothing about her sitting. Richard testified, as did
Hunter, that the work of hanging panties previously had
not been done downstairs but was performed only by the
employees upstairs and indeed it necessitated bringing
down boxes of panties in order to have that work done
by Hunter. After a day or so of hanging panties while
sitting, Richard came over and told her that she had to
stand and took away her chair. After lunch she asked
him why she could not sit and he said that that work is
done standing. She reminded him that she had sat before
and asked if the union button had anything to do with
his attitude and he said no.
In the afternoon, Richard and Isaac came in and saw
her sitting again and said nothing. She said she alternated
standing and sitting but then suddenly the chair was
taken away by Isaac who said she could not sit down.
Hunter continued to stand for several days while work-
ing on the automatic machines. On May , she was again
given the job of hanging panties and once again sat
down. This time Isaac came over and told her she was
hanging the panties incorrectly. He then proceeded to
show her another method of hanging panties, although
she had been shown how to do this job by Richard and
182
PALBY LINGERIE, INC.
no one had complained to her about the way she was
doing it. After this demonstration as to how to hang the
panties, Isaac left but returned later and again told her
that she did not have to sit down while doing the work
of hanging panties. Hunter protested that she had sat
while doing it the day before but Isaac persisted and
took her chair away. Isaac then asked why she was stay-
ing if she did not like the work and said he was not
going to fire her. He repeated this several times and, on
each occasion, requested the cutter, Iraggi, to listen.
After hearing this a number of times, Hunter finally told
Isaac that he had just fired her and she punched her card
and left.
There is no question that the employees who hung
panties upstairs, which was the only place it was done
prior to the assignment to Hunter, did their work while
standing. But the folding tables from which they worked
while hanging panties were high and were not conducive
for someone to sit and work. On the other hand, the
table, from which Hunter was working downstairs, was
low and one could do the work while sitting.
The General Counsel has contended that Respondent
violated Section 8(aX3) of the Act by first "laying off'
Hunter on the morning of February 12, and again on
May 1, when she was allegedly constructively dis-
charged. Respondent offered no explanation as to the so-
called layoff on February 12. When Richard called
Hunter, he merely said she did not have to come in and
gave no reason for stopping her coming to work. At the
hearing, Respondent submitted evidence to reflect that
Hunter had been late on 1 of 2 days she had worked the
previous week and of course she would have been late
on Monday since Richard was able to reach her at home
at am. However, at no other point did Respondent raise
the issue of lateness as a reason for this so-called layoff.
Moreover, it is also clear that Respondent, according to
Richard, had plenty of work for her to do downstairs.
Significantly, Hunter had signed a union card on Febru-
ary 9, Friday night, and it appears by that time the
Union had amassed more than 15 authorization cards
from Respondent's employees. Moreover, Hunter had al-
ready been interrogated by Isaac as to whether she be-
longed to a union, and Respondent, in view of its wide-
spread interrogation in the previous week, was certainly
aware of the union activity going around. Indeed, Pau-
line made her speech to the employees at lunchtime of
the day that Richard called Hunter and told her not to
come in. I find, in view of the unfair labor practices al-
ready committed by Respondent at the time of Hunter's
unexplained layoff of February 12, Respondent's conduct
was discriminatorily motivated and therefore in violation
of Section 8(aX3) of the Act.
By the time she was recalled, Hunter was an open
union supporter as she reported to work wearing the
union button. The events of May 1 are essentially uncon-
tradicted as Isaac did not testify and Richard did not
controvert the facts as set forth above. The arguments
concerning the chair and hanging panties or working the
automatic machines while sitting seem essentially con-
trived especially since she was permitted to sit at the
outset. Hunter was working by herself under different
conditions than the other girls who hung panties upstairs.
It is also peculiar that Respondent would go to the trou-
ble of carrying boxes of panties downstairs when it cus-
tomarily used people working upstairs to do that job as
they were free. Isaac's goading of Hunter on that last
day urging her to leave, telling her he would not fire
her, admonishing the cutter to listen to what was said, so
that he would have a witness to whatever was going to
happen, was undoubtedly a form of harassment that led
Hunter to quit. It must also be pointed out that, by May
1, Hunter had already been named in the unfair labor
practice charge filed initiating this proceeding.
I find, therefore, that Respondent created the condi-
tions which forced Hunter to quit her employment or be
subjected to continued harassment. In view of Respond-
ent's demonstrated animus toward the Union and its
other unfair labor practices, I further find that Hunter
was constructively discharged because of her support for
the Union and thereby Respondent violated Section
8(a)(3) and (1) of the Act.9
C. The Alleged 8(a)(5) Violation
1. The appropriate unit
The parties are agreed as to the composition of the
unit or units to be found appropriate. The sole issue is
whether a single overall bargaining unit of the two
plants, in Long Island and Brooklyn, is appropriate or
whether the only appropriate units are the individual
plants. The General Counsel is seeking an overall two-
plant unit while Respondent contends that only two sep-
arate units are appropriate. The general rule of course is
that a bargaining unit need ony be appropriate; it need
not be the most appropriate or the only appropriate.
In reaching a determination, some of the factors de-
scribed above in connection with the discussion of the
issue of whether Respondent's corporations constitute a
single integrated employer, are the same. Thus, the prod-
ucts manufactured in both plants are the same. Argus in
Brooklyn, and Elmont in Long Island, both do sewing,
and it is these entities who employ the bulk of Respond-
ent's employees. Management of both are the same, and,
indeed, this being a family enterprise, members of the
family closely supervise the employees in both locations
and it is clear that Isaac controls and formulates labor
policy. While it is true that the immediate supervisor at
Argus is Mary Peri, it is equally apparent from discus-
sions of the events described above that Isaac Israel visits
the Brooklyn plant frequently and Peri makes no move
without consulting him either in person or by telephone.
The flow of work from Richwear, the entity that does
the cutting, is determined by either Marcel or Richard
Israel or both so that the amount of work is divided by
them between Elmont and Argus.
Respondent urges that a single unit of both plants is
not appropriate because there is no community of inter-
est between the employees in Brooklyn and in Long
Island. While it is true that there is no significant inter-
change of employees-only one employee, Miguel Gon-
zales, has been employed at both locations and the me-
9 J. P. Stevens and Company, Inc. v. N.LR.B., 461 F.2d 490 (4th Cir.
1972); Liberty Markers, Inc., 236 NLRB 1486 (1978).
183
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chanic, Amadeo, who works in Long Island, repairs and
maintains the machinery in Brooklyn as well-that is not
the only criterion for community of interest. However, it
may be noted that in the case of Gonzales, it was Isaac
Israel who determined at the beginning of each period of
his segmented employment, where he should work. Nev-
ertheless, the community of interest which the two
groups share consists of many other factors. Thus, they
do the same work on the same products, they have the
same wage rates, the same vacations, workdays, and
hours with one slight exception at Long Island, the same
benefits or lack thereof, and most important the same
management which derives principally from Isaac Israel.
The entire operation with respect to bookkeeping and
accounting is conducted through one bookkeeper located
in Long Island, and one accountant serves both areas
and all corporations with respect to tax returns and the
like. The distance between the plants, only 15 to 20
miles, which can be driven in 30 minutes, is not such that
would detract from the community of interest.' Finally,
the Board has found in similar situations that an overall
unit of two facilities which are functionally integrated is
appropriate where a labor organization seeks to represent
the employees in such overall unit.11
I find, therefore, the unit sought by the General Coun-
sel and the Charging Party of the employees at both the
Long Island and Brooklyn locations to be appropriate.
Accordingly, the unit found appropriate herein, is as fol-
lows:
All production, maintenance, shipping and receiving
employees of Respondent employed at its Elmont,
Long Island plant and its Brooklyn (Argus) plant
combined, excluding all other employees, guards
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
2. The majority status
The parties are agreed that there are 50 employees in
the overall two-plant unit. Of these, the Union submitted
27 signed authorization cards. Respondent had objected
to the receipt in evidence of the card of Josephine Mon-
talbano on the ground that the card is dated February 5,
1979, whereas the notes of the Union organizer show a
date of March 5, 1979. The organizer, Jackson, testified
credibly that her writing of March 5, 1979, on her notes
was in the nature of a clerical error. As the card itself is
plainly marked February 5, 1979, a date on which orga-
nizational activities were conducted, and there is no
challenge to the authenticity of Montalbano's signature, I
affirm my ruling at the hearing that the card should be
received in evidence and counted. Respondent also ob-
jected to the admission of the cards of Admina Perez
and Anna Sanchez seemingly on the ground that the two
cards contain no writing in the handwriting of Michael
Grimaldi, the union organizer. There is no requirement
that the information on the cards be written by any par-
'o Caron International, Inc., 222 NLRB 508 (1976).
" Family Doctor Medical Group, a Professional Corporation, 226 NLRB
118 (1976).
ticular individual so long as the card is dated and proper-
ly signed by the employee. There is no evidence that the
signatures on the two cards are other than authentic. Ac-
cordingly, I shall count these two cards with regard to
the majority status of the Union.
I find therefore, that the Union, having submitted 27
cards, signed by employees of Respondent at both plants,
has been designated as representative of a majority of the
employees in the unit found appropriate herein as their
collective-bargaining representative.
3. The bargaining obligation
There remains the issue as to whether in the circum-
stances the Union is entitled to a bargaining order. In a
decision adopted by the Board, Administrative Law
Judge Taplitz stated the law as follows:' 2
In N.L.R.B. v. Gissel Packing Co., [395 U.S. 575
(1969)1 the Supreme Court held that a bargaining
order would be appropriate in two situations. The
first is in "exceptional" cases marked by "outra-
geous" and "pervasive" unfair labor practices of
"such a nature that the coercive effects cannot be
eliminated by the application of traditional reme-
dies, with the result that a fair and reliable election
cannot be had." The second is "in less extraordinary
cases marked by less pervasive practices which
nonetheless still have the tendency to undermine
majority strength and impede election processes."
The court also held (at 600): "an employer can
insist on a secret ballot election, unless, in the
words of the Board, he engages 'in contemporane-
ous unfair labor practices likely to destroy the
Union's majority and seriously impede the elec-
tion."' In Ship Shape Maintenance Co., Inc., 189
NLRB 395 (1971), the Board expressed the test to
be applied in terms of whether the lingering effects
of the unfair labor practices rendered uncertain the
probability that traditional remedies could ensure a
fair election, and whether the Union's majority card
designations obtained before the unfair labor prac-
tices provided a more reliable test of the employees'
desires and better protected employee rights than
would an election. As stated in Joseph J. Lachniet,
d/b/a Honda of Haslett, 201 NLRB 855 (1973),
enfd. 490 F.2d 1382 (6th Cir. 1974), where a coer-
cive atmosphere is created by the employer which
conventional Board remedies may not adequately
dissipate so that a fair election can be held with rea-
sonable certainty, a bargaining order is warranted.
See also Petrolane Alaska Gas Service, Inc., 205
NLRB 68 (1973).
On February 21, 1979, when the Union concededly de-
manded recognition, it represented a majority of the em-
ployees in the appropriate bargaining unit. By this date,
Respondent had commenced its campaign of coercive in-
terrogation, surveillance, and threats of plant closing.
The importance of this latter type of violation of Section
8(a)(1) cannot be overstated, particularly as in the instant
12 Boston Pet Supply, Inc., 227 NLRB 1891, 1900 (1977).
184
PALBY LINGERIE, INC.
case, where the threats of closure were made in speeches
to large groups of employees. References to closing the
plant contain a threat of serious consequences for all em-
ployees. Such threats clearly have the tendency to
"impede the election process" and undermine the condi-
tions for a fair election. Gissel, supra at 611.
While the violations found of Section 8(aX1) of the
Act are serious and pervasive enough to warrant a bar-
gaining order, the case is further bolstered by the viola-
tions of Section 8(aX3) with respect to the discharges of
Lyon and Hunter. Particularly so is the case of Lyons
who was the forward, outspoken, and leading union ad-
herent in the plant and was discharged publicly at the
conclusion of a shouting match, in full view of many em-
ployees. Of course, discharge of prounion employees will
undermine a union's majority or impede the election
process.
In sum, I conclude that Respondent has violated Sec-
tion 8(aXS) of the Act by its refusal to recognize and
bargain with the Union, and that a bargaining order is
necessary.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act.
Having found that Respondent discharged Rosetta
Lyons and laid off Sharon Hunter on February 12, 1979,
and then having recalled Hunter to employment on April
23, discharged her on May 1, both in violation of Section
8(aX3) and (1) of the Act, I recommend that Respondent
be ordered to reinstate them to their former positions or,
if no longer available, to a substantially equivalent posi-
tion, without prejudice to their seniority and other rights
and privileges; and make them whole for any loss of
earnings or other monetary loss they may have suffered
as a result of the discrimination against them, less interim
earnings, if any. The backpay shall be computed in the
manner set forth in F. W. Woolworth Company, 90 NLRB
289 (1950), with interest to be computed in the manner
described in Florida Steel Corporation, 231 NLRB 651
(1977).' s
It is further recommended that Respondent be ordered
to recognize and bargain with the Union as the exclusive
collective-bargaining unit, as of February 21, 1979, the
date of the Union's demand and the date on which, in
is See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
this record, the Union's majority in the unit is estab-
lished. 14
Finally, because of the egregious nature of the unfair
labor practices herein, it is recommended that a broad
order is warranted in this case.' 5
CONCLUSIONS OF LAW
1. Palby Lingerie, Inc., Argus Lingerie Corp., Elmont
Underwear Corporation, and Richwear Sportswear, Inc.,
are employers engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Palby, Elmont, Richwear, and Argus constitute a
single integrated business enterprise.
3. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
4. Respondent violated Section 8(a)(1) of the Act by:
(a) Coercively interrogating employees concerning
their union activities and sympathies.
(b) Threatening employees with loss of jobs and clo-
sure of its garment manufacturing business if the employ-
ees selected the Union to represent them.
(c) Engaging in surveillance of its employees' union
and other protected concerted activities, and creating the
impression of surveillance of their activities.
(d) Promulgating and attempting to enforce a rule pro-
hibiting solicitation by employees of union membership
and distribution by employees of union literature during
nonworktime.
5. Respondent violated Section 8(aX3) and (1) of the
Act by discharging Rosetta Lyons, laying off Sharon
Hunter, and, after recalling her, constructively discharg-
ing Sharon Hunter, because of their union activities.
6. All production, maintenance, shipping and receiving
employees of Respondent employed at its Elmont plant
and its Brooklyn (Argus) plant combined, excluding all
other employees, guards and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act.
7. The Union is the exclusive collective-bargaining
representative of the employees in the above-described
unit.
8. By refusing, since February 21, 1979, to recognize
and bargain with the Union as the exclusive collective-
bargaining representative of its employees in the appro-
priate unit set forth above, Respondent has engaged in,
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
9. The aforesaid are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
14 Permanent Label Corporation, 248 NLRB 118 (1980).
' Hickmott Foods, Inc., 242 NLRB 1357 (1979).
185
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER'
The Respondents Palby Lingerie, Inc., Argus Lingerie
Corp., Elmont Underwear Corporation, and Richwear
Sportswear, Inc., their officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
union organizing or their interest in Local 57, Nassau-
Suffolk District Council, International Ladies Garment
Workers Union, or any other labor organization.
(b) Threatening employees with loss of jobs and clo-
sure of its garment manufacturing business if the employ-
ees select Local 57, Nassau-Suffolk District Council, In-
ternational Ladies Garment Workers Union, AFL-CIO,
to represent them.
(c) Surveilling and creating the impression that it is en-
gaged in the surveillance of their employees' union activ-
ities.
(d) Promulgating and attempting to enforce a rule pro-
hibiting solicitation by employees of union membership
and distribution of union literature by employees during
nonworktime.
(e) Laying off, discharging, or otherwise discriminat-
ing against any employee because of that employee's
union activities.
(f) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer Rosetta Lyons and Sharon Hunter full rein-
statement to their former jobs or, if those jobs no longer
exist, to a substantially equivalent position, without prej-
udice to their seniority or other rights and privileges and
make them whole for their loss of earnings in the manner
16 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations 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.
set forth in the section of the Decision entitled "The
Remedy."
(b) 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 nec-
essary to analyze the amount of backpay due.
(c) Upon request, recognize and bargain with Local
57, Nassau-Suffolk District Council, International Ladies
Garment Workers Union, AFL-CIO in a unit of all pro-
duction, maintenance and shipping and receiving em-
ployees of Respondent, employed at their Elmont plant
and their Brooklyn (Argus) plant combined, excluding all
other employees, guards and supervisors as defined by
Section 2(11) of the Act, respecting rates of pay, wage,
hours or other terms and conditions of employment and,
if an understanding is reached, embody such understand-
ing in a signed agreement.
(d) Post at its Elmont, Long Island, New York, and
Brooklyn, New York, plants copies of the attached
notice marked "Appendix."' 7 Copies of said notice on
forms provided by the Regional Director for Region 29,
after being duly signed by its authorized representative
shall be posted by it at its Long Island and Brooklyn
plants immediately upon receipt thereof and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by it to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
17 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Jydgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
186