River Togs, Inc.

National Labor Relations Board - Board Decisions

Jul 1, 1966

160 N.L.R.B. 58 (N.L.R.B. 1966)

58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT grant wage and insurance and hospitalization benefit increases
to discourage further activity and support for the Union.
WE WILL NOT instruct our employees to withdraw from the Union or in the
manner by which they might do so.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of rights guaranteed them by Section 7 of the National
Labor Relations Act.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of any labor organization.
QUALITY MARKETS, INC.,
Employer
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 pro-
visions, they may communicate directly with the Board's Regional Office, 1536
Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania, Telephone
644-2969.
River Togs , Inc. and Local 107, International Ladies ' Garment
Workers' Union , AFL-CIO. Case 219-C_A-187. July 1, 1966
DECISION AND ORDER
On January 3, 1966, Trial Examiner John H. Eadie Issued Iris
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 cer-
tain affirmative action, as set forth in the attached Trial Exanuner's
Decision. The Trial Examiner also found that Respondent had not
engaged in certain other unfair labor practices, and recommended
that these allegations of the complaint be dismissed. Thereafter,
Respondent and General Counsel filed exceptions to the Trial Exam-
iner's Decision and supporting briefs. The Charging Party also filed
exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoriat].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was conmmitted.
The rulings are hereby affirmed. The Board has considered the Trial
Exanniner's Decision, the exceptions, the briefs, and the entire record
in this proceeding, and hereby adopts the findings,' conclusions, and
The General Counsel has excepted to the credibility findings made by the Trial Exam-
iner it is the Board's established policy, however, not to overrule a Trial Examiner's
resolutions with respect to credibility unless, as is not the case here, the clear preponder-
ance of all the relevant evidence convinces as that the resolutions were incorrect Stand-
ard Dry Wall Products, inc. 91 NLRB 544, enfd 188 F 2d 362 (C .1 3)
160 NLRB No. 2.
RIVER TOGS, INC. 59
recommendations of the Trial Examiner, with the following addi-
tions and modifications.
1. As described more fully in the Trial Examiner's Decision, in
February 1965,2 Local 107, International Ladies' Garment Workers'
Union, AFL-CIO (hereinafter called the Union) commenced an or-
ganizing campaign among all the unorganized garment plants in
Suffolk County, New York, including Respondent's plant in River-
head, New York. Around March 11, the Union asked for recognition
as majority representative of Respondent's employees, offering to
prove its majority status through authorization cards which it had
obtained from those employees. On March 17, Respondent refused
recognition.
Almost immediately after the organizing campaign began, and
continuing for a period of about 2 months, Respondent embarked
upon a vigorous campaign in opposition to the Union. The Trial Ex-
aminer found, and we agree, that Respondent engaged in extensive
violations of Section 8(a) (1) of the Act during the course of this
antiiinion campaign, including interrogation of employees concern-
ing their interests and activity in the Union, threats of reprisal, and
creation of the impression among employees that it was keeping their
union activities under surveillance. However, in addition to the vio-
lations of Section 8(a) (1) found by the Trial Examiner, we find also
that Respondent violated Section 8(a) (1) in the following respects:
(a) Salvatore Avellino, Jr., is the sole stockholder and owner of
Respondent and of Junior Sportswear, a company with a, plant lo-
cated in Centereach, New York. On March 15, Avellino made a
speech during working time to assembled employees at Respondent's
plant. At this time, the Union had already sought recognition and
had held two union meetings. A third union meeting was scheduled for
that same evening, The Trial Examiner found that Avellino told
employees, among other things, that he knew that most of them had
attended the union meetings; that, in case any employee did not
know, there was going to be a union meeting that night in the "Wind-
sor Room" at the Perkins hotel; that as a lot of the employees were
still unable to snake the minimum of $1.25 per hour, he did not see
how they could make the Union's minimum of $1.75 or $1.80; and,
that with the Union's minimum he would have only five operators
because the rest would be unable to make it. Avellino also stated that
the plant had been nonunion since 1958 and did no business with
union jobbers; that it would take months to find union jobbers and he
could not keep the plant open that long without work; and that he
would be able to continue operation of the plant only if the Union
obtained for him a "permanent registration" with a union jobber.
2 All dates , unless otherwise noted, are in 1905:
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Contrary to the Trial Examiner, we find this speech was violative
of the Act. Avellino's remarks regarding the union meeting made
it amply clear to employees that Respondent was maintaining a close
watch over the union activity of its employees and thus created the
impression of surveillance, in violation of Section 8 (a) (1). Further,
Avellino's statements about the effects of unionization on the plant
constituted threats of reprisal, also violative of Section 8(a) (1) be-
cause they would clearly convey to employees the idea that if the
plant became unionized, it was probable that the employees would
lose their jobs either because they could not meet the Union' s "mini-
mum" or because Respondent would have to close down the plant.
(b) We also find that respondent violated Section 8 ( a) (1) by
Supervisor Billie Mastrioni 's statement to employees sometime around
March 18 that three machines were being taken out of the plant "be-
cause of the Union. " This statement made it clear to employees that
they were being punished with loss of work because of their union
activity and therefore constituted coercion of employees in the exer-
cise of their Section 7 rights.
(c) We also agree with the Trial Examiner that Respondent's con-
duct, relating to the circulation of the petition in which employees
indicated their desire not to join the Union , violated Section 8 (a) (1)
of the Act.
As described more fully in the Trial Examiner 's Decision, on
March 16, the day after the last union meeting, employees Gumarelli
and Lennan spoke to Lillian Andreasen, Avellino's personal secre-
tary. They explained to her their desire to circulate among the em-
ployees a petition by which signatories could indicate that they did
not wish to support the Union. At their request, Andreasen drafted
the petition and then wrote it out in longhand, making a duplicate
copy. That day, during the coffee break, and for about 15 minutes
after employees returned to work, employees Lennan and Malinowski
circulated this petition and solicited other employees to sign it. Su-
pervisor Martin, who usually remains in the back of the shop, and
Supervisor Mastrioni were standing in the production area during
the entire time that the petition was being circulated, and they spoke
to Lennan and Malinowski while these employees were circulating
the petition . After obtaining a number of signatures , the two em-
ployees went to Andreasen's office and asked her to keep the petition.
She refused, and the circulators then gave it to Supervisor Mastrioni.
Later the same day, when Avellino called the office, Andreasen told
him that some employees who were against the Union were circulat-
ing a petition.
In view of the foregoing, and in light of Respondent's other anti-
union conduct, we find that, by assisting in the preparation of the
RIVER TOGS, INC. 61
petition and by permitting its circulation in part on working time, in
the presence of and with the knowledge of supervisors, Respondent
gave employees the impression that the petition was being circulated
with its approval and thus restrained and coerced employees in the
exercise of their rights under Section 7, in violation of Section
8(a) (1).3
2. Unlike the Trial Examiner, we find that Respondent discrimi-
natorily laid off employees Kozak, Kotun, Adair, Gaines, and Mayo
in violation of Section 8(a) (3) of the Act.
Respondent is engaged in the manufacture of ladies' dresses. Its
plant had been operated using a complete section process, whereby
each separate operation was performed by different employees, but,
about the time of the layoffs, according to Respondent, the opera-
tion was changed to a semi-section system under which each employee
performed several different operations on the same garment. Just
prior to the layoffs, a customer of Respondent requested that 1,000
dresses with skirts be returned, and about March 17, many skirts
were removed from the plant. Supervisor Martin later explained to
an employee that this was "because of the Union." When employee
Gaines asked Mastrioni if the few remaining skirts were the only
ones that the skirt operators had to work on, she replied "yes, the
rest is going back ... that's the way you want it." At the same time,
three machines, including the machine used by Kotun who was later
laid off, were removed from the plant and when Mastrioni was asked
why, she replied, "because of the Union." We have found that latter
statement by Mastrioni to be violative of Section 8 (a) (1). A day
or two later on March 19, employees Gaines and Dixon were laid off.
That same day Kozak, who was not at work during that week, ,received
word through Kotun, bier daughter, that she was laid off. At the time
of the layoffs, these employees were not informed of any changeover
in the plant's operations nor were they asked if they possessed any
other skill that could be utilized. A short time later, on March 22,
Kotun was laid off, and thereafter, on March 24, Mayo and Adair
were also laid off.
Respondent argues that these layoffs were made for economic rea-
sons. Although its contentions are not entirely clear, Respondent ap-
parently takes the position that it laid off the five employees who al-
legedly were skirt operators for a period of approximately 3 weeks
for lack of work, since the only dresses to be sewn at that time were
those of an "A-line style," which are one-piece dresses without skirts.
According to Respondent, its plant production averaged about 2,000-
s The complaint alleges that Respondent committed other unfair labor practices in viola-
tion of Section 8(a) (1) in addition to those found herein. However, we shall make no
additional findings regarding these allegations, as in our opinion such findings would
merely be cumulative and would not affect the remedy.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2,500 dresses per week, and since there were 6,000 "A-line" dresses
on hand, there was no need for the skirt operators for 2 or 3 weeks.
Respondent makes the further argument that the layoffs were also
related to its decision to change from a complete section to a semi-
section operation. Thus, according to Respondent, it was losing
money under the complete section operation and when, about March 19,
a jobber removed 1,000 dresses with skirts, and all that remained
were A-line dresses, Respondent decided to make the changeover.
Respondent contends that because of this change in operation, it had
no need for skirt makers at that time but that it planned to recall
the five skirt makers at a later time when it would retrain them for
semi-sectional work.
The Trial Examiner, although noting that there were persuasive
facts and arguments to support the allegations of the complaint that
the five employees were discriminatorily laid off, nevertheless, agreed
with Respondent that the five employees were laid off for cause. We
disagree for the following reasons.'
We are not persuaded that Respondent laid off these five employees
because there was no work for them. Respondent's arguments, al-
though in certain respects inconsistent, are both based upon the fact
that these employees were skirt makers and there was no work for
skirt makers at that time. However, the record clearly establishes
that each of the laid-off employees was not only a skirt maker but
had performed a variety of other sewing operations at the plant.
Thus, Kozak testified without contradiction that, during the time
she was employed, besides working on the skirits, she did closings
on blouses, put in darts, and made sashes and bows. Gaines testified
without contradiction that she had been employed since the first day
the factory was opened, and besides making skirts, she had performed
functions such as inserting darts, lining dresses, and closing the sides
of blouses. Kotun, whose primary job was, "merrowing facings,"
had, at various times, also sewn sleeves, tops, blouses and also sewn
zippers into facings. Mayo testified without contradiction that she
performed work on darts, shoulders, joinings, facings, flaps, and
skirts. Avellino admitted that Adair was primarily a dart maker
and shoulder joiner.
Further, Avellino admitted that at the time of the layoffs he had
instructed supervisors to hire "anybody" coming into the plant "with
any kind of experience," and Respondent actually hired two unskilled
employees, who had to be instructed and who were very "slow." The
* In view of the above statements by Dlastrioni , it appears that the change from the
complete section manufacturing process to a semi -sectional process itself may have taken.
place as a reprisal for the union activity of employees We make no finding on this issue,
however,. since the complaint contains no allegation to this effect
RIVER TOGS, INC. 63
fact that there was work at the plant for completely unskilled em-
ployees while the discriminatees were senior employees, most of whom
had been working there since the plant was opened and had per-
formed a variety of jobs, is inconsistent with Respondent's conten-
tion that the alleged discriminatees were laid off because there was
no work.
Also, the record indicates that after Kotun and Mayo were re-
called several weeks later, they performed the same type of work on
skirts that they had been doing prior to the layoff. This fact sug-
gests that the changeover to a semi-sectional operation, if made at
all, did not occur at the earliest until several weeks after the layoff;
or, if the changeover did take place prior to the layoff, that, contrary
to Respondent's contentions, skirt makers were still needed under a
semi-section operation.
Finally, as noted, when Gaines and Kotun were laid off, they were
not informed of any changeover in the plant's operations; and none
of the five laid-off employees were asked if they possessed any other
skill that would be required.
In finding that the layoffs were not unlawful, the Trial Examiner
relied in part on the fact that none of the laid-off employees were
more active on behalf of the Union than others in the plant. But
discriminatory action against an employee merely for union member-
ship or activity is as much a violation of the Act as his discharge for
union leadership.5 The record establishes that each of the five laid-
off employees had been active on behalf of the Union and that Re-
spondent had knowledge of this fact. Thus, the five laid-off em-
ployees signed authorization cards and attended union meetings;
Avellino admitted that Respondent "knew that most of the em-
ployees had attended the union meetings"; and there was no excep-
tion to the finding by the Trial Examiner that Avellino had specific
knowledge that Kozak was an active union adherent.
In further support of his finding that the layoffs were not unlaw-
ful, the Trial Examiner reasoned that if in fact Avellino's purpose
in laying off the employees was to discourage union membership, he
would have laid off Cratch, who was a poor producer, and he would
not have laid off Dixon- or Kotun, the latter being a "superior pro-
ducer." We find this reasoning confusing. Respondent's payroll
records indicate that Gaines, who was, laid off, was a better-than-
average producer and that Kotun had a superior performance record.
These facts, if anything, tend to disprove Respondent's 'contentions
that the layoffs were for economic considerations, since if, as it claims,
Respondent was losing money, it would want to retain its best workers.
S
5 Southern Maid Paper Company, 141 NLRB 1023, 1031 ; Des Moines , Springfield and
Southern Route, 78 NLRB 1215, 1217.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor do we understand the Trial Examiner's reasoning that the lay-
off of a poor producer would have a greater tendency to discourage
union membership. But even if so, the fact is that Kozak, Adair,
and Mayo were laid off, and, according to payroll records, they also
were poor producers.
Accordingly, in view of the foregoing, and particularly in the light
of the fact that the layoff took place in the midst of an unlawful
antiunion campaign conducted by Respondent, we find that the lay-
off of employees Kotun, Kozak, Adair, Gaines, and Mayo was for
the purpose of discouraging union activities, and by this conduct Re-
spondent violated Section S(a) (3) and (1) of the Acts
3. The Trial Examiner found that Respondent violated Section
8(a) (5) on and after March 12 by refusing to recognize and bargain
with the Union as the majority representative of its employees in
an appropriate unit.
(a) Initially, we agree with the Trial Examiner that a unit of all
production and maintenance employees at Respondent's plant in
Riverhead, New York, is appropriate. Respondent contends that the
only appropriate unit comprises all similarly classified employees at
both Respondent's plant in Riverhead, New York, and the Junior
Sportswear plant in Centereach, New York.
Salvatore Avellino, Jr., is the sole stockholder and owner of both
companies which are engaged in the manufacturing of ladies' dresses.
The plants are located approximately 25 miles apart, and each is
under separate immediate supervision. There is no history of col-
lective bargaining at either plant. Junior Sportswear was estab-
lished in 1958. When Respondent began operations in January 1964,
some employees were temporarily transferred from Junior Sports-
wear for the limited purpose of training the new employees, all of
whom had been hired solely to work at Riverhead. Other interchange
between the two plants has occurred, but only on an emergency basis.
The only evidence of product integration between the plants is that,
as part of an experimental plan, employees at both plants have per-
formed work on the same garments. This plan was discontinued after
4 weeks because it was "too confusing to maintain the same operation
in both locations." Also, Respondent's plant does the cutting, when
necessary, for garments manufactured at Junior Sportswear. There
is one office employee working at Respondent's plant who makes up
the payroll for both plants. All personnel and accounting records
are separately maintained for each plant, although both plants jointly
maintain various insurance and liability policies.
9 We find no merit in the 'General Counsel 's exception to the Trial Examiner ' s finding
that subsequent to her recall to work Mayo was discharged for cause
RIVER TOGS, INC. 65
The Board has held that a single plant unit is presumptively ap-
propriate unless there is a bargaining history in a broader unit or
unless the plant is so integrated with another as to negate its identity.'
On the basis of the foregoing, and as the evidence does not establish a
sufficient degree of integration between the plants, we find that a unit
limited to the employees of Respondent's plant at Riverhead, New
York, is appropriate for the purposes of collective bargaining.
(b) We also agree with the Trial Examiner that, since on or about
March 12, the Union represented a majority of the 49 employees in the
appropriate unit.
The General Counsel introduced into evidence 27 cards signed by
employees in the appropriate unit.' The Trial Examiner found, as
contended by the General Counsel, that the cards of employees Suchto
and the two Rodziewicz sisters should be counted toward the union
majority despite the fact that all three spoke Polish but no English.
Refusing to credit the testimony of Suchto and the Rodziewicz sisters
that they did not intend to designate the Union as their bargaining
representative when they signed authorization cards at the March 10
meeting, the Trial Examiner found that at the meeting, Banyai, the
business manager of the Union, paused during his talk in order that
his statements regarding the Union could be interpreted to the Polish
employees, and that "the purpose of the authorization cards was ex-
plained to them before they signed them."
We agree that Suchto's card should be counted because Kozak,
whose testimony the Trial Examiner credited, testified that at the
union meeting she explained the meaning of the authorization card
to Suchto, and that she translated to Suchto Banyai's remarks into
Polish. Counting Suchto's card, we find that the Union on March 10,
when it made its demand for recognition, represented 25 out of 49 em-
ployees. As the Union thus represented a majority of employees in
the appropriate unit, we find it unnecessary to decide whether the
cards of the Rodziewicz sisters should also be counted toward the
majority. Further, like the Trial Examiner, we also find it unnec-
essary to decide whether Albert Mastrioni, the husband of Supervisor
Mastrioni, although not signing an authorization card, should be
counted in establishing the Union's majority, because of his member-
ship in the Union.
(c) We also agree with the Trial Examiner that Respondent vio-
lated Section 8(a) (5) of the Act by refusing to recognize and bargain
7 Dixie Belle Mills, Inc, 139 NLRB 629
8 The General Counsel originally introduced into evidence 30 authorization cards. How-
ever, Hobson ' s card was excluded because she was terminated permanently prior to
March 11, and Mallnowski ' s and Martinsen 's cards were not counted since they were not
executed until after the demand for recognition.
257-551-67-vol. 160-6
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Union. We have already found that Respondent engaged in
an extensive antiunion campaign, violative of Section 8(a) (1), which
included interrogation of employees concerning their interest and ac-
tivity in the Union, threats of reprisal, creating the impression of
surveillance of union activities, and approving the circulation of a
petition in which employees indicated their desire not to join the
Union. We have also found that Respondent discriminatorily laid
off five employees in violation of Section 8(a) (3). In view of the
foregoing, we find that Respondent's failure to accord recognition to
the Union, which represented a majority of its employees, was not in
good faith, but rather was borne of a desire to gain time to subvert the
Union's majority and to thwart unionization, and therefore violated
Section 8 (a) (5) of the Act.'
THE REMEDY
Having found that Respondent engaged in conduct in violation of
Section 8(a) (1), (3), and (5) of the Act, we shall order that it cease
and desist from such unlawful conduct and post the usual notices. We
have found that the layoffs of employees Kozak, Kotun, Adair, Gaines,
and Mayo violated Section 8(a) (3), but that Respondent thereafter
reinstated them and later lawfully discharged Mayo. We shall there-
fore require Respondent to offer to all employees, who were unlaw-
fully laid off, except Mayo, immediate and full reinstatement 10 to their
former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make them, includ-
ing Mayo, whole for any loss of earnings they may have suffered by
reason of the discrimination against them, by payment to them of a sum
of money equal to that which they would have earned as wages from
the date of the discrimination to the date of the offer of full reinstate-
ment, less their net earnings during said period, in the manner pre-
scribed in F. W. Woolworth Company, 90 NLRB 289, and with interest
on backpay due, in accordance with Isis Plumbing c' Heating Co., 138
NLRB 716. In the case of Mayo, backpay with interest thereon shall
run to the date of her discharge.
AMENDED CONCLUSIONS OF LAW
Paragraph 7 of the Trial Examiner's Recommended Conclusions of
Law is deleted and the following conclusion of law is substituted
therefor :
7. By laying off Frances Kozak, Vera Gaines, Carol Ann Kotun,
Rose Mayo, and Cecil Adair because of their union activity, Respond-
6 Joy Silk Mills, Inc , 85 NLRB 1263, enfd as modified, 185 F.2d 732 (C A D C ), cert
denied 341 U S. 914
10 As the question whether the laid-off employees were subsequently reinstated to their
former or substantially equivalent positions may not have been fully litigated at the
hearing, we leave the determination of this issue to the compliance stage of this proceeding
RIVER TOGS, INC. 67
ent has engaged in unfair labor practices as defined in Section 8 (a) (3)
and (1) of the Act.
[The Board adopted the Trial Examiner's Recommended Order,"
with the following modifications:
[1. Add the following as paragraph 1(c) to the cease and desist
portion of the Trial Examiner's Recommended Order, and reletter
the subsequent paragraphs in sequence :
[" (c) Discouraging membership in, or activities on behalf of,
Local 107, International Ladies' Garment Workers' Union, AFL-
CIO, or any other labor organization, by laying off or in any other
manner discriminating against any of its employees in regard to hire
or tenure of employment or any other term or condition of employ-
ment, because of their union membership or activities."
[2. Add the following at the end of paragraph 2(a) of the Trial
Examiner's Recommended Order : "The appropriate unit is:
[All production and maintenance employees of the Respondent
at its Riverhead, New York, plant, exclusive of office clerical
employees, guards, and all supervisors as defined in the Act."
[3. Add the following as paragraph 2(c) of the Trial Examiner's
Recommended Order, and reletter the subsequent paragraphs in
sequence:
["(c) Offer Cecil Adair, Frances Kozak, Vera Gaines, and Carol
Ann Kotun immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority
and other rights and privileges, and make them and Rose Mayo whole
for any loss of pay they may have suffered by reason of the dis-
crimination against them in the manner set forth above in the sec-
tion herein entitled "The Remedy."
[4. The description of the bargaining unit subparagraph in the
notice attached to the Trial Examiner's Decision is amended to read:
[All production and maintenance employees of the Respondent
at its Riverhead, New York, plant, exclusive of office clerical
employees, guards, and all supervisors as defined in the Act.
[5. Add the following as the third paragraph to the notice attached
to the Trial Examiner's Decision :
[WE WILL NOT discourage membership in, or activities on be-
half of, Local 107, International Ladies' Garment Workers'
Union, AFL-CIO, or any other labor organization, by laying off
"Although finding that Respondent engaged in additional violations of Section 8(a) (1)
of the Act by making threats of discharge and other reprisals, creating the impression of
surveillance , and engaging in other acts of interference , we find it unnecessary to amend
the order as these violations are cumulative and are co,ered, by the Trial Examiner's
Recommended Order
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or in any other manner discriminating against our employees
in regard to hire or tenure of employment or any other term or
condition of employment, because of their union membership or
activities.
[6. Add the following as the fourth paragraph to the notice at-
tached to the Trial Examiner's Decision:
[WE WILL offer to the following employees immediate and full
reinstatement to their former or substantially equivalent posi-
tion, without prejudice to their seniority or other rights and
privileges, and make them and Rose Mayo whole for any loss
of pay they may have suffered as a result of our discrimination
against them, in the manner provided in the section of the
Board's Decision entitled "The Remedy."
[Frances Kozak, Vera Gaines, Carol Ann Potfl, and Cecil
Adair.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was held before Trial Examiner John H. Eadie in Riverhead,
New York, on various dates starting on July 6 and ending on July 23, 1965, on the
complaint of the General Counsel and the answer of River Togs, Inc , herein called
the Respondent.' The issues litigated were whether the Respondent violated Sec-
tion 8(a)(1), (3), and (5) of the Act. After the conclusion of the hearing the
General Counsel and the Respondent filed briefs with me.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a New York corporation with its principal office and plant in
Riverhead, New York. As a contractor it is engaged in the manufacture of women's
clothes and related products.
During 1964, in the course and conduct of its business operations, the Respondent
performed services valued in excess of $50,000, of which services valued in excess of
$50,000 were furnished to, among others, Casco & Arandy, which enterprise annually
produces goods valued in excess of $50,000 which it ships directly out of the State
wherein it is located.
II. THE LABOR ORGANIZATION INVOLVED
Local 107, International Ladies' Garment Workers' Union , AFL-CIO, is a labor
organization which admits to membership employees of the Respondent.
II. THE UNFAIR LABOR PRACTICES
A. Background; sequence of events; interference, restraint, and coercion
Salvatore Avellino, Jr., is the sole stockholder and owner of the Respondent and
of Junior Sportswear, a company with a plant located at Centereach, New York,
which is about 25 miles distant from Riverhead. Junior Sportswear also is engaged
in the manufacture of ladies' dresses. Avellino, a contractor, receives material, either
cut or uncut from a jobber, to sew into dresses according to the specifications and
style design of a jobber, and then ships it back to the jobber, who pays a flat fee per
garment.
'Charges were filed by Local 107 , International Ladies' Garment Workers' Union, AFL-
CIO, herein called the Union, on March 22 and May 18, 1965 . The complaint issued on
May 28, 1965
RIVER TOGS, INC. 69
Avellino established Junior Sportswear in 1958. Upon the opening of the Re-
spondent 's plant in January of 1964 , employees from Junior Sportswear were trans-
ferred to it to help train the new work force. During the early part of 1964 a large
part of the work for one jobber,Gjenfrey Fashions , was performed at both plants.
At all times material herein , cutting for both plants was performed at the Respond-
ent's plant.
Both plants employ machine operators , pressers , and floorgirls . The Respondent's
plant also has cutting department employees . Junior Sportswear worked under a
"complete garment" procedure , whereby the operators each performed all the opera-
tions necessary to sewing the garment . The Respondent 's plant started with a "com-
plete section" procedure whereby employees performed only a single operation on
the garment and it moved on to another who performed another operation By
reason of this procedure Avellino frequently had to transfer employees to different
operations or send them home until the flow of work reached their particular opera-
tion. This was especially true of the skirt department.
At sometime during 1964 the finishing departments of the two plants were con-
solidated , with all of such work performed at the Respondent 's plant. This practice
was discontinued on or about February 22, 1965, and some finishing employees were
transferred to Junior Sportswear . Employees at times were temporarily transferred
from one plant to the other to help out because of a bottleneck or because of absentee-
ism. In such cases the employees remained on the payroll of their employer
The office for both plants is located at the Respondent 's plant. Lillian Andreasen
is the only office worker. She makes out the payroll for both plants Although
separate payroll records are maintained for both plants , the employees in the finishing
department of Junior Sportswear are listed under a blue line in the Respondent's
payroll book . The finances of both corporations are handled by the same account-
ant who makes monthly visits to the Respondent 's plant.
During February of 1965 2 the Union began an organizational campaign among all
the unorganized garment companies in Suffolk County, including the Respondent's
plant On February 18, the Union distributed literature to employees in front of
the plant. Thereafter , three union meetings were held at the Henry Perkins Inn, a
hotel in Riverhead , to which only employees of the Respondent were invited. The
meetings were held on March 3, 10, and 15, and started shortly after the employees
ceased work . The Union provided the employees with meals at the meetings.
Edward Banyai, manager of the Union , spoke at each meeting. Clara Rhatigan,
business agent of the Union , was present at the meetings
During the day of March 10 Supervisor Billie Mastrinoni 3 went to the machine
of employee Alice Wright. She asked Wright, "Where are you going tonight "
When Wright evaded the question , Mastrioni asked her if she was going to "a union
meeting." Wright did not give her an answer.
It is found that Mastrioni 's interrogation violated Section 8(a)(1) of the Act.
About 30 employees were present at the union meeting held on March 10. Three
of these employees , Helen and Jane Rodziewicz , sisters, and Jadwiga Suchto spoke
Polish only. The Rodziewicz sisters were accompanied by their "cousin ," who was
not an employee and who acted as their interpreter . Employee Frances Kozak, who
spoke both English and Polish , interpreted for Suchto . Banyai paused during his
speech in order to give the interpreters time to translate his remarks to the Polish
employees . Authorization cards of the Union were signed during the meeting
After they were collected , Banyai announced that a majority of the Respondent's
employees had signed cards,4 and that he would so notify the Respondent and demand
recognition . Employee James (Shorty) Tolar was present at the meeting. He had
a camera and attempted to take pictures , but was stopped from doing so.
At about 10 : 30 a in., on March 11 during work Supervisor Mastrioni spoke to the
employees over "the plant loudspeaker . She stated that she just had received a call
from Avellino; that he knew who was at the union meeting the night before; that
he would close the shop before he would "join a union", and that any employee who
still wanted a union could leave the plant.
Since Mastrioni's statements contained a threat of reprisal and created the im-
pression to the employees of keeping under surveillance their union activities, they
are found to be violative of Section 8(a) (1) of the Act.
2 Except where otherwise indicated , all dates are in 1965
3 The Respondent admitted in its amended answer that Mastrioni was a supervisor
within the meaning of the Act Mastrioni did not appear as a witness at the hearing
4 Nine employees , including the Rodziewicz sisters and Suchto , signed cards at the meet-
ing Prior to the meeting 19 employees , including James Tolar , Marlene Hobson. and
Albert Boler , had signed cards. These cards will be discussed in more detail hereinafter
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At about the end of the working day on March 11, Aveillino had a conversation
with Tolar, the employee who had attempted to take pictures at the union meeting.
The conversation took place a short distance from where some employees, including
Wright, Bartlett, Mayo, and Kotun, were punching out for the day. Supervisor
Nick Martin 5 also was present. Avellino asked Tolar if he had "the pictures."
When Tolar replied that he did not have any pictures, Avellino said, "Well, why did
you lie to me? You promised me you would get them." He asked Tolar, "how
do you know there was a union meeting?" Tolar replied, "Because the girls told
me." Avellino then said, "Well, Shorty, don't buy a house because you can't buy
a home if you don't have a job and none of us will have a job " At the end of the
conversation Avellino said to Martin, "Hey, Nick, this guy is a ringleader." 6
It is clear from the above that Avellino was trying to create the impression to
employees that he had their union activities under surveillance. He also made a
threat of reprisal to Tolar Accordingly, I find that Avellino's remarks were viola-
tive of Section 8(a)(1) of the Act.
Banyai sent a letter, dated March 11, to the Respondent, as follows:
This is to inform you that the International Ladies' Garment Workers' Union
has been duly designated as the collective bargaining representative by a ma-
jority of your non-supervisory production and maintenance employees.
Accordingly, it is hereby requested that the Union be recognized as the ex-
clusive bargaining representative of the employees in the aforesaid bargaining
unit, and that you meet with the undersigned, as representative of the Union,
in order to negotiate a labor agreement for these employees.
Kindly acknowledge receipt of this letter and indicate a time and place which
is convenient for such a meeting.
On March 12, after receiving the Union's letter, Avellino telephoned Banyai.
Banyai told Avellino that a majority of the employees had signed authorization
cards, and requested him to recognize the Union and meet with it in order to nego-
tiate an agreement He offered to prove the Union's majority by showing Avellino
the signed authorization cards. Avellino replied that he would "consider going
union" only if Banyai would guarantee him "52 weeks' work a year, a registration with
a union jobber." Banyai stated, "Our function is not to provide jobbers. Our func-
tion is to organize workers." Banyai told him that the Union had filed a petition
for an election with the Board and asked him to agree to a consent election. Avel-
lino did not answer this request. He complained that the Respondent had been
losing money; and warned that if the Union persisted in its organizing efforts, he
would be forced to close the plant. He repeated that he would consider recog-
nizing the Union only if it got him a union jobber and guaranteed the work. They
ended the conversation by agreeing to meet for lunch at a restaurant on Wednesday,
March 17.7
Immediately following his conversation with Banyai, Avellino spoke to some
cutting employees. They asked him what he was going to do about the Union and
told him that they did not want to join it. He replied, "Well, don't worry about
it because right now I'm not joining the union either." He asked them, "What
took place with these cards?" Employee Boler replied that he signed a card in
order to obtain a meal that the Union furnished.8
As noted above, the third union meeting was held Monday night, March 15. That
day during work Avellino called the employees together and talked to them. In
substance, he told them that he knew that most of the employees had attended the
union meetings; that, in case any employee did not know, there was going to be a union
5 The Respondent admits the supervisory status of Martin. He did not appear as a
witness at the hearing.
6 The above conversation is based upon the credited testimony of Wright, Kotun, and
Bartlett. Avellino testified to the effect that he was merely teasing Tolar. He denied
that he sent Tolar to the union meeting to take pictures Tolar did not appear as a
witness at the hearing As noted above, Tolar signed an authorization card of the Union.
7 The above conversation is based upon credited portions of the testimony of both Banyal
and Avellino. Testimony contrary to the above is not credited.
8 Avellino testified without contradiction to the above. He also testified that after talk-
ing to the cutting employees lie spoke to Supervisors 'Martin and Mastrioni, and that they
told him that they had heard that "the girls were under the impression that they were
signing these cards for a dinner "
RIVER TOGS, INC. 71
meeting that night in the "Windsor Room" at the Perkins Hotel; that the Union
would probably get the employees what it had promised them; that, however, they
should go to the meeting and ask whoever was in charge of the meeting what the
Union was going to do to obtain work for the plant, that the employees should
first have come to him before going to the Union as he would have explained to
them why he could not do certain things, that the Respondent had lost a lot of
money teaching the employees to sew and because of "tremendous make up pay",
that since "a lot" of the employees were still unable to make the minimum of $1.25
per hour, he did not see how they could make the Union' s minimum of $1.75 or
$1.80; that with the Union's minimum he would have only "five operators" because
the rest would be unable to make it; that he had been nonunion since 1958 and
had no connections with union jobbers; that since it would take months to find
such jobbers, he could not keep the plant open that long without work, that the
prices paid to him by his nonunion jobbers were not enough to pay for the union
benefits, that he would have no objections to the Union and would recognize it if
it got him a "permanent registration" with a union jobber; and that he would be
able to continue operation of the plant under such an arrangement. He asked
several employees to state what their experience had been when they worked in
union shops. They stated that the shops had "closed down." Some of the em-
ployees then said that they were "against" the Union. Avellino put a stop to the
ensuing discussion, saying that he was not interested." 9
Employee Helen Malinowski attended the union meeting held on March 15. She
asked "quite a few" questions. However, she signed an authorization card during
the meeting after Rhatigan told her that the Union had "the majority of the people
from River Togs signed up." As the employees entered the hotel, the Respondent's
accountant was in the lobby. He was still there for at least 10 minutes after the
meeting started.10
On March 16, employees Marie Gumarelli and Angela Lerman went to the office
and spoke to Andreasen. They told Andreasen that they did not wish to join the
Union and wanted to circulate a petition because they thought that there were other
employees who also were against the Union. They explained that they needed two
pieces of paper because they were going to solicit the Polish employees separately.
When Andreasen gave them the paper, Gumarelli asked her to write the petition
because her handwriting was poor Andreasen then wrote the petition in longhand,
making a duplicate copy. She phrased it in her own words after Gumarelli told
her what she wanted the petition to say."
Lerman and Malinowski solicited employees to sign the petitions during the
coffee break and for about 15 minutes after the employees had returned to work.
Supervisois Mastrioni and Martin were present during this time. Either Gumarelli
or Lerman brought the petitions to the office and asked Andreasen to put them "in
the files." Andreasen refused The petitions were then given to Supervisor
Mastrioni
The complaint alleges that the Respondent, by Martin and Mastrioni, authorized
and permitted the circulation of the petitions among the employees and induced
them to sign it; and that such conduct was violative of the Act. There can be no
question under the circumstances related above that the employees were under
9 The above facts concerning Avellino's speech are from credited portions of his testi-
mony and that of various witnesses called by the General Counsel Testimony contrary
to the above is not credited The General Counsel contends that Aiellino's speech leas
violative of the Act I disagree
10 The General Counsel contends that by the accountant's presence the Respondent
created "an impression of surveillance " Since the accountant stayed at this hotel when
he visited the Respondent's plant, this contention is rejected
11 The petition reads as follows
To Whom It May Concern
We, the undersigned, garment workers in the employ of River Togs, Inc, River-
head, N.Y, want it know [sic] that we do not wish to join a union of any kind and
prefer working in a shop which is non-union We are being treated fairly by River
Togs, Inc., and see no reason for a change in status
Respectfully,
Andreasen testified that some time during the day after the employees had left the office
Avellino telephoned her, and that she told him that some employees who were against the
Union were "circulating a petition
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercion when they were solicited to sign the petitions . 12 The question remains as
to whether or not the Respondent was responsible for such coercion.
The plant was small, with less than 50 production employees . It is undisputed that
Lennan at times acted as Mastrioni 's "assistant ," that part of the solicitation took place
during work , 13 that production was interrupted, and that Mastrioni and Martin were
present while the petitions were circulated . From these facts , I am convinced that
either Mastrioni or Martin , or both, had knowledge of the petitions and authorized
and permitted their circulation . However, aside from the question of knowledge
at the time , it is undisputed that both Avellino and Mastrioni knew of the peti-
tions shortly after they were circulated and made no effort to dispel the coercive
effect of the solicitations on the employees . Accordingly , I find that the circula-
tion of the petitions was violative of Section 8 (a)( 1) of the Act.
Banyai and Avellmo met as agreed on March 17 . Banyai was accompanied
by Bernard Koozman, a representative of the Union . John Del Mastro was with
Avellino. Concerning the conversation Banyai testified credibly as follows:
Mr. Koozman and I met Mr. Avellino, Jr. at Friede 's Restaurant at one
o'clock and we walked into the lobby of the restaurant and Mr. Avellino turned
to us and said, that he had to break the luncheon appointment but he wanted
to tell us right off the bat that under no circumstances would he recognize the
union or deal with the union , only one way and that would be if we would
give him a union jobber , registration and a guarantee of 52 weeks ' work in
the year.
I told him that that 's not our job That on occasion we do provide jobbers
but we are here now to prove to him that we have the majority of the people
signed in River Togs and that we would like to sit down and negotiate an
agreement.
At this time, he went over to the dining room proper and he beckoned to
someone and a person came out who introduced himself as Mr. John Del Mastro
Mr. Del Mastro stated that he was aware of the situation here and that he
wanted to tell something new and that is that Mr. Avellmo, Senior , was in the
hospital, he had suffered a heart attack and couldnt we wait with this whole
problem until Mr. Avellino , Senior, was out of the hospital.
I told Mr Del Mastro that Mr. Salvatore Avellino, Junior, is the owner and
the principal and the president of River Togs, and we wanted to deal with him.
Mr. Del Mastro said that that's true , but it is the father's money and he calls
the shots . Wouldn ' t we wait until the father got out of the hospital
I said that this puts us at a disadvantage because Mr. Avellino, Junior, had
started campaigning against us in the factory , had sent work back. A petition
was being circulated against the union and we were at a disadvantage to hold
off on anything.
Mr. Del Mastro then said that if we would hold off, that he would make sure
that the shop would keep working.
I said that we couldn't hold off and then Mr. Avellino , Junior, said that this
was no good as far as he was concerned either because we had four or five
people in the shop as plants , as instigators , that they were going around the
factory disrupting production , talking to people and talking for the union and
that one was a Polish person and that we would have to tell these people to stop
I told Mr. Avellino that we didn 't have any plants in the factory and we don't
know what he was talking about
Mr. Del Mastro then said that-he turned to Mr. Avellino . Junior, and he
said that you keep the shop working and they will keep the people quiet . Other-
wise, you give them the pink slip.
I then asked Mr. Del Mastro if he would agree to a card check , that if we
could get the issue of recognition out of the way, perhaps we could wait until
Mr. Avellino 's father got out of the hospital. -
Mr. Del Mastro said that he couldn ' t agree to this. He couldn 't speak for
the father and then Mr. Avellino, Junior said that this wasn't any good either
because he had been in the city a few days prior to this time and he told his
12 The evidence shows that Malinowskl , in substance , told the employees that there would
not be steady work if the Union eot in the plant Carol Kotun testified that she signed
the petition because she was afraid since Mastrioni was a short distance behind her when
she was asked to sign
13 The Respondent did not produce any evidence to the effect that it permitted solicita-
tions on company time The record indicates that such was not the case
RIVER TOGS, INC. 73
jobbers that there was a union problem going on and that a jobber told him to
start sending work back and that the jobber told him that if he has a cancer,
that he was to cut it out. And that he lost a great deal of money in River Togs
and if we continued our efforts to organize, that he would close He would
definitely close.
Then I said to Mr. Avellino that we represented the majority and would he
admit that?
He said no, he wouldn't admit that we represented the majority, that what we
did was get the majority of the people signed for a duck dinner. That if he
would give the people a dinner, they would all sign for him.
Then I said, well, you do admit that we have the majority of the cards and
Mr. Avellino said, you can go wipe your . with the cards . . that he had
freedom of speech and he could say anything he wanted to and that he was
doing just that and he was opening up against us in the factory
Then Mr. Del Mastro said, "The more you stir the pot, the worse it stinks."
Then I turned to Mr Del Mastro and I said, "Well, you agree to check the
cards against the payroll signatures and if you say that we have a majority,
would the firm then, would River Togs then recognize us?
And he refused.
Then Mr. Avellino again said he was losing a great deal of money and that
he had maybe a week or ten days work left in the shop, that his jobber told him
to send work back, he was going to finish out the work and close down
* * * * * * *
Then Mr. Del Mastro went back into the restaurant. Mr. Koozman and I
started leaving for the parking lot and Mr. Avellino, Junior followed and then he
engaged us in conversation while we were getting into the-our car Mr. Avel-
lino asked if we knew how much money he had lost in River Togs, that he had
moved to Riverhead to give employment to a distressed area. That he was
very much upset that he couldn't get a learner's permit, he couldn't get a small
business loan and that his accountant for River Togs had just finished filling
out the W-2 forms and he had filled out 299 W-2 forms The turnover was
very high, the people didn't know how to sew and he asked me how could he
pay six paid holidays and two weeks vacation and 65 percent, $1.80 minimum
when he is working for a non-union jobber
I told Mr Avellino we have a number of union contractors working for
jobbers who are non-union and the contractors assume these responsibilities.
Then Mr. Avellino said, "Well, you give me a union jobber with a registra-
tion and I'll run the best union shop on Long Island "
Commencing on or about March 19 the Union established a picket line at the
Respondent's plant.
B. The layoffs
The Respondent laid off employees Frances Kozak and Vera Gaines on March 19,
Carol Ann Kotun on March 22, and Rose Mayo and Cecile Adair on March 24.
The complaint alleges that the above employees were laid off because of their union
activity. The Respondent also laid off employee Angelina Dixon on March 19
Kotun, Gaines, Frances Cratch,14 and Dixon signed union cards at the meeting of
the Union held on March 10. Kotun and Dixon also signed the petitions against the
Union.15 Mayo, Adair, and Kozak signed union cards on February 26, March 3,
and March 6, respectively.
14 The evidence indicates that Cratch was a skirt operator Roth the General Counsel
and the Respondent in their briefs state that she was laid off on March 19 The Respond-
ent's payroll records were received in evidence The records show that Cratch worked and
was paid for 8 hours on March 19 and that she was not ]aid off at any time on or about
that date Cratch did not appear at the hearing as a witness Ave]lino testified to the
effect that Cratch was laid off on March 19 , that after she was told of her layoff, "she
stayed around all day [without pay) and she watched the front maker working and she
picked up some ideas" , that (Martin and Mastriont) believed that Cratch had initiative
and wanted to learn and that she and Dixon would be good "trainees" for the semi-section
operation , and that for this reason they were recalled to work on March 22
15 In her brief the General Counsel states that Cratch was a petition-signer The peti-
tions, which were received in evidence, show this not to be the case
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gaines was recalled to work on April 9. Kozak was notified to report for work
on April 12 but did not return. Kotun returned to work on April 19. Adair, who
was notified to report for work on April 15, did not return until April 19. Mayo
was recalled to work on April 26. She was discharged by Avellino on April 29.
On March 17 or 18 "many" skirts were removed from the plant Employee
Gaines noticed this and asked Supervisor Mastrioni if the few remaining skirts were
the only ones that the skirt operators had to work on. Mastrioni replied, "Yes, the
rest is going back . . . that's the way you want it." When Cratch, Gaines, and
Dixon finished work on these skirts after several hours of work on March 19, Gaines
and Dixon were laid off.16
Between March 16 and 18, about three machines were removed from the Re-
spondent's plant, one of which was the "merrow" machine used by Kotun 17 One
of the employees asked Supervisor Mastrioni why the machinery was being removed
Mastrioni replied, "because of the union." 18
When Gaines, Kotun, and Mayo were laid off, they were asked to write their
names and telephone numbers on a slip of paper. This had not been required when
they had been laid off previously. A change to a semi-section operation was not
mentioned to Gaines and Kotun at the time of their layoffs. When Martin laid
off Mayo, he told her that the plant was changing to semi-section and would not
do complete section any more, 19 that he was going to recall the laid-off employees
"One at a time to retrain them" for semi-section; that since she was an operator
who had performed "most of the work" needed for semi-section, he probably would
recall her the following week; and that there was not the usual amount of work
in the plant since a jobber "because of the union ... had pulled some dresses back."
Kozak called Martin on March 24 He told her that the plant did not have any
skirts, and that he would call her "in a day or so." She did not thereafter hear
from Martin until he notified her to report for work on April 12. At that time he
told her that the plant was on semi-section and that she would have "to speed up or
else " 20
Between March 24 and April 9 two employees worked for about 1 week on
skirts. They had not worked on skirts before, had to be instructed for the work
by Supervisor Mastrioni, and were "very slow." 21 Employee Mordasiewicz was
hired on April 9.22 She could not speak English, had to be trained by Supervisor
Mastriom, and worked on skirts.
Kotun's prmcinal job before her layoff was "merrowing facings." Her piece-
rate earnings on this job were considerably above the minimum wage during almost
every week of her employment.23 She was recalled to work by Martin. At the time
he told her that the plant was operating under semi-section, and that she would
have to work on "the whole top or just the skirt." 24 She worked under the semi-
section system on the skirts after her recall. She did not like this work because it
was difficult and her piece rate was not "high enough." 25 On more than one occa-
19Kozak , who was not at work during the week ending March 19, received word of her
layoff through Kotun, her daughter
17 Kotun testified that she was the only employee who regularly performed merrowing
work , and that another merrow machine was left in the plant
18 Mayo testified to the above without contradiction
19 Employee Alice Wright testified that after Gaines was laid off , she saw Supervisor
litastrioni train employees for semi-section work
20 The Respondent 's payroll records disclose that Kozak's production was consistently
poor and considerably below the minimum wage every week
21 Wright testified without contradiction to the above She further testified that the
skirts in question had "two seams, " the same as those produced before the layoffs. that
she pleated the skirts after the above employees seamed them , that they held up her pro-
duction because of their slowness : and that when Gaines and Kozak had performed the
seaming operation , she was not held up In her production
22 The record shows that employee Rivera was hired on March 15 and that her employ-
ment was terminated on March 25 Avelhno testified to the effect that after March 11
and while employees were laid off lie instructed his supervisors to hire "anybody coming
in" the plant " with any kind of experience "
22 Between March 1 and the date of her layoff , Kotun worked 40 hours each week, with
weekly earnings between $63 10 and $71 27 The minimum wage for 40 hours was $50
21 The record shows that no merrowing work was performed in the plant , after Kotun's
layoff
23 F'or the weeks ending April 23 and 30 her weekly piece -rate earnings for a 40-hour
week were $ 17.14 and $2911, respectively . She quit her job on May 3 On that day her
earnings were equal to the minimum wage
RIVER TOGS, INC. 75
sion she asked Supervisor Mastrioni to transfer her to work other than semi-section.
Mastrioni refused, saying that there wasn't any other work available.26
Mayo's main job before her layoff was on skirts. When she returned to work on
April 26, she was assigned to skirts, on the same job that Kotun had. During her
first 3 days of work her piece rate earnings for 24 hours were $17.22.27 She com-
plained to Supervisor Mastrioni and Martin about her machine, saying that it was
"too slow" and kept her production down, and asked for her old one or a "faster"
machine. She was told that her old machine was out of order. After she had
worked about 21/2 days she was assigned to a "faster" machine.
On April. 29 Mayo was called to Avellino's office. He told her that he had been
going over the payroll record, that she had not been making the minimum wage,
that he had "too much make-up pays" for her, that he had called her back to re-
train her, and that she would have to "put out just a little more effort into the job."
He asked her if she was going to make her "quota" for that day. She said that she
would not 28 Mayo said that she would not have come back to the plant if she had
been able to find another job, that she did not like working in the plant, and that
the only reason she returned was because she did not want to lose her unemploy-
ment benefits. Avellino asked her, "Is that the way you feel about it?" Mayo re-
plied, "That's the way I feel about it." Avellino then discharged her.29
The respondent does not contend that the layoffs were due to a lack of work, since
there were approximately 6,000 dresses "of an A-line style" in the plant as of March 19.
In substance, Avellino testified as to the reasons for the layoffs that the A-line
dresses had no skirts; that since production in the plant was from 2,000 to 2.500
dresses per week, the plant had no need for skirt operators for 2 or 3 weeks; that
when he notified one jobber of the Union's campaign, it requested that 1,000 dresses
(with skirts) be returned; that at the same time since the Respondent was losing
money under the complete section operation, he decided to change to "semi-section"
where the operators would perform several operations on one garment; 30 that after
consulting with his supervisors, he also decided to lay off the skirt operators as their
work ran out and to recall them after the other operators had been retrained; and
that the A-line dresses did not require any merrowing. He testified to the effect
that he discharged Mayo because of her bad "attitude" after her recall and her "in-
subordination" and attitude during her conversation with him.
There are persuasive facts and arguments on each side of the question of motiva-
tion in the layoffs. From the record it appears that Avellino knew which employees
were attending the union meetings.31 There was no lack of work; and Avellino, by
his own admission, hired employees and was looking for new employees "with any
kind of experience" during the time in question. From this it would appear that
he would have trained the employees for semi-section work instead of laying them
off Avellino's testimony indicates that at least to some degree performance was
taken into consideration since it was decided to retain Cratch and Dixon because
they were considered potential producers under the semi-section operation.
However, the Respondent's records show that Cratch and Dixon, along with
Kozak, Adair, and Mayo, all were poor producers. If performance was considered,
it would appear that Avellino at least would have retained Gaines, who was a better-
than-average producer with few make-up pays, and Kotun, a superior producer.32
Further, the evidence shows that at sometime between March 2 and April 9 and
before any of the laid-off employees were recalled two employees who were slow
and needed training worked on skirts for about 1 week. The above supports the
General Counsel's case.
2 Kotun testified that at this time employee "Marie" asked for and received other work
which was not semi-section , such as putting bows on jackets
r The payroll record reveals that Mayo' s weekly piece-rate earnings before her layoff
were Consistently poor. -
28 The payroll record shows that Mayo 's piece-rate earnings on April 29 were $5 10 for
61/ hours.
2DTiie above conversation is based upon credited portions of the testimony of both Avel-
lino and Mayo . Testimony to the contrary is not credited
so Contrary to the General Counsel's contention, the record reveals that the Respondent
started to train its employees for the semi -section operation immediately after the first
layoffs
31 Avellino ' s conversation with Banyai on March 17 indicates that he knew Kozak to be
an active adherent of the Union
32 Avellino testified to the effect that he considered merrowing a simple operation
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It does not appear that any of the laid-off employees were more active on behalf
of the Union than others in the plant Their activity was limited to signing cards,
attending union meetings, and talking in favor of the Union to other employees.
Cratch and other poor producers who signed union cards, such as Margaret Bloem,
were not laid off, Neither Cratch nor Bloem signed the antiunion petitions. Yet
Dixon and Kotun were laid off after signing the petitions. If Avellino's purpose in
the layoffs was to discourage union membership and activity, it would appear that
in order to make the picture crystal clear to the employees he would have laid off
Cratch and would not have laid off Dixon, even for a half day, and Kotun. More-
over, the evidence shows that the change to semi-section was motivated by economic
considerations; and that the employees were not laid off at the same time, but at
different times as their skirt work ran out.
I believe that the Respondent's motives are suspect. But suspicion does not justify
an inference of illegal motivation. Accordingly, from all of the evidence I find
that the General Counsel failed to sustain the burden of proving that Kozak, Gaines,
Kotun, Mayo, and Adair were laid off in violation of Section 8(a)(3) of the Act.
The General Counsel also contends that Mayo's discharge on April 29 was viola-
tive of the Act. As related and found above, both Mayo and Kotun were working
on skirts under semi-section at the time of the former's discharge The piece-rate
earnings of both on this work were poor, with large make-up pays. In view of
Kotun's past performance, it would appear that a low piece rate was involved.
However, Kotun made the minimum wage on her last day of work. Although Mayo
was an experienced skirt operator, her production on this job did not improve It
was no better or worse than it had been on skirt work before her layoff. This serves
to explain why Avellino called her to his office. Under the circumstances I find that
Mayo was discharged for cause.
C. The refusal to bargain
The complaint alleges an appropriate unit of "all production and maintenance
employees of Respondent, exclusive of office clerical employees, guards and all
supervisors." This susbtantially is the unit claimed by the Union in its letter of
March 11 to the Respondent. During his conversations with Banyai, Avellino did
not contest the appropriateness of this unit The Respondent contends that a unit
including the employees of Junior Sportswear is appropriate. This contention is
rejected. Upon all of the evidence I find that the unit alleged in the complaint is
appropriate for the purposes of collective bargaining within the meaning of the Act.
As of March 11 and 12 there were 49 employees in the appropriate unit including
Albert Mastrioni, the husband of Supervisor Mastrioni, but excluding Marlene
Hobson. Albert Mastrioni's name is not listed in the Respondent's payroll records.33
At the hearing the Respondent refused to take a position as to his supervisory or
nonsupervisory status under the Act. Mastrioni did not appear as a witness at the
hearing. Employee Mildred Bartlett, called as a witness by the General Counsel,
testified without contradiction that Mastrioni was a presser Accordingly, I find
that he should be included in the unit
In her brief the General Counsel contends that Hobson should be included in
the unit. The Respondent contends otherwise, pointing out that Hobson's employ-
ment was terminated permanently prior to March 11. The Respondent's payroll
records disclose that Hobson last worked on March 9 and that she was not em-
ployed by the Respondent thereafter. For this reason she had been excluded from
the unit.
The General Counsel introduced into evidence 28 authorization cards dated on
or before March 10, including one for Hobson. Since Hobson has been excluded
from the unit, her card cannot be counted. In its brief the Respondent contends that
the authorization cards of Suchto, the two Rodziewicz sisters, Albert Boler, and Tolar
also cannot be counted.
Suchto testified that she did not understand English; that at the union meeting
held on March 10 she signed a union card; and that she signed it after Kozak ex-
plained in Polish that "they wanted to know how many people were here." As
related and found above, the Rodziewicz sisters, who did not understand or speak
English, brought their cousin to the meeting as their interpreter. This person did
not appear at the hearing as a witness. Janina and Helen Rodziewicz both testified,
in substance, that Kozak told them that they had to attend a "meeting" on March 10;
331t appears that Mastrioni was excluded because the Respondent considered him as the
"head presser"
RIVER TOGS, INC. 77
that at the meeting their cousin told them to sign the union cards without explaining
them; that although "a man" was talking in English , their cousin did not interpret
or explain to them at the time; and that they did not know what the cards were for
when they signed them.
I do not credit the above testimony of Suchto and the Rodziewicz sisters The
testimony in this connection of Banyai , Rhatigan, Kozak, and Kotun , whom I credit,
establishes that Banyai paused during his talk in order that his statements could be
interpreted to the Polish employees , that this was done, and that the purpose of
the authorization cards was explained to them before they signed them.
With respect to Boler's card , Mabel Brigmon, an employee of Junior Sportswear,
testified credibly that she rode to and from work with a person whom she called
"Al"; that she did not know his last name; that he worked for the Respondent; that
she had known him "for quite a while"; that one of the Respondent 's female em-
ployees asked her to give "Al" a blank authorization card "because he wanted one";
that she gave the card to Al; that at sometime before the second meeting of the
Union ( March 10 ) Al returned the card to her completely filled out; that he told
her at the time to give the card to Rhatigan because he could not attend the meet-
ing; and that she gave the card to Rhatigan at the second union meeting . Brigmon
identified the card of Albert Boler , dated March 8, 1965 , as the card in question.
In its brief the Respondent points out that Boler's card does not have a receipt stamp
of the Board on its reverse side , and that all of the other cards have such stamps,
dated March 11. The Respondent argues that "apparently" the card was not received
at the second union meeting because of the above and also because Banyai testified
that he counted 26 cards at that meeting . However, Banyai further testified, "We
had at least 26. Maybe more." 34 The absence of the Board 's receipt stamp on
Boler's card serves only to put in question the date that Boler signed the card. In
view of Brigmon 's uncontradicted testimony , I find that Boler signed the card on the
date noted , and that it counts as a valid card.
Constance Woodruff, a representative of the Union , testified without contradic-
tion that at the second union meeting Tolar borrowed her pen in order to fill out
an authorization card , that she watched him as he filled out the card , and that he
gave it to her. The card is dated March 9. Woodruff was unable to explain why
it was not dated March 10. Employee Alice Wright testified to the effect that a
few days after the first union meeting she solicited Tolar to sign a union card; that
when he said he was interested in the Union , she gave him a card; that he returned
the card to her the following day; and that she never turned it over to the Union
The Respondent contends that Tolar 's card cannot be counted because of "these
explicable circumstances ." Since Woodruff identified the card in question , the Re-
spondent 's contention is rejected I find that it counts as a valid card.
The undisputed evidence in the case shows that Albert Mastrioni at all times
material herein was a member in good standing of the Union. In my opinion, this
fact raises the presumption that Mastrioni authorized the Union to represent him
for the purposes of collective bargaining . However, aside from the question of the
validity of Mastrioni 's designation , the evidence shows that 27 employees out of 49
in the appropriate unit signed cards on or before March 10. Accordingly, I find
that on and after March 10 the Union represented a majority of the employees.
In its brief the Respondent contends that Kotun's signing of the antiunion peti-
tion "amounts to a revocation of her card ." The evidence shows that other em-
ployees who signed union cards, such as Dixon , also signed the petitions. I find
that any defections from the Union 's ranks did not affect its majority , since such pos-
sible defections were caused by the Respondent 's unfair labor practices.
In its letter of March 11 the Union notified the Respondent that it had been desig-
nated as the collective -bargaining representative by a majority of the employees,
requested recognition , and demanded that the Respondent meet with it in order to
negotiate a contract . When Avellino spoke to Banyai on March 12 , he questioned
neither the unit nor the majority. Although Banyai repeated the Union 's demands
for recognition and bargaining and offered to prove the majority by showing
Avellino the designation cards, Avellino 's only answer was that he would consider
recognition of the Union only if it provided him with a union jobber . He did not
answer Banyai 's suggestion that he agree to a consent election. Avellino gave
substantially the same answer to Banyai 's demands when they met on March 17.
However, at this meeting he questioned the Union 's majority and claimed that the
employees signed the union cards in order to get a "duck dinner." That Avellino
44 Including Hobson ' s card, there are 27 cards with the Board 's receipt stamp
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not have a good-faith doubt on the majority question is indicated since at the
close of the conversation he in effect offered to recognize the Union when he told
Banyai, "Well , you give me a union jobber with a registration and I 'll run the best
union shop on Long Island."
In conclusion , the evidence shows that on and after March 12 the Respondent
refused to recognize and bargain with the Union ; and that starting on March 10
the Respondent engaged in conduct which has been found above to be violative of
Section 8 ( a)(1) of the Act . These unfair labor practices negate the Respondent's
claim of good faith and manifest an effort to undermine the Union 's majority.
Accordingly , I find that the Respondent 's refusal to recognize and bargain with the
Union on and after March 12, 1965, was violative of Section 8(a)(5) and (1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the Respondent 's operations described in section I, above, have a close,
intimate , and substantial relationship to trade, traffic , and commerce among the sev-
eral States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent has refused to bargain with the Union in
violation of Section 8(a)(5) and ( 1) of the Act , it will be recommended that the
Respondent be ordered to bargain with the Union upon request as the exclusive rep-
resentative of all of its employees in the appropriate unit concerning rates of pay,
wages, hours , and other terms and conditions of employment , and if understandings
are reached , embody such understandings in a signed agreement.
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. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
2. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act , the Respondent has engaged in
unfair labor practices within the meaning of Section 8 ( a)(1) of the Act.
3. All production and maintenance employees of Respondent , exclusive of office
clerical employees . guards, and all 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.
4. The Union has been at all times on and after March 10 , 1965, the exclusive
representative of all employees in the aforesaid appropriate unit for the purposes
of collective bargaining within the meaning of Section 9 ( a) of the Act.
5. By refusing at all times on and after March 12, 1965, to recognize and bargain
collectively with the Union as the exclusive representative of its employees in the
aforestated appropriate unit, the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and ( 1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
7. The General Counsel has failed to sustain the burden of proving that the lay-
offs of Kozak, Gaines, Kotun, and Adair and the layoff and discharge of Mayo were
violative of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, and conclusions of law and
upon the entire record in the case , I recommend that the Respondent, its officers,
agents, successors and assigns , shall be ordered to:
1. Cease and desist from:
(a) Interrogating its employees concerning their membership in or activities on
behalf of the Union or making threats of reprisal because of such activity.
(b) Engaging in or creating the impression of surveillance of the union activity
of its employees.
RIVER TOGS, INC. 79
(c) Refusing to bargain collectively with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment with the Union as the
exclusive representative of its employees in the appropriate unit found above.
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form labor organizations, to join
or assist the above-named labor organization, or any other labor organization, to
bargain collectively through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities, except to the extent
that such rights may be affected by an agreeement 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.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request bargain collectively with the Union as the exclusive representa-
tive of the employees in the above-described appropriate unit with respect to rates
of pay, wages, hours of work, and other terms and conditions of employment, and
embody in a signed agreement any understandings reached.
(b) Preserve and, upon request, make available to the National Labor Relations
Board or its agents for examination and copying, all records necessary for the deter-
mination of the amount of backpay due under these recommendations.
(c) Post at its plant in Riverhead, New York, copies of the attached notice marked
"Appendix." 35 Copies of said notice, to be furnished by the Regional Director for
Region 29, after being duly signed by the Respondent or its authorized representa-
tives, shall be posted by Respondent immediately upon receipt thereof and main-
tained by it for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Region Director for Region 29, in writing, within 20 days from
the date of the receipt of this Decision, what steps it has taken to comply herewith.36
IT IS ALSO RECOMMENDED that the complaint be dismissed insofar as it relates
to the layoffs of Kozak, Gaines, Kotun, and Adair and to the layoff and discharge
of Mayo.
31 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
38 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recomended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their membership in or
activities on behalf of Local 107, International Ladies' Garment Workers'
Union, AFL-CIO, or of any other labor organization, or make threats of
reprisal because of such activity.
WE WILL NOT engage in or create the impression of surveillance of the union
activity of our employees.
WE WILL, upon request, bargain collectively with the above-named labor
organization as the exclusive bargaining representative of all employees in the
following unit with respect to rates of pay, wages, hours of employment, and
other conditions of employment, and if understandings are reached, embody
such understandings in a signed agreement . The bargaining unit is:
All production and maintenance employees, exclusive of office clerical
employees, guards, and all supervisors as defined in the Act.
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor or-
ganizations , to join or assist Local 107, International Ladies' Garment Workers'
Union, AFL-CIO, or of any other labor organization , to bargain collectively
through representatives of their own choosing, to engage in concerted activities
for the purposes of collective bargaining or mutual aid or protection , or to re-
frain from any or all such activities , except to the extent that such rights 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.
All our employees are free to become , remain, or refrain from becoming or re-
maining members of any labor organization.
RIVER TOGS, INC.,
Employer.
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 pro-
visions, they may communicate directly with the Board 's Regional Office, 16 Court
Street, Fourth Floor, Brooklyn, New York 11201, Telephone 596-5386.
Purolator Products , Inc. (Van Nuys Plant ) and International
Union , United Automobile , Aerospace and Agricultural Imple-
ment Workers of America , AFL-CIO
Purolator Products , Inc. and International Union , United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America, AFL-CIO and Independent Employees Association of
Purolator Products , Inc., Party in Interest . Cases 31-CA-10
(forrnerly 21-CA-5698) and 20 (formerly 01-CA-6108). July 5,
1966
DECISION, ORDER, AND DIRECTION OF ELECTION
On May 6, 1965, Trial Examiner Eugene K. Kennedy issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision.
The National Labor Relations 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 entire record in these cases, including the Trial Exam-
iner's Decision, and the exceptions thereto, and hereby adopts the
160 NLRB No. 9.