Russ Togs, Inc.

National Labor Relations Board - Board Decisions

Dec 15, 1980

253 N.L.R.B. 767 (N.L.R.B. 1980)

RUSS TOGS, INC.
Russ Togs, Inc. and Hector Ortega. Cases 29-CA-
6589 and 29-CA-6672
December 15, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 3, 1980, Administrative Law Judge
Robert M. Schwarzbart issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
Charging Party filed a cross-exception and a brief
in support of its cross-exception and in response to
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
i Respondent and the Charging Party have excepted to certain credi-
bility findings made by the Administrative Law Judge It is the Board's
established policy not to overrule an administrative law judg's resolutions
with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect Stand-
ard 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 The Administrative Law Judge concluded that Respondent violated
Sec. 8(aX3) and (I) of the Act by laying off and refusing to recall Hector
Ortega and Wing Shung Lam principally for their activities in encourag-
ing employees to file grievances concerning wage rates. We agree that
the violations occurred but analyze the case based on our recent decision
in Wright-Line A Division of Wright-Line. Inc, 251 NLRB No 150 (1980)
We find that the General Counsel made a prima facie showing that the
protected activities of Ortega and Lam were a motivating factor in Re-
spondent's decision to lay them off permanently The record reveals that
Respondent's supervisor, Morris Sadicario, summoned Ortega to his
office 2 days after Ortega began to advise other employees of their wage
rights under the collective-bargaining agreement on or about February
15. 1978 At that time, Sadicario coercively interrogated Ortega concern-
ing these discussions with the other employees, threatened Ortega with
discharge, and transferred him to a position that involved more arduous
duties. The harassment by Respondent extended to Lam as well; he was
also coercively interrogated and transferred, and both men were subject-
ed to extremely close supervision. In addition, on March 21, 1978, Sadi-
cario, in response to Lam's inquiry as to why he had not been recalled,
stated that Lam should have come to him with his wage claims rather
than going around speaking to everyone else Respondent's other 8(aXI)
activities, particularly Sadicario's surveillance of the employees who
were going to the union hall to file grievances, are further evidence of its
animus toward the protected grievance activity, This evidence submitted
by the General Counsel effectively shifted the burden to Respondent to
show that it would have laid off Ortega and Lam even in the absence of
their clearly protected activity. Respondent contends that it disclharged
Lam and Ortega because they urged other employees to engage in a
slowdown, and presented witnesses who testified that this activity was re-
ported to Respondent as early as February 2, 1978. Respondent received
other reports throughout February and early March, but did not begin its
pattern of harassment of Ortega and Lam until it learned that the two
men were urging employees to file wage grievances, and did not lay
them off until March 9, 1978, after it raised employees' wages to the level
agreed upon in the contract. Not only does the factor of timing under-
mine Respondent's defense, but also Respondent gave shifting reasons for
253 NLRB No. 99
Judge and to adopt his recommended Order, as
modified herein.3
In adopting the Administrative Law Judge's con-
clusion that Respondent violated Section 8(a)(3)
and (1) of the Act by laying off and refusing to
recall Hector Ortega and Wing Shung Lam, we
agree that we should not defer to the arbitration
award concerning these layoffs because it does not
meet the requirements of the Board's decision in
Spielberg Manufacturing Company.4
The record reveals that Lam and Ortega filed
grievances stating that they were not being paid
the wage rate as set forth in the collective-bargain-
ing agreement, and urged other employees to take
the same action. In this context, they also urged
employees to engage in a slowdown. The griev-
ances were not filed through the shop steward,
Miguel Lopez, 5 but were presented to the union
president, Henry Prastien, at the union hall. Re-
spondent received reports on Lam's and Ortega's
grievance activities and urging of a slowdown from
several sources, including Lopez. Once it learned
of their grievance activity, Respondent immediate-
ly embarked on a pattern of harassment of Lam
and Ortega. 6
Shortly after some employees' wages were raised
to the contract level, Respondent laid off Lam and
Ortega; the two men were told they were being
laid off because there was not enough work. Super-
visor Morris Sadicario admitted that Lam and
Ortega were laid off in the hope that they would
the layoffs. Ortega and Lam were initially told by Sadicario that they
were being laid off because there was not enough work. After Lam dis-
covered that other employees were working overtime while he and
Ortega had not been recalled, Respondent claimed that Lam and Ortega
were not being recalled because they had intimidated a worker Finally,
at the arbitration hearing, Respondent took the position that the layoffs
were motivated by Lam's and Ortega's speeches urging a slowdown In
view of the foregoing, we conclude that Respondent has failed to meet
its burden of showing that the same action would have taken place in the
absence of Lam's and Ortega's protected activity, and therefore affirm
the Administrative Law Judge's conclusion that the layoffs violated Sec.
8(a)(X3) and (1).
3 We shall modify the Administrative Law Judge's reinstatement order
to conform to Board language by deleting the words "if available," and
shall modify the notice accordingly.
4 112 NLRB 1080 (1955)
5 Lopez did not possess a copy of the collective-bargaining agreement,
and did not know the correct wage rate There was evidence that Lopez
had been shop steward for over 20 years and had not filed one grievance
in the 10-year period preceding the incidents outlined herein The Ad-
ministrative Law Judge found that Lopez was a supervisor within the
meaning of the Act, and that a conflict of interest existed between his
supervisory responsibilities and his duties as shop steward, as shown by
his reporting of Lam's and Ortega's activities to management. The Ad-
ministrative Law Judge concluded, and we agree, that Respondent's deal-
ing with Lopez as shop steward violated Sec 8(a)2) of the Act.
a This harassment took the form of coercive interrogation, threats of
discharge, transfer of Ortega and Lam to positions requiring more ardu-
ous duties, extremely close supervision of Ortega and Lam, surveillance.
and the coercive searching of an employee The Administrative Law
Judge found, and we agree, that Respondent's actions as described above
violated Sec. 8(a)(1) of the Act
767
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not attempt to return to work. Lam made several
attempts to return until Prastien informed him that
Respondent would not recall either him or Ortega
because they had intimidated a worker. Both men
grieved their discharges.
The grievances proceeded to arbitration. Two
weeks before the date set for the hearing, Lam
called Abraham Schlesinger, the attorney for the
Union, and attempted to make an appointment with
him to discuss the case. Schlesinger refused to meet
with Lam at that time, and told Lam, "I represent
the Union, not you." When Lam and Ortega finally
met with Schlesinger 2 days before the hearing,
they told Schlesinger they had several witnesses to
call in their behalf. Schlesinger took the position
that these witnesses would not be necessary. He
told Lam and Ortega that the hearing was for the
sole purpose of allowing Respondent to put on its
case, and that the hearing would be adjourned as
soon as Respondent had finished doing so. At the
hearing, Respondent presented several witnesses
who stated that Lam and Ortega had urged a slow-
down. Lam and Ortega were the only witnesses in
their own behalf. Lam again urged Schlesinger to
present witnesses for his case, and Schlesinger
again refused.
The arbitrator found that Lam and Ortega were
discharged for cause in that they had urged other
employees to engage in a slowdown. Respondent
submitted this award as an affirmative defense to
the allegation in the complaint that it violated Sec-
tion 8(a)(3) and (1) by discharging Lam and
Ortega, and urged that the Board defer to this
award.
As stated above, we will not defer because we
find that the arbitration proceedings were not fair
and regular. The Union's role as representative of
the employees was called into question even before
Lam and Ortega were laid off. When the two men
discovered that employees were not being paid the
contract wage and urged the employees to grieve
the underpayment, it was their own shop steward
who reported their activities to Respondent with-
out even discussing the matter with them. Steward
Lopez also informed management that Lam and
Ortega were telling employees to slow down in
protest. After Lam and Ortega were discharged
they were told by the Union that that their dis-
charges would be taken to arbitration with a union
attorney representing them. When Lam attempted
to contact Union Attorney Schlesinger to discuss
the case, Lam was told that the representation was
for the Union, and not the dischargees. Inherent in
Schlesinger's remark is the recognition of the fact
that the interests of the Union and the dischargees
diverged. The accuracy of this assessment cannot
be seriously doubted in a case where, as here, Re-
spondent contends that the report of Union Ste-
ward Lopez to management concerning the activi-
ties of Lam and Ortega contributed to the action
taken against them.
The Board has held that it will not defer to the
arbitration process when the Union's interests are
adverse to those of the employees, 7 and it has re-
fused to defer to existing arbitration awards where
such a situation exists.8 This case clearly falls
within that category. We are not willing to exam-
ine the union attorney's strategy in conducting the
hearing and therefore do not in any measure base
our finding that the proceedings were unfair on his
decision not to call witnesses for Lam and Ortega.
Rather, we find from the totality of the circum-
stances, particularly Lopez' conduct before the dis-
charges and Schlesinger's statement of position to
Lam, that the Union's interests were clearly in sub-
stantial conflict with those of Lam and Ortega, and
the proceedings were therefore not fair and regu-
lar. In addition, the arbitrator's award was repug-
nant to the Act because it permitted the discharges
to stand even though, as the arbitrator believed,
Respondent urged or admitted that they were
caused by activity protected by the Act; i.e., Lam's
and Ortega's filing of grievances. That, contrary to
what the arbitrator stated, Respondent may not
have urged this reason to the arbitrator as a de-
fense (wisely, if that is the case) does not change
the arbitrator's preception that this was in fact a
reason for the discharges, nor his decision that Re-
spondent could make the discharges with impunity,
nor the repugnance of such a decision to the Act.
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,
Russ Togs, Inc., Queens, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer Wing Shung Lam and Hector Ortega
immediate and full reinstatment to their former po-
sitions or, if those positions no longer exist, to sub-
stantially equivalent positions, with the wage rate
they enjoyed at the time they were terminated,
' Kansas Mea Packers. a Division of Arisro Foods, Inc., 198 NLRB 543
(1972).
' The Mason and Dixon Lines. Inc., 237 NLRB 6, 12-13 (1978);
7:I.ME-DC. Inc., 203 NLRB 1141, 1149 (1973), enfd. 504 F2d 294 (5th
Cir 1974).
76X
RUSS TOGS, INC.
plus any increase, and without prejudice to their
seniority or other rights and privileges previously
enjoyed, and make them whole for any losses they
may have suffered by reason of the discrimination
against them in the manner set forth in the section
of this Decision entitled 'The Remedy."'
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER PENELLO, dissenting in part:
I regret that I must take a separate position in
this case. Inasmuch as I am in complete agreement
with my colleagues as to the findings of violations
of Section 8(a)(l), (2), and (3) of the Act, as well as
the conclusion that we should not defer to the arbi-
tration award, it is unfortunate that we cannot
agree upon the rationale for that refusal to defer. I
find that I am compelled to set the record straight
as to the proper basis for this refusal. To this end, I
must dissent.
In 1955, in Spielberg Manufacturing Company,9
the Board adopted a a doctrine of deferral to arbi-
tration awards as long as three requirements are
met: The proceedings are fair and regular, all par-
ties agree to be bound, and the arbitration decision
is not clearly repugnant to the Act. My colleagues
here weaken this policy of deferring to private
mechanisms for resolution of disputes by going
beyond the requirements set forth in Spielberg.
I agree with my colleagues that this arbitration
did not meet our standards for deferral under Spiel-
berg on the ground that the proceedings were not
fair and regular. We need go no further in our ex-
amination of the award. My colleagues, however,
insist upon doing so, and I cannot agree with their
conclusion that the award was repugnant to the
Act.
A close review of the transcript of the arbitra-
tion proceeding and the award itself reveals that
the arbitrator initially erred in characterizing Re-
spondent's position in the arbitration proceeding. In
his award, the arbitrator set out four contentions of
Respondent: () Lam and Ortega were discharged
because they encouraged fellow workers to slow
down the pace at which they were working and to
abstain from working overtime; (2) Lam and
Ortega abused and intimidated employees who did
not agree with their views; (3) the conduct of Lam
and Ortega violated the "no-strike" clause of the
collective-bargaining agreement; and (4) Lam and
Ortega harassed Respondent by encouraging fellow
employees to file grievances. The arbitrator was
mistaken as to the fourth contention; at no time
during the proceedings did Respondent refer to the
dischargees' grievance activity as a reason for the
9 112 NLRB 1080, 1082 (1955)
discipline. Rather, it was Lam and Ortega who
argued that their protected activity was the reason
for the discharges.
The arbitrator went on to examine the testimony
at the arbitration proceeding and concluded that
Lam and Ortega were actually discharged for en-
couraging fellow workers to engage in a slowdown
by using threats and intimidation, and that this ac-
tivity constituted just cause for discharge. He
found that the "no-strike" clause of the contract
was not breached by Lam and Ortega as they were
not parties to the contract.
As to the grievance activity, the arbitrator
stated: "[R]eferral of employees by Lam and
Ortega to the Union for the purposes of filing
grievances is not a reason for discipline. In order to
maintain a healthy labor relations atmosphere,
workers must be free to solicit aid and advice from
their Union and to encourage others to do like-
wise."
The Administrative Law Judge found that the
arbitrator "completely disregarded the Respond-
ent's contention at [the] proceeding that Lam and
Ortega were terminated, in part, for having encour-
aged 'fellow employees to file grievances with the
Union,' activity protected under the Act." The Ad-
ministrative Law Judge also stated that the arbitra-
tor found that a reason for the discipline of Lam
and Ortega was their protected activity and then
disregarded this finding in his conclusion that Lam
and Ortega were discharged for cause. The Admin-
istrative Law Judge thus concluded that the award
was repugnant to the policies of the Act.1 0
I cannot agree with the Administrative Law
Judge's findings. Even though the arbitrator was
mistaken about Respondent's position in the arbitra-
tion proceedings, a fact which the Administrative
Law Judge failed to discern, the arbitrator clearly
found that the protected activity was not a reason
for the discharges. After stating that the discipline
was in fact motivated by the slowdown activity, he
went on to state that referral of employees to the
Union is not a reason for discipline.
Yet my colleagues agree with the Administrative
Law Judge that this award is repugnant to the Act.
They do not rely on the error of the Administra-
tive Law Judge, who mistakenly stated that the ar-
bitrator "found" that protected activity was a
reason for the discharges. As noted above, the arbi-
trator did not make such a finding. Rather, my col-
'l The Adminstrative Law Judge also concluded that the arbitration
award failed to meet the requirements of Suburban Motor Freight. Inc,
242 NLRH 22 (980) For the reasons set forth in my dissent in that case,
I would not refuse to defer to an arbitration award, in an alleged discrim-
inatory discharge or discipline case, solely because the unfair labor prac-
tice issue was not raised in the arbitration proceeding
769
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leagues state that the award is repugnant because
the arbitrator "believed" that Respondent asserted
the grievance activity as a reason for the dis-
charges, but permitted the discharges to stand.
Had the arbitrator indeed found that the dis-
charges were motivated by the protected grievance
activity and nonetheless concluded that the dis-
charges were for cause, I would not hesitate to join
my colleagues in characterizing the award as
"clearly repugnant to the Act," as enunciated in
Spielberg. However, where, as here, the arbitrator
mistakenly described one of Respondent's positions
and went on to state that employee misconduct
rather than protected activity caused the dis-
charges, my colleagues do injustice to the Spielberg
doctrine by finding the award repugnant.
In this case, we have found that the Union's in-
terests conflicted with those of the dischargees, and
thus the entire arbitration proceeding did not con-
form to the Spielberg "fair and regular" standard.
Having so concluded, an examination of the merits
of the arbitrator's decision is a needless and waste-
ful exercise in which I am compelled to participate
because of the majority's gratuitous statement that
the award is repugnant to the Act.
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.
WE WILL NOT interfere with the administra-
tion of Snow Suits, Ski Wear, Leggings, In-
fants and Novelty Sportswear Union, Local
105, International Ladies' Garment Workers'
Union, AFL-CIO, by recognizing or dealing
with any person as shop steward or other
agent of the Union while that person is our su-
pervisor.
WE WILL NOT coercively interrogate you
about your activities on behalf of the above-
named Union, or any other labor organization.
WE WILL NOT threaten you with discharge
or layoff because of your union and protected
concerted activities, including any efforts you
may make to enforce the collective-bargaining
agreement we have with the above-named
Union.
WE WILL NOT conduct surveillance of your
union activities.
WE WILL NOT subject you to physical
searches because of your union activities.
WE WILL NOT transfer you to other work
stations and to harder duties because of your
union and protected concerted activities.
WE WILL NOT subject you to unusually
close supervision because of your union and
protected concerted activities.
WE WILL NOT discharge, permanently lay
off, or otherwise discriminate against you be-
cause of your union and protected concerted
activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of rights guaranteed under Section 7
of the National Labor Relations Act.
WE WILL offer Wing Shung Lam and
Hector Ortega immediate and full reinstate-
ment to their former positions or, if those posi-
tions no longer exist, to substantially equiva-
lent positions, without loss of seniority or any
other rights and privileges previously enjoyed,
and WE WILL make them whole, plus interest,
for any losses they may have suffered as a
result of our discrimination against them.
Russ TOGS, INC.
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART, Administrative Law
Judge: These cases were heard in Brooklyn, New York,
on April 30, May 1, 2, and 3, and June 11 and 12, 1979.
The charges were filed by Hector Ortega, an Individu-
al. l The complaints,2 consolidated for hearing by an
order dated March 23, 1979, allege that the Respondent
violated Section 8(a)(1), (2), and (3) of the National
Labor Relations Act, as amended, herein called the Act.
The Respondent in its answers denies the commission of
unfair labor practices.
The Issues
1. Whether the Respondent violated Section 8(1) and
(3) of the Act by laying off and refusing to recall its em-
ployees Wing Shung Lam and Hector Ortega because
they tried to enforce the wage provisions of the collec-
tive-bargaining agreement between the Respondent and
Snow Suits, Ski Wear, Leggings, Infants and Novelty
Sportswear Union, Local 105, International Ladies' Gar-
ment Workers' Union, AFL-CIO, herein called the
Union, 3 and led other employees to do the same, or
I The respective charges in Cases 29-CA-6589 and 29-CA-6672 were
filed on August 3 and September 18, 1978.
2 The complaints in Cases 29-CA-6589 and 29-CA-6672 issued on
March 2, 1979, and October 31, 1978, respectively, in inverse order to the
dates of the charges.
3 The Respondent subscribes to the collective-bargaining agreement
through its membership in Infants' and Children's Coats Association, Inc..
Continued
770
RUSS TOGS, INC.
whether Lam and Ortega lost their jobs because they
harassed other employees and encouraged them to
engage in a work slowdown prohibited under the "no-
strike" provision of the contract.
2. Whether the Respondent violated Section 8(a)(l) of
the Act by taking the following actions against its em-
ployees for engaging in protected concerted activities in
enforcement of the wage provisions of the contract:
(a) Coercively interrogating employees.
(b) Threatening employees with discharge, layoff,
and other reprisals.
(c) Subjecting employees to surveillance and
close supervision.
(d) Transferring employees to different job loca-
tions within the plant.
3. Whether the Respondent assisted the Union in viola-
tion of Section 8(aX2) and (1) of the Act by dealing with
Miguel (Mike) Lopez, an alleged supervisor, as sole shop
steward under circumstances which conflicted with the
interests of employees, or whether Lopez was not a su-
pervisor within the meaning of Section 2(11) of the Act.
4. Whether the employment loss by Lam and Ortega
should be deferred to arbitration pursuant to the Board's
policy enunciated in Spielberg Manufacturing Company. 4
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. Briefs,
filed by all parties herein, have been carefully consid-
ered.
Upon the entire record in the case s and my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a New York corporation, at all times
material herein has maintained its principal office and
place of business in Long Island City, Queens, New
York, where it is, and has been at all times material
herein, engaged in the cutting, sale, and distribution of
clothing and related products.
During the year preceding issuance of the complaints
herein, a representative period, the Respondent, in the
course and conduct of its business, purchased and caused
to be transported and delivered to its Long Island City
plant fabrics and other goods and materials valued in
excess of $50,000, of which goods and materials valued
in excess of $50,000 were transported and delivered to its
plant in interstate commerce directly from States of the
United States other than the State of New York.
Upon the foregoing conceded facts, I find that the Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
and Manufacturers of Snowsuits, Novelty Wear, and Infant's Coats, Inc.
an employer association.
4 112 NLRB 1080 (1955).
a Certain errors in the transcript are hereby noted and corrected.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent, engaged in the production of cloth-
ing at its Long Island City, New York, plant, through
membership in Infant's and Children's Coats Association,
Inc., and Manufacturers of Snowsuits, Novelty Wear,
and Infant's Coats, Inc., jointly an employer association,
has recognized the Union as bargaining representative
for certain of its employees.6 The collective-bargaining
agreements current at the time relevant herein, effective
from June 1, 1976, to May 31, 1979, provided for union
security and a grievance procedure culminating in bind-
ing arbitration before an impartial chairman designated in
the contract. The agreement also contained a "no-strike,
no-lockout" provision.
The Respondent's traffic and security manager is
Morris Sadicario, who, in his role as security manager,
supervises four guards. Sadicario's responsibilities in traf-
ficking include general supervision of the shipping area.
The Union's shop steward at this plant during the
events herein was Miguel (Mike) Lopez, whose status
will be discussed below.
B. The Supervisory Status of Miguel (Mike) Lopez-
Facts and Conclusion
The General Counsel and The Union assert that Lopez
is a supervisor within the meaning of the Act and that
the Respondent, among other things, violated Section
8(a)(2) and (1) of the Act by dealing with him as the
Union's shop steward in the plant in ways which con-
flicted with the employees' interest. The Respondent
denies that Lopez is a supervisor and asserts that he
merely was a shipping clerk and its most experienced
employee in that area.
Sadicario identified certain supervisors who serve
under him in overseeing various departments or sections
within the plant-Aurelio Gonzales and Moe Fletcher on
the first floor and Jay Berman and Jack Rampersaiz on
the balcony. While the different sections under each of
these supervisors specialized in diverse types of gar-
ments, personnel assigned to these sections all worked as
order pickers.8 A fifth supervisor, Bruno Campanella,
had responsibility for the dock area, where trucks were
6 The bargaining unit as agreed by the parties includes:
All operators, sample hands, machine pressers, ironers, finishers.
shipping clerks, floor workers, markers, graders and cutters em-
ployed by the Respondent at its Long Island City, New York, plant.
In addition to the Union herein, the International Ladies' Garment
Workers' Union and its Local 10 are also signatories to the contract.
a Order pickers fill various orders by selecting from inventory garment
items, according to specified size, color, and style, in the appropriate
quantities. The selected items generally are hung on garment cart racks
and forwarded for packing and shipment
771
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
loaded.9 Each of these individuals supervised up to 10
employees at different times as assigned by Sadicario. Sa-
dicario, in addition, also personally supervised from 5 to
35 packers.
Lopez has been employed by the Respondent since
1953 and was shop steward from about 1956 until May
1979, when, after the start of the hearing in this matter,
he was forced to resign as steward by Union President
Henry Prastien.
Wing Shung Lam, one of the alleged discriminatees
herein, testified that he initially worked as a marker °0
under Lopez. Lam related that when first hired, in mid-
June 1977, Traffic Manager Sadicario brought him to
Lopez in the shipping area on the first floor of the Re-
spondent's three-story plant, and told Lam that he would
be working for Lopez, which Lam continued to do for
the next 2 months until he received a different job classi-
fication and immediate supervisor.
On Lam's first day with the Respondent, at Lopez' di-
rection, he worked until 1:30 p.m., well past the noon
lunch break, and, later, when Lopez took him for lunch
to an outside cafeteria, Lam was not required to punch
out as was the lunchtime custom. On that occasion,
Lopez told Lam that he was the foreman and, if Lam
worked for him, Lopez would take care of him.
Lam related that he was one of seven markers who re-
ported to Lopez. Lopez alone assigned his daily tasks
and instructed Lam as to when and how to unload
boxes, " and, on one occasion, told Lam to fill in tempo-
rarily as a packer in the packing section which then was
shorthanded.
In the mornings, Lopez usually worked with Lam in
loading and unloading trucks. In the afternoons, howev-
er, while Lam and the others worked and processed
packages on the line, Lopez sat idly at his desk in the
shipping area. If things were busy, however, Lopez
would continue to load and unload into the afternoon.
According to Lam, while some of the markers worked
on small tables, only Lopez had his own desk which held
a telephone and Lopez' personal items. Lopez also used
the desk to store union books, which he sold to the new
members.
In assigning duties, Lopez told Lam and each of the
seven markers employed in that section where to work
each day and whether to unload boxes and place them
on skids or to remove the boxes from the skids and load
them on trucks. He also designated which employees
should mark the packages. Each morning, Lam would
go to Lopez for assignment. Although Sadicario, to
whom Lopez reported, was responsible for the shipping
area, to Lam's knowledge he never directly assigned
work there. On one occasion, Lopez gave Lam the key
" Apart from being identified by title, Campanella was not again re-
ferred to by the Respondent and the record contains no evidence that he
exercised authority over Lopez. This also is true of Shipping Supervisor
Elliott Cohen, who will be referred to in a different connection.
io Markers in the Respondent's shipping department receive packaged
outbound goods, and weigh and add postage as necessary. They then
send the packages to the trucks, which they also help load and unload.
Markers also work on bills of lading and invoices.
Ad Procedurally, in unloading, box numbers on packages delivered to
the Respondent's plant are read aloud and checked off against invoices to
ensure accuracy.
to the Respondent's van, directing him to drive a compa-
ny official to a given destination, and, in two other in-
stances, Lam was sent by Lopez to assist another em-
ployee in making deliveries.
Lam's account of Lopez' duties are to some extent
corroborated by Hector Ortega, the other alleged discri-
minatee. Ortega, who never had reported to Lopez, was
employed principally as an order picker on the balcony
above Lopez' work area.
Ortega testified that, from the front of the balcony
where he mostly worked, he overlooked Lopez' station
and could see him at work. As Ortega was about a city
block away from Lopez' area, he could not hear Lopez'
voice unless raised, but he could see Lopez point and
otherwise gesture to employees as though giving them
instructions. On rare occasions, Ortega would see Lopez
move a box. 12 Lopez' personnel envelo-file 13 notes
Lopez' position as "Ship Super Packer" as of a time pre-
ceding May 1967. These records also reveal that in
March 1978, the period principally considered herein,
Lopez earned approximately 25 percent more per week
than the next most highly paid employee. Although not
reflected in his pay history, Lopez testified that he had
received wage increases when other union personnel did
not.
Lopez and Traffic Manager Sadicario both denied that
Lopez was a supervisor. Lopez testified that he was a
shipping clerk and that he reported directly to Sadicario,
and denied that Sadicario ever had introduced him to
Lam or to any other employee as a supervisor. Since
1953, when Lopez began to work for the Respondent, he
has filled every position in the shipping department and
has continued to perform drivers' tasks around that de-
partment as required, except that he no longer did pack-
ing.
Lopez began each day by loading and unloading the
same truck from the same concern, stacking the cartons.
This usually took all morning and occasionally continued
after lunch. Lopez asserted that he was the only employ-
ee regularly assigned to load and unload trucks, except
that Sadicario assigned different employees to work with
him. 14 Two such employees, Jose Javier Lopez and
Cesar Bueno, appeared as witnesses for the Respondent.
Jose Lopez corroborated Mike Lopez' denials of supervi-
sory status, relating that he, too, reported to Sadicario
with respect to all matters, rather than to Mike Lopez. A
third employee, Louis Enrique Padilla, testified that
while employed by the Respondent as a marker or stock
clerk from October 1977 to early August 1978, when he
resigned his employment, he reported to Sadicario rather
than to Lopez. Padilla related that he did different jobs
12 Early in their respective periods of employment with the Respond-
ent, other employees had informed Lam and Ortega that Lopez was the
shop steward. Each had obtained union membership books from Lopez
and had paid him their dues. Ortega testified that he had stopped paying
his dues to Lopez when, in late 1977, about I week after complaining to
Lopez about his pay scale, he was laid off. After recall, Ortega paid his
dues directly to the Union.
"' Personnel envelo-files are personnel file jackets where employee
wage histories are recorded
4 Initially, Lopez testified that the only employees who assisted him
in loading and unloading trucks were volunteers.
772
RUSS TOGS, INC.
on different days and could not himself decide which job
he was to perform on any given day as his assignments
were constantly changing. Accordingly, Sadicario told
him what jobs to do each day and Lopez assigned his
work when Sadicario was absent. Padilla initially testi-
fied with respect to overtime that he himself could see if
overtime work was required. Sadicario would assign his
overtime if there was any to be done and he was vague
as to whether overtime work was mandatory, 5 which,
in fact, it was not.
Lam's initial job with the Respondent was to assist
Lopez in loading and unloading trucks, but after about 2
months he told Lopez that his back hurt and that he
would have to seek lighter work. Lopez reported this to
Sadicario without recommendation and it was Sadicario
who decided to reassign Lam as an order picker. As Sa-
dicario recalled the incident, Lam could not express him-
self in English at the time well enough to explain his
problem and Lopez was present to help him communi-
cate his request for less heavy work.
In the afternoons, Mike Lopez would assist other ship-
ping department employees, as needed, deciding on his
own where he could be most useful. If necessary, he
would return to loading and unloading any late arriving
trucks as this was his primary assignment. He and the
other shipping clerks, including Bueno and Jose Lopez,
also used the desk in the shipping area to do necessary
paperwork, including preparation of bills of lading and
invoices. Lopez denied that he kept any personal items in
the desk draws, as charged by Lam, except that he did
keep union books and materials stacked on top in con-
nection with his duties as steward. Other shipping clerks,
however, did keep belongings inside the desk.
Lopez was hourly rated as were other shipping depart-
ment personnel and, although Lam and Ortega testified
that they had not seen him do so, he punched a time-
clock and received overtime pay. Contrary to Lam,
Lopez denied that, on Lam's first day, he had excused
Lam from punching out at lunchtime, or that he had
ever sent Lam for coffee.
Lopez testified that he never has had nor exercised au-
thority to hire or fire anyone. He has not given employ-
ees oral warnings, initialed timecards, given employees
permission to leave early, granted or denied leaves of ab-
sence, excused employee lateness, or transferred or
changed the work hours of employees in the shipping de-
partment. All the foregoing were done by Sadicario. Sa-
dicario also decided who would be laid off and recalled.
Lopez denied playing any role in making job assign-
ments, affording promotions, or in making effective rec-
ommendations concerning employees in their work.
According to Lopez, Sadicario determines the jobs to
be performed by new shipping department employees,
and their training depends upon where they are assigned.
New packers are trained by more experienced packers.
I' On cross-examination, Padilla first testified that he worked every
day of the week until 515 p.m. because of required overtime However.
during March and April of 1978. he did not work overtime because there
was not much. He then related that he did not work overtime every day
and that he could not remember when he orked overtime Ultimately,
Padilla testified that he could not remember anything
:e Lopez related that the matter of timecards had come up but once
when he had refused Lam's request to sign his card
Lopez, too, has trained new employees, but so have all
other shipping clerks, including Bueno and Jose Lopez.
Mike Lopez does not attend supervisory meetings.
I do not credit the Respondent's witnesses, specifically
Mike Lopez, Padilla, Cesar Bueno. and Jose Lopez,
where they denied Mike Lopez' authority, as they were
evasive and evidenced selective memories. Mike Lopez
and Jose Lopez initially could not recall having met with
the Respondent's attorney to discuss their testimony
before being called as witnesses. Jose Lopez, additional-
ly, could not remember that he testified at the arbitration
proceeding in April 1978 concerning the refusal to recall
Lam and Ortega while Padilla's ultimate statement was
that he "could not remember anything." What these wit-
nesses could recall appeared to be tailored. 17
From the credited evidence, I find that Mike Lopez
was a supervisor within the meaning of Section 2(11) of
the Act in March 1978 when the events herein took
place. While there was a measure of repetition in the
nature of the work done in his area, employees did work
at different jobs and Lopez decided where each employ-
ee would work during the day. As Lam testified, Lopez
assigned and transferred employees to different jobs. The
Respondent, in abbreviating its personnel records, noted
Lopez to be a supervisor and compensated him at a rate
25 percent above the next highest paid employee. The
Respondent's witness, Padilla, testified that, when Sadi-
cario was away from the plant, he would receive his as-
signments from Lopez. Moreover, Sadicario rarely came
to the marking area.t ' Although Lopez did not have au-
thority to hire, fire, discipline, promote, or layoff em-
ployees, he did direct them in more than routine fashion
and the employees in his area would have been without
supervision for substantial periods of time if Lopez were
not found to be a supervisor. 19 Also, noting his freedom
of movement, of job selection, and the other above facts,
the Respondent has placed Lopez in a position where
employees could reasonably believe that he spoke on
behalf of management.
Having concluded that Lopez is a supervisor, the
matter of whether the Respondent violated Section
8(a)(2) and (1) of the Act by its manner of dealing with
him as shop steward will be considered later in the con-
text of the factual findings to be made herein.
L7 Ortega. on the other hand, appearing for the other side, overstated
his case in testifying that he only rarely saw Mike Lopez pick up a box.
as both Lopez and Lam agreed that Lopez loaded and unloaded freight
and otherwise worked .with packages for at least the first half of each
day. While Ortega's testimony on this point is not credited. it is second-
ary as he never worked with Mike Lopez and had limited opportunities
to observe Lopez at work
is In reaching the conclusion herein, it also is noted that Sadicario,
with responsibility for assigning work and staff to 5 supervisors for the
order pickers, and with personal supervision over about 30 packers and 4
guards, could have had but little time to oversee the work in Lopez' area.
"' Jack Sthlaual,. Jr., dh/a Aurora and ast Denver Trash Disposal, 218
NLRH i, 10 (1975); Stephens Produce Co., Inc. and Temple Stephens Com-
pan., 214 NlRB 131. 133 (1974)
773
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Events Leading to the Layoffs of Wing Sung
Lam and Hector Ortega-Facts
On Monday, February 13, 1978, Hector Ortega com-
plained to Wing Shung Lam2 0 that he was only earning
$112 a week, when he believed that under the union con-
tract he should have been making $127. When Ortega,
for comparison, asked what Lam was receiving per
week, Lam replied that he was earning $119. Ortega de-
clared that he was being discriminatorily underpaid. He
and Lam agreed that Ortega should go to the union
office for clarification, which Ortega did that evening
after work. Although Ortega did not succeed in obtain-
ing a copy of the collective-bargaining agreement that
evening, he did take with him two booklets which
showed that shipping clerk/order pickers were scheduled
to earn $127.75 per week. 21
Although the work shift did not began until 8 a.m.,
starting at or about 7:30 a.m., a number of employees
regularly congregated in an area of the first floor of the
plant. On the morning of February 14, before work
began, Ortega brought his union booklets to that area
and showed them to Lam and about 10 to 15 employees
gathered there. Ortega told the workers that the booklets
showed that for that month they were supposed to be
earning $127.75 per week rather than the $119 that many
were getting and announced that he was going to the
Union that evening to tell its officials that the employees
were supposed to be increased to the rates shown in the
booklets. Other employees agreed to accompany Ortega
to the union hall that day at 3:45 p.m., the end of the
work shift. Accordingly, when work ended that day,
Lam, Ortega, and a group of employees went to the
Union's offices where they awaited the arrival of the
Union's president, Henry Prastien. As requested, Prastien
did give the employees a copy of the contract and Lam
filed grievances that he was being paid less than the con-
tract rate and, also, that he had not received pay for cer-
tain holidays.
The next morning, February 15, again before work,
Ortega read from the contract to a group of about 20 to
30 assembled employees, telling them that the contract
clearly indicated that shipping clerks should be earning
$127.75 a week. Ortega's remarks were translated to
those employees who did not speak English. The em-
ployee reaction was strong. Some stated that they had
been underpaid for years. Many wanted to go to the
Union.
That morning, about an hour after work began, Ortega
was paged on the plant public announcement system, and
told by his foreman to see Traffic Manager Sadicario and
Shipping Manager Elliott Cohen. 22
Ortega testified that, when he entered Sadicario's
office, Sadicario asked what kind of trouble was he
20 In February 1978, Lam and Ortega were both employed as order
pickers on the balcony. As noted, Lam had begun his employment with
the Respondent in mid-June 1977 helping Mike Lopez load and unload
trucks until being reassigned as an order picker approximately 2 months
later. Ortega had worked as an order picker since mid-1976 when he
began to work for the Respondent,
21 Under the collective-bargaining agreement order pickers are includ-
ed in the definition of shipping clerks.
22 At the hearing, the parties stipulated that Cohen was a supervisor
under Sec. 2(11) of the Act.
trying to start for the Company. Ortega replied that he
was not trying to start any trouble. All he wanted was
what he was supposed to be earning and to receive
whatever the contract said he was supposed to be
making. Sadicario asked if Ortega thought he was being
paid enough. When Ortega replied that he did not, he
was told that, if he did not like what he was making,
then from that minute on he was going to be a packer.
Ortega stated that Sadicario could not just change his
job because he had said he was being underpaid. Sadi-
cario retorted that, if Ortega did not like it, he should
get out. Ortega declared that he was not going to get out
unless Sadicario fired him or laid him off. Sadicario an-
nounced that Ortega was not going to work there any-
more. When Ortega stated that he wanted to speak to
the union representative, Sadicario called in Mike Lopez.
Ortega sat at Lopez' desk in the shipping area while
Lopez telephoned Union President Prastien. Sadicario
stood nearby. When Lopez reached Prastien, he handed
the receiver to Ortega. Ortega told Prastien that the
Company wanted to change him to a packer and that
they did not want him to work for the Company any-
more. Prastien told Ortega to do whatever the Company
told him to do. Ortega responded that he had never been
a packer before. Prastien then asked to speak to Sadi-
cario. Ortega heard Sadicario tell Prastien that Ortega
was trying to start trouble and that he did not want him
working there. After the conversation, Sadicario told
Ortega to follow him.
En route to the third floor, Sadicario asked Ortega
why he had not come to him when he learned that he
was supposed to be making $127.75. Ortega explained
that the last time he had gone to speak to someone about
his wages he had been laid off,23 which was why he had
raised the matter with the Union at this time. Sadicario
asked why Ortega had to tell everybody and had not just
told Sadicario who would have fixed the problem. Sadi-
cario told Ortega to look after himself and that he did
not have to look after anybody else. Ortega answered
that it was not just him that the Company was underpay-
ing, but the other employees as well, and they were Or-
tega's friends.
Sadicario then reassigned Ortega to work on the third
floor. Ortega testified, without contradiction, that his
duties on the third floor, although still involving order
picking, were more onerous than his prior assignment on
the balcony. His former duties had required that he
select inventoried garments hanging on racks as specified
in the customer's orders, and rehang them on racks on
garment carts. After each cart was filled, it was taken to
the line and left there. On the third floor, however,
Ortega was required to pick orders pursuant to the speci-
fied colors and styles and place the selected items in
boxes which were then lifted onto carts. When each cart
was full, he was required to take it to the first floor. He
then would return to the third floor to resume this cycle.
Not only had it been easier to rehang the garments onto
the cart racks than to place them in boxes, but on the
third floor, instead of merely moving the cart a short dis-
23 As noted, Ortega contended that he had been laid off in late 1977,
approximately I week after protesting his wage rate to Mike Lopez.
774
RUSS TOGS. INC.
tance and leaving it as before, he was required to push
the cart across to the other side of the hallway, and take
it down to the first floor by elevator before returning to
his floor to begin again. He was paid the same rate for
both jobs.
Lam testified that, at or around 2 p.m. on February 15,
he was at work on the balcony when Sadicario arrived
and told Foreman Jay Berman that a lot of people were
going to the Union. He heard Berman reply that it
sounded like everyone was going. Sadicario left, but, at
or about 3:45 p.m. that day, he again returned to the bal-
cony and told Berman that the employees had to work
until 5:15 p.m. Berman then approached Lam and told
him that he was to stay that day until 5:15. Lam refused.
That afternoon, at or around 3:45, when the shift
ended, Lam, Ortega, and about 30 employees lined up at
the timeclock to punch out before going to the union
hall. As they waited their turn at the timeclock, the em-
ployees saw Sadicario near the timeclock holding paper
and pencil, and writing as the employees punched out.
None of the employees could see what he was writing.2 4
Samuel Rodriguez, 2 5 an order picker, testified that on
that occasion he heard Sadicario repeatedly tell the em-
ployees as they punched their cards that they could stay
to work, there was an hour of overtime, and the Compa-
ny had the work, and, in case of layoff, the employees
who were going to the Union that day would be the first
to be laid off. According to Rodriguez, Sadicario stated
this repeatedly to the employees on the line.
That afternoon, Lam, Ortega, Rodriguez, and approxi-
mately 40 employees, mostly packers and order pickers,
went to the union hall and met with the Union's presi-
dent and controller and one other representative. The
employees pressed their demand that the Union process a
grievance to get the correct amount of pay.
Lam testified that on Friday, February 17, as his shift
began, his foreman, Jay Berman, reassigned him from the
balcony to work on the first floor in a garment sorting
section, the first time he had ever been asked to work
there. At or about 4 p.m. that day, Lam was reassigned
to work under Foreman Aurelio Gonzales, also on the
first floor. 2 6 After lunch that day, Ortega, too, was told
by Sadicario to report to Gonzales. While in Gonzales'
section, Lam and Ortega worked as order pickers.
On Monday and Tuesday, February 20 and 21, Lam,
Ortega, and Samuel Rodriguez, who also was picking
orders in Gonzales' section, became aware that, for the
first time, they were being closely watched by Arnold
Dietrich, a checker. Dietrich stayed with Lam, Ortega,
and Rodriguez, checking their work very carefully, and
even following them to the bathroom. When Lam asked
Dietrich why he was doing this, Dietrich replied that the
boss had told him to do so. When, on the next day, Lam
asked Gonzales why the Company was keeping its eye
on him in that way Gonzales replied that he did not
4 Employees who testified to seeing Sadicario making notes as the
employees left on February 15 included Ortega, Lam, Jose De La Cruiz,
and Jofie Alcantara. Ortega testified he only had seen Sadlcario do this in
the past when layoffs were taking place.
2s Rodriguez made several after work visits to the union hall, accom-
panying Lam, Ortega, and other employees.
:8 Lam previously had worked under Gonzales.
know. When Lam asked if he were doing okay, Gon-
zales told him that he was a good order picker and that
he should just do what he was supposed to do and do it
right.
On the night of February 20, Ortega and some other
workers brought the following document to the Union,
typed by Lam:
We ask:
1. R.T. should give us backpayment of the wages
underpaid according to the contract.
2. R.T. should from now on pay us wages at least
according to the contract.
3. R.T. should pay back all the holiday pay that
R.T owes us according to the contract.
4. no [sic] discrimination against non-English
speaking workers or workers of any nationality in
wages and in promotion.2 7
On February 20, when Dietrich began his close obser-
vation, he told Lam that some mistakes had been found
in his work. Lam previously had not been told of such
errors.
After Lam and Ortega were moved to the first floor,
in addition to receiving closer supervision from Dietrich
and Gonzales, other company officials also watched
them work. These included Sadicario, Berman, and other
foremen. On March 2, Sadicario, who had not directly
supervised Lam before, came to his work area three
times to check Lam's work and that afternoon Sadicario
stayed with Lam and Ortega from about 1 p.m. until
quitting time. Sadicario stayed particularly close to Lam
and was either behind him or next to him. Berman, too,
watched Lam and Ortega for part of the day while Die-
trich continued his surveillance. When Ortega asked why
Dietrich was watching him so closely, he was told that it
was none of his business.
Ortega testified that earlier employee Danny Lopez 2 8
was paged on the public announcement system. Thereaf-
ter, Danny Lopez came to Ortega's section and told him
that Sadicario had called him in and asked him to watch
Ortega, to see whom he spoke to and what he was talk-
ing about, and to report this information to Sadicario.
Danny Lopez rejected Ortega's urging that he cooperate
with Sadicario in this. 2 9
On March 2, at 3:45 p.m., Lam, Ortega, and about
some 30 workers punched out preparatory to going again
to the Union on the matter of the pay differential. While
waiting their turn at the timeclock, the employees saw
Sadicario and Supervisor Elliott Cohen stop Jose De La
Cruz 30 and search under De La Cruz' coat, undoing the
buttons. They also looked into the bundle De La Cruz
27 The above document was signed by a number of employees before
being delivered to the Union. However, the signatures were missing from
the copy placed in evidence.
2 Danny Lopez, the nephew of Supervisor/Shop Stewart Mike Lopez
was employed by the Respondent from October 1977 until his laoff in
May 1979 He and Ortega had had a friendly relationship, taking lunch
together from time to time
22 Danny lopet denied the above.
l)e .a Cruz is employed by the Respondelit as a packer tie had
accompanied Lam, Ortega, and other employees to the union hall in Feb-
ruary and was about to make his second isit to the Union on March 2.
775
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
used to carry his lunch. They did not reply when De La
Cruz asked why they were searching him.31
Ortega testified that, on or about March 7, he tried to
speak with Lopez, who was then at his shipping area
desk, but was told by Lopez not to talk to him because
he was working. Ortega returned at lunchtime, while
Lopez was eating, and asked to speak to him when he
finished. Sadicario came up and told Ortega not to
bother Lopez because he was working. Ortega replied
that Lopez was not working but was having his lunch
and it also was Ortega's lunchtime. He told Sadicario
that he wanted to speak to Lopez as his union repre-
sentative and that he had the right to do so. Lopez then
began to eat very slowly and the bell rang. Ortega re-
turned to his work station.
Later that day, Union President Prastien came to the
plant and asked Ortega to meet with him at Lopez' desk.
When Ortege arrived, Sadicario, also present, stated that
he did not want Ortega there because Ortega kept on
telling employees not to work and to slow down and
that Ortega persistently had written notes on cards
which he sent down the line, making trouble for other
people. Sadicario produced a piece of cardboard with
Spanish writing on it and accused Ortega of writing
what was on the card to scare the workers. Ortega re-
plied that Sadicario had gotten angry at him because he
claimed his rights and asserted that he was there because
the union representative had called him. He was talking
to the union representative and not Sadicario at the time
and asked if Sadicario would please let him talk. Accord-
ing to Ortega, Sadicario began to scream accusations.
Ortega replied that he never had seen the note Sadicario
was holding and that the accusations all were lies. Sadi-
cario repeated that Ortega had written the paper. Ortega
continued to deny this, even to Prastien.
Sadicario testified that effective February 27, 1978,
about 18 order pickers received pay increases in varying
amounts to bring their weekly earnings up to $127.75.32
No wage increments were then scheduled under the col-
lective-bargaining agreement. Ortega and Lam were
among those who received raises. Sadicario did not
know why these raises had been given, explaining that
he does not handle wage administration and the matter
was not discussed with him. Ortega related that in the
beginning of March Mike Lopez had announced to an
assemblage of employees the Company's agreement to
pay them $127.75 per week.
Lam testified that on March 8, shortly after certain
employees had received the announced pay increases, he
asked some other employees, during a lunch break, how
much they were being paid. These workers replied that
they still had not received increases. Lam told them that
the order pickers all had been raised to $127. When the
employees asked how come they had not received their
increases, Lam told them to take it easy until the union
3' Neither De t.a Cruz nor any other packer had been searched before
or since March 2. and there is no contention that )e l.a Cruz had been
involved in dishonest activity
2J The number of employees is generally supported by the Respond-
ent's records.
representative arrived the next day, when they should
talk to him.3 3
Later during that March 8 lunch break, Lam was ap-
proached by Sadicario on the plant floor. When Sadi-
cario observed that Lam spoke Spanish, Lam replied that
he had just learned a few words. Sadicario asked what
Lam had said to the workers. Lam replied that he had
just told them how much they should be earning and
what he was making. When Sadicario stated that the em-
ployees did not need Lam as they made more than he,
Lam asked what Sadicario was talking about, and named
an employee who had worked for the Respondent for 13
years and earned less than he. Sadicario repeated that
these employees made much more than Lam. At that
time, the bell rang ending the lunch break and the con-
versation.
Lam related that, earlier in March, he had approached
Lopez' desk just as Sadicario was there telling Ortega
that he had been intimidating a worker.34 Lam interject-
ed, asking Sadicario how he could say that Ortega had
intimidated the workers. The person who had intimidat-
ed the workers was Sadicario because he had seen him
stop Ortega from talking to Lopez the other day, and
had heard him tell Ortega that he should not go any-
where but to stay in one place. This was intimidation.
Lam also told Sadicario that they had the right to talk to
the people. When Sadicario replied that they could not
talk to the people in the plant, Lam declared that he had
a right to talk to the employees during break time; it was
his time. Sadicario retorted that he could not as it was
company time paid for by the Respondent. Lam repeated
that breaktime was the employees' time. Prastien inter-
jected that employees should have the right to talk to
other employees. When Sadicario charged that Lam had
asked the packers to slow down, Lam denied this and
told Sadicario that he was a liar and should keep quiet.
Another supervisor told Prastien that the employees
should return to work; they could not hold a meeting
there.
On March 9, at the end of the workday, Lam, Ortega,
and about 10 other employees were laid off. Earlier, on
March 2, most of the packers had been laid off.
On learning of his layoff, Lam testified that he asked
Sadicario for the reason and agreed to leave when reas-
sured that there was no work. Ortega, too, received his
green layoff slip on March 9. He waited outside to see
who else had been laid off and then went to the union
office to report that he had been laid off. Ortega never
went back to the plant after that day.3 5
Lam made his first attempt to return to work on
March 20. First, he asked Prastien when he would
return, and was told that he was not going to be able to
go back because he had been encouraging employees to
:a In response to the Company's accusation that he and Ortega had
urged a slo,:dowtt, Lam emphasized that in telling these workers to
"take it easy" his meaning was that they should not get upset but wait to
speak to the union represenltativr He denimed urging that they slow down
in their olrk.
:'4 Prastienl Lopcz. and some employees also were present at the time.
O ()n Monday March (, through Wednesday. March 8, the 3 days im-
nlcdalel preceding their March 9 layoff, Lam and Ortega each had
worked a total of 3 hours overtime-an hour each day.
776
RUSS TOGS, INC
slow down. However, Prastien qualified this by stating
that the Company did not want to call him and Ortega
back yet. Prastien promised to find out the next day.
Lam then telephoned Sadicario, announcing that he
had heard that three people were being recalled. Lam
asked if he were one of them. When Sadicario said no,
Lam asked when he would be called back. Sadicario re-
plied that he did not know but would discuss the matter
with Prastien.
The next morning, Lam entered the plant but Sadi-
cario stopped him near the timeclock. Lam declared that
he was ready to work and asked if he could go in. When
Sadicario said no, Lam asked why not; he had heard the
day before that all order pickers were working over-
time.36 Sadicario replied that there was no work that
Lam could do. Lam asked what he meant; he was an
order picker and knew every kind of order. He asked
what kind of order there was that he did not know how
to pick. Sadicario repeated that there was no work that
Lam could do. Although Lam persisted, Sadicario did
not let him in.
Lam remained at the plant waiting for the union hall
to open so that he could call there. While waiting, Lam
again spoke to Sadicario telling him that he knew there
was work and that he was not being recalled because of
a lack of work. He told Sadicario that, if he were a man,
he would state the real reason. Sadicario responded that,
on the first day Lam found out he was supposed to earn
more money, he should have come to him. He asked
why Lam had gone around speaking to everyone else.
Lam answered that he was a union member and had a
right to tell the people what had happened to him and to
others. Besides, Lam also had spoken to Mike Lopez. Sa-
dicario told Lam that it was not the same. Lam should
have come to him. Sadicario told Lam that he was too
smart for him. Lam knew English, he knew Spanish, and
he knew Chinese. He should belong to the United Na-
tions. Lam said that he was an order picker, he just hap-
pened to get the newspapers. Also, he did not speak
Spanish that well. Sadicario then asked why Lam
wanted this job; he could get a much better job. If Lam
really wanted, Sadicaro could recommend him for a job
with better pay. Lam answered that the Company
needed an order picker and he did not trust Sadicario.
Sadicario stated that he did not need an order picker but
offered Lam a better job with better pay. When Lam
asked what the job was, Sadicario gave him a referral
note telling Lam, when he followed through, to tell the
management there that Sadicario recommended him. 37
Later that morning, Lam went down to the union hall
where Prastien told him that the Company had not made
a recall decision. However, when Lam agair, called that
afternoon, Prastien told him that the Company did not
want him and Ortega to go back because they had in-
timidated a worker. 3 8
a6 Under the contract. overtime work cannot he assigned while em-
ployees are on layoff
7' Sadicario confirmed am's tcslimols that he had offered to recon -
mend him for a position with another employer.
as Prastien also informed Ortega that lie had been unable to hale him
and Lam recalled and that the Company did not want them back
D. The Respondent's Reasons for Refusing To Recall
Lam and Ortega
Sadicario testified that he made the decision to lay off
Ortega and Lam on March 9 as they had been harassing
employees and telling them to slow down and refuse
overtime in order to bring the Company to its knees.39
Sadicario never has fired any of the Respondent's em-
ployees. His practice has been to lay off undesirable em-
ployees and hope that they do not come back. Sadicario
also denied having told Lam and Ortega that they were
being laid off because of their complaints about wage
rates or for having grieved the same with the Union. In
fact, Sadicario denied knowing of any such grievances.
Sadicario related that, in the first week of February
1978, Getulio Alvaro, an employee, had asked to meet
with him in the early morning in a part of the plant
where they could not be seen because he was afraid. 40
There, Alvaro told Sadicario that there were two revo-
lutionaries in the plant who were telling employees to
slow down and to not work overtime. They were saying
that the Respondent was capitalistic.4' Sadicario replied
that he would call Prastien and, if Alvaro would so tes-
tify, the Respondent would fire them. Alvaro refused
stating that he definitely was afraid of them, that he had
a family with children, and that Sadicario himself defi-
nitely should be afraid.4 2 Sadicario explained that no
action was taken as Alvaro would not stand behind his
story.
Thereafter, Sadicario was told by the plant doorman,
Elias Matsas, that Ortega had been speaking very loudly
during a lunch break, telling employees to slow down
and to not work overtime. Ortega told the employees
that, if they did, they would only be making the Compa-
ny bigger and bigger.
On or about February 10, following the above inci-
dents, Sadicario called a meeting of his supervisors and
told them about Lam and Ortega. He asked if these men
were reporting to work on tinme, if they were doing their
jobs right, or if they were slowing down. Jay Berman,
one of the supervisors, reported that Ortega and Liam
very seldom were by their work stations at 8 a.m. and.
although they were supposed to take their morning break
at 10, they would leave before then. They also would
take their lunch breaks before the scheduled 12:15 p.m.
time, and report back late from their morning and lunch
breaks. Sadicario reasoned that Ortega and Lam must be
slowing down the employees on the further ground that,
as they were inside the plant by 7:30 each morning, he
could not understand why they otherwise would not be
working at 8 a.m.
On a number of occasions, Sadicario found Ortega
conducting meetings of employees in the plant area. Sa-
dicario, on these instances, told Ortega to let the men go
1 rThe Respondent does not contend that Lamn and Ortega were termi-
nated because of poor work performance or that an actual slouwdown had
)occ urred
Il Sadcarl) i I'tl ed that Alvaro held a black bell in karate.
' It wsas the seltC lI Sladlcarios testimon) in this regard that the Iv.o
r-sioltllnallie refeilrld rt) bh Als aro were Lam and Ortega
: Ai the time of the hearing. Alsar, was no lonlger employed by the
Respondent He did Irot testify in this proceeding
777
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
back to work. Cartons in the sweater section had been
rearranged so that employees could sit on them. Their
use in this way had ruined the cartons and cost the Com-
pany money. However, when an employee got up to
leave the meeting, Ortega, in Spanish,43 would call the
man an "ass kisser." He also referred to Sadicario as "a
dirty, stupid old man." 4 4
Sadicario, in early March, had come upon Lam as he
was telling four Spanish-speaking employees, inside the
plant during a lunch break, that he could not understand
why they were working so hard and that they should
slow down; they were not being paid enough. Sadicario
approached and told Lam that he thought he did not
know how to speak Spanish. Lam replied that he had
just learned.
On March 8, employee Louis Padilla, in the presence
of other employees, Jose Lopez, Danny Lopez, and
Cesar Bueno, informed Sadicario that Lam and Ortega
had told him to slow down and had asked why he was
being such an animal working so hard. The other em-
ployees nodded in agreement. 4 5
Padilla testified that, on the morning of March 7, he
was approached inside the plant by Lam and Ortega,
who told him not to work hard, to take it easy, and to
slow down. They stated that the employees were being
underpaid and asked him to go to the Union at 3:45 that
afternoon. When Padilla did not reply, he was told that,
if he did not go, he would get himself in trouble. 46
On the afternoon of the next day, March 8, Padilla
was told by Ortega, in a different part of the plant, to
not work hard, to take it easy, and to let (Mike) Lopez
do all the work. Ortega called Padilla a hog because he
was working too hard. Padilla, in March, also heard
Ortega tell shipping clerk Cesar Bueno to slow down
and not to make money for the Company.
Padilla told Mike Lopez and Sadicario of the above-
described conversations with Ortega and Lam. 47
Jose Lopez testified that on March 7, at lunchtime in
the Company's cafeteria, Ortega had asked him whether
he was going to the Union and, in effect, whether he
was a person. Lopez did not reply.
On March 7 or 8, Jose Lopez,4 8 having returned early
from lunch, was the only one working while Ortega was
speaking nearby to a group of employees in the shipping
department. Supervisor/Shop Steward Mike Lopez also
was in the area. Jose Lopez related that he had heard
Ortega tell the group that there were people who were
helping the Company but that "we should be working
slowly."
43 Sadicario understood Spanish.
4 Lam and Ortega denied that they spoke to employees during work-
time, doing so only during recess for lunch and other breaks.
4' Sadicario testified lthat Padilla first privately told him of being urged
to slow down by l.am and Ortega. Sadicario then had gone to the mark-
ing section where Padilla and the others worked. There, Padilla repeated
his account to him in the presence of the other employees.
46 Padilla did not go to the Union that afternoon.
47 Padilla, employed by the Respondent as a marker, left the Respond-
ent's employ voluntarily in early August 1978.
48 Lopez, employed by the Respondent at the time of the hearing, had
been with the Company for about 4 years as a marker and shipping clerk.
Danny Lopez 4 9 testified that, in late February or early
March, he overheard Ortega, Lam, and two or three
other employees in conversation as he was passing
through their area inside the plant. Ortega told the other
employees that they should slow down in their work be-
cause they were not being paid enough. Lam agreed and
told them that the Respondent was not paying them the
proper rate.
Danny Lopez also recalled a lunchtime incident on or
about February 20 where Ortega, with Lam by his side,
spoke to a group of 15 to 20 employees while standing
on an elevated surface in the sweater department. Ortega
told the employees that, as the Company was not paying
them the right wages, they should go to the Union,
speak to the union representative, and not work as hard.
Ortega told the group that the Company employed noth-
ing but fascistic and capitalistic people, was capitalistic
itself, and was not paying the right wages. Other em-
ployees applauded and agreed to go to the Union. Lopez
did not stay through the whole incident.
Danny Lopez related that on four or five occasions
during the approximately 18 days after February 13,
when Ortega first began to speak to employees about
wages, he told his uncle, Mike Lopez, what he had seen
and heard Ortega and Lam say and do. These instances
occurred while Danny was driving his uncle home,
which he did each night while employed by the Re-
spondent. Danny also described to Mike Lopez the inci-
dent he had witnessed in the sweater department on the
evening after it had occurred. 5 0 Mike Lopez, in turn, re-
called having been told by Danny Lopez sometime in
February that Lam and Ortega were complaining about
their wages. Mike Lopez, however, did not discuss this
with Ortega and Lam, or file a grievance on their behalf,
but reported their activities directly to Sadicario. Lopez,
as shop steward, had not filed a grievance on behalf of
any of the employees in at least 10 years, did not have a
copy of the collective-bargaining agreement, and, ac-
cordingly, did not know at the time whether the unit em-
ployees were being paid at the scheduled rate.
Cesar Bueno 5 1 further corroborated Sadicario as to
the activities of Lam and Ortega. Bueno testified that on
March 7, during the lunch break in the cafeteria, Lam
had asked him if he could go to the Union that night.
When Bueno replied that he had a doctor's appointment,
Lam told him that, if he could not go, he was an animal.
Bueno related that on the next day, March 8, Lam told
him that he should not work overtime and that he should
not kill himself. In this period, Bueno also overheard
41' Danny Lopez, previously identified as the nephew of Mike Lopez,
was employed by the Respondent as a mail clerk from October 1977 until
May 1979.
50 Although Danny Lopez conceded that at the earlier arbitration pro-
ceeding he had testified that he heard Ortega and Lain tell employees not
to) 'work so hard because the firm was not paying enough for people to
go out and kill themselves, and did not, in so many words, say that the
employees had been told to "slow down," his recollection at the hearing
in this matter was that Ortega and Lam actually had urged the workers
to slow down
5 Bueno, employed by the Respondent for approximately 6 years as a
marker in the shipping department, was still working for the Respondent
at the time of the hearing.
778
RUSS TOGS, INC.
Ortega telling several employees that all who worked for
the Company were capitalists.
Denials by Ortega and Lam that they ever had told
employees to slow down or take it easy, in turn, were
corroborated by Jose De La Cruz.
Sadicario agreed that Lam and Ortega were being
watched more closely. Sadicario related that he had or-
dered Foreman Aurelio Gonzales to have someone ob-
serve Ortega and Lam at work because he wanted to
learn if they really were slowing down and, also, as he
had received complaints about mistakes in shipped
orders. Accordingly, Gonzales had assigned checker
Arnold Dietrich to watch orders prepared by Lam and
Ortega. Dietrich found mistakes and reported that the
two men were writing notes to each other.
Sadicario related Dietrich's report that, while checking
the work of Lam and Ortega, Ortega repeatedly harassed
him, calling him a fascist and different breeds of dog. At
one point, Ortega told Dietrich that he should go to the
dock where there was a bomb so that he could get
blown up.
Sadicario conceded that on or about February 21 he,
too, personally watched Lam and Ortega. Both men
were moved to the first floor on February 17 because
they were under close supervision, facilitated in that
Aurelio Gonzales, the first floor supervisor, spoke Span-
ish.
With respect to the incidents alleged at the timeclock,
Sadicario testified that, in his role as security chief, he
generally was at the timeclock when employees left
work to see that nothing was taken improperly. He also
made it a point to be at the timeclock when employees
were supposed to be working overtime as he designated
who was and was not to work overtime.
Sadicario recalled being at the timeclock late on Feb-
ruary 15 because he had learned from Aurelio Gonzales
at 3:30 p.m. that day that no one was working, but that a
large group ot employees were waiting in line to punch
out. Sadicario told the employees at the timeclock that
the bell had not yet rung and asked why they were all
standing around. He also told them that there was plenty
of overtime and that, if they wanted to work, they
could. Lam and Ortega would not harass them; they
could work and there would be no problem.
Sadicario denied having written anything at the time-
clock while employees were leaving work, but admitted
that on two occasions when employees went to the
Union after work, February 15 and March 2, he counted
the employees who had left, explaining that there was
much work to be done and it was necessary to deploy
the remaining workers. However, Sadicario denied using
paper and pencil in his computations. He merely had
counted the timecards in the appropriate rack after the
employees were gone.
Sadicario also denied Samuel Rodriguez' testimony
that he had told employees as they waited to punch out
that those who were going to the Union would be the
first to be laid off should layoffs occur, or that he had
told Lam or Ortega that they were being laid off because
of their complaints about their wage rates or for having
filed related grievances with the Union.
Accordingly, Sadicario decided to lay off Ortega and
Lam on March 9, 1978, because they had been trying to
harm the Company by telling employees to slow down
and to not work overtime and had been harassing em-
ployees. March 9 was chosen because, at that time, work
was slow and they could then be let go without hardship
to the Company.
E. Credibili/v Resolutions
In concluding, contrary to the General Counsel and
the Charging Party, that Lam and Ortega did tell em-
ployees to slow down in their work in protest of under-
payment, reliance is placed on the testimony of Sadicario
and Danny Lopez, and the testimony of the Respond-
ent's other witnesses in this area is credited only in that
they were corroborated by these two men. I deem Louis
Enrique Padilla, Cesar Bueno, and Jose Javier Lopez, by
themselves, too unreliable to be independently convinc-
ing. s 2
Sadicario is credited that he had been advised that
Lam and Ortega told and he had heard Lam and Ortega
tell employees to slow down as he did not attempt to de-
scribe his activities solely in terms helpful to the Re-
spondent's position. Sadicario admitted having kept Lam
and Ortega under close supervision by his own efforts
and through those of others whom he had caused to be
assigned for that purpose. He conceded having been at
the timeclock on February 15, offering overtime work to
employees to dissuade them from punching out and
going to the union office that afternoon, and that, in his
own way, he had counted the number of employees who
had left work at 3:45 p.m. then and on March 2. He did
not attempt to deny that he knew that employees were
going to go to the Union after work. Sadicario also cor-
roborated Mike Lopez' testimony that he had reported to
Sadicario what Danny Lopez had told him about Lam
and Ortega urging employees to slow down. At the same
time, Mike Lopez thus corroborated the testimony of
Danny Lopez in this regard.5 3
Also, it is inconsistent with their activities, as put for-
ward by the General Counsel, that Lam and Ortega
would use the term "take it easy" to counsel patience
among other employees, as argued. Rather, the General
Counsel otherwise argues that Lam and Ortega consist-
ently were trying to goad employees into taking action.
52 Padilla could not recall when or in what amounts he had received
wage increases, was Inconsistent as to the amount of overtime he worked,
vague as to how he knew to work overtime, and finally testified that he
could not remember anything. Jose Lopez while testifying as to the
exact dates of his conversations with L.am and Oretga, could not recall
anything else, including that he had been a witness at the above-referred
to April 1978 arbitration proceeding Bueno's statement i his brief testi-
mony that he had not discussed 'either (of his relevatt incidents involving
l.am and Ortega with Sadicario was contradicted by Sadicario. who
nlamed Bueno as one of his information sources that I.am and Ortega
were urging a slowdown
a" In crediting the testimony of Danny Lopez concerning slowdowni
contrary to the Charging Party, I do not place great signilicance on the
fact that at the earlier arbitration proceeding Danny Lopez had testified
that Ortega and l.am told the employees "not to work so hard" in pro-
test at underpayment and had not used he term "sloddown" as at the
present hearing Danny Lopez' current recollectlion is hat Lam and
Ortega actually had told employees to slow down Any claimed distinc-
tion or inlcolsistency from the foregoing is more enantic than real
779
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, in the context of the factual pattern of this
case, I do credit the testimony of Lam and Ortega con-
cerning their various conversations with Sadicario, as de-
scribed above. Employees were being paid below the
contract rate. While, as the Respondent asserts, an arbi-
trable issue may have existed in certain job classifica-
tions, this dispute did not extend to order pickers. They
were being underpaid and that situation was corrected
on February 27, 1978, when, principally in response to
pressures created by Lam and Ortega, the Respondent
granted special pay increases in varying amounts to bring
these employees to the scheduled hourly rate of $127.75.
When, on the morning of February 15, Ortega was
summoned to Sadicario's office, he had been reading the
contractual rates openly inside the plant to groups of em-
ployees, and had been urging them to accompany him to
the Union for about 2 days. He had conducted his last
such session just about an hour before being called to the
office.
From the timing of this incident in relation to Ortega's
activities in attempting to enforce the contract and, sub-
sequently, to his transfer and the close supervision to
which he and Lam were subjected, I credit Ortega's ac-
count that, during that interview, Sadicario had accused
him of starting trouble for the Company and had told
him that, if he did not like what he was earning, he im-
mediately would be reassigned as a packer. When Ortega
balked at accepting this assignment, not having done
such work before, Sadicario attempted to fire him and
was dissuaded from doing so only by the intervention of
Prastien, the union president. Sadicario thereupon trans-
ferred Ortega to more onerous order picking duty on the
third floor.5 4 Ortega remained there for the next 2 days,
until February 15, when he again was transferred, as was
Lam, to work together under the close supervision of
Foreman Aurelio Gonzales, checker Arnold Dietrich,
and, ultimately, Sadicario himself. Sadicario admitted
that Ortega and Lam had been subjected to unusually
close observation in that period and had been transferred
to Gonzales' section to facilitate the same as Gonzales
spoke Spanish. Contrary to Sadicario, I do not believe
alleged job errors by Lam and Ortega to be a reason for
this conduct.55
Lam's testimony is uncontradicted that, on the after-
noon of February 15, he heard Sadicario tell Supervisor
Berman that a lot of people were going to the Union,
and also, returning at 3:45 p.m., tell Berman that the em-
ployees had to work until 5:15 p.m. Lam refused Ber-
man's request that he work overtime that day. As he and
other employees waited their turn to punch out before
going to the Union, they saw Sadicario by the timeclock
making notes. Sadicario admitted that he was there
urging employees to remain at overtime and that Lam
b4 Even while Sadicario, il the process of transferring Ortega, %oas ac-
companying him to the third floor, he asked Ortega why he had aised
the wage discrepancy issue with the Union at that time instead of comilng
directly to him, as Sadicario would have "fixed the problem" at least as
to Ortega.
Ill conlnection with this close supervision. I credit Ortega's teslill)-
ny, denied by L)anny Lopez, that the latter had informed Ortega that he
had refused Sadicario's request to spy on Ortega's activities Sch a re-
quest by Sadicario would have been in keeping with the Respoldent's
conduct towards Ortega and Lam.
and Ortega would not harass them, corroborating knowl-
edge of the union activities of these two men. Chronolo-
gically, all the foregoing occurred during the same week
that Lam and Ortega obtained a copy of the union con-
tract and began to speak to employees about correcting
their rates of pay. 56 In this context, I also accept the tes-
timony of Samuel Rodriguez that on February 15, as the
employees were waiting to punch out, Sadicario also
threatened that, in the event of layoff, those who that
day went to the Union would be the first to be laid off.
Such a statement would have been consistent with the
rest of Sadicario's conduct at that time.
Sadicario did not deny the accounts by the General
Counsel's witnesses that on March 2, while a number of
employees again were waiting to punch out to go to the
Union, he and Supervisor Elliott Cohen stopped and
physically searched employee Jose De La Cruz, opening
his coat and going through his lunch package. This inci-
dent followed a decision made that morning by a group
of about 20 employees to go to the union office after
work to learn why some of them had not received the
raises recently afforded to certain employees. There was
no contention that De La Cruz had been or was engaged
in any dishonesty, and this was the only time an employ-
ee was searched.
I also credit the descriptions by Lam of his conversa-
tions with Sadicario on March 8, when Sadicario, com-
menting on Lam's ability to speak additional languages,
attempted to discourage him from telling employees that
thay should be earning more money and Lain's account
of his efforts of March 20 and 21 to obtain recall after
his March 9 layoff. This includes Sadicario's explanation
that Lam was not being recalled as Lam should have
come to him with his wage claims rather than going
around speaking to everyone else. These conclusions are
buttressed by the showing that Lam and Ortega were
subjected to extraordinarily close supervision although
neither had been warned for past job errors, that, for all
alleged faults, Lam had been given a letter of recommen-
dation by Sadicario for employment elsewhere, and that
neither Lam nor Ortega was included in the initial lay-
offs of March 2.
F. Discussion and Concluding Findings
1. Acts of interference, coercion, and restraint
From the credited evidence, it is concluded that the
Respondent violated Section 8(a)(1) of the Act by the
conduct described below undertaken in response to its
employees' protected activities in seeking to enforce the
wage provisions of the collective-bargaining agreement:
(a) Sadicario's coercive interrogation of Ortega on the
morning of February 15, when, on Ortega's arrival in his
office, he asked Ortega what kind of trouble he was
trying to make for the Company.
(b) Sadicario's later interrogation of Ortega on Febru-
ary 15, while transferring him to work on the third floor,
s' While Sadicario admitted that, t11 Fcbruary 15 and March 2, he
counted the number of employees who had left woirk by totaling Ihe ti-
mecards ill the rack, I find that he also made notes on February 15 a the
emplyCes were leaving work
780
RUSS TOGS, INC.
as to why Ortega had not come to him, rather than the
other employees when he learned that he was supposed
to be making more money. This finding includes Sadicar-
io's statement that he would have fixed the problem for
Ortega.
(c) Sadicario's threat to discharge Ortega during their
February 15 interview by telling him that, if he did not
like the position of packer to which he was then being
assigned, he should "get out" and by Sadicario's further
effort that day to fire Ortega until Prastien's intercession.
(d) Sadicario's statement to employees waiting to
punch out on February 15 that, should there be layoffs,
those who went to the Union that day instead of work-
ing overtime would be the first to be laid off.
(e) Sadicario's taking notes by the timeclock as em-
ployees were punching out to go to the union office on
February 15, and again positioning himself there with
Cohen on March 2, constituted coercive and unlawful
surveillance of their union activities.
(f) The searching of De La Cruz by Sadicario and
Cohen on March 2 before other union-bound employees
also then leaving the plant was a coercive surveillance of
De La Cruz' union activities and had a restraining effect
on the union activities of other employees present at the
time.
(g) Sadicario's work transfer of Ortega to the third
floor on February 15 after twice interrogating him and
threatening discharge, and the February 17 transfer of
Ortega and Lam to the first floor.
(h) The very close supervision of Lam and Ortega on
the first floor by Dietrich, Gonzales, and Sadicario.
(i) Sadicario's interrogation of Lam on March 21, in
response to Lam's inquiry as to why he had not been re-
called from layoff, as to why Lam had not come to Sadi-
cario rather than other employees when he learned he
was supposed to be earning more money.
6) Sadicario's March 8 interrogation of Lam as to
what he had said to certain Spanish-speaking employees
with whom he had seen Lam talking to during a lunch
break.
2. The permanent layoff of Lam and Ortega
In N.L.R.B. v. Ayer Lar Sanatarium,5 7 the court of ap-
peals noted that:
[T]he cases are legion that the existence of a jus-
tifiable ground for discharge will not prevent such
discharge from being an unfair labor practice if par-
tially motivated by the employee's protected activi-
ty; business reason cannot be used as a pretext for
discriminatory firing.... The test is whether the
business reason or the protected union activity is
the moving cause behind the discharge.... In
other words, would this employee have been dis-
charged bulfior his union activity?
In agreement with the Respondent, I have found
above that, at various times during February and March
1978, Lam and Ortega did urge employees to slow down
on the job to protest being paid below the rate specified
in the contract. Lam and Ortega also repeatedly urged
rs 436 F 2d 45, 50 (9th Cir. 1970)
employees to accompany them in groups to the union
office after work on various occasions in a continuing
effort to correct this underpayment. In so doing. they
were assertive and, as charged, did call other employees
unflattering names when they refused to participate.
It has been found above that, within 2 days after be-
ginning to openly advise employees of their pay rights,
Ortega was summoned to the office by Sadicario, coer-
cively interrogated, threatened with discharge, and un-
lawfully transferred to perform more arduous duties.
Ortega and Lam were subjected to further coercive in-
terrogation and both were transferred and subjected to
days of the closest observation by an array of supervisors
and an agent appointed to the task, including Sadicario
himself.
The Respondent's pattern of harassment extended to
other employees who were discouraged from accompa-
nying Ortega and Lam to the Union after work. On Feb-
ruary 15 and again on March 2, Sadicario stationed him-
self at the timeclock and conducted surveillance of em-
ployees punching out to go to the Union. On the former
date, he made notes as employees punched out, offered
overtime work, and threatened those who were leaving
with possible layoff. Employees were told that Lam and
Ortega would not harass them.58 On March 2, again at
the timeclock as other union-bound employees were
waiting to punch out, Sadicario and Cohen physically
searched De La Cruz.
The March 9 layoff of Lam and Ortega occurred ap-
proximately 10 days after the employees were raised to
the pay rate provided in the contract, a culmination of
their efforts, and during a week when each had worked
3 hours of overtime.
The Respondent first had learned that Lam and Ortega
were urging a slowdown on or about February 2 when
Getulio Alvaro reported this to Sadicario. On or about
February 10, from accounts received from supervisors at
a meeting called to consider Lam and Ortega, Sadicario
concluded that the two men must be slowing down. This
was further confirmed on February 20 when Mike Lopez
reported Danny Lopez' account of ILam's and Ortega's
inciting a slowdown. In early March, Sadicario personal-
ly heard Lam tell four Spanish-speaking employees to
slow down. Yet, when Lam and Ortega were finally laid
off, it was with other employees as part of an economic
cutback, the only reason given at the time. Lam and
Ortega had not been included in the initial March 2
layoff and Lam later was given a letter of recommenda-
tion by Sadicario for employment with a different specif-
ic employer.
From the above, it appears that, although Sadicario
claimed notice since around February 2 and at least since
February 10 that Lam and Ortega had been urging em-
ployees to slow down, it was not until February 15, after
they had started to rally employees to protest their im-
Sadicarto's kno ledge of and irritation with the activities( of am
alnd Ortega are illustrated hy his testimony at the arbitration proceeding
that th, ,ere alwrc ays telling the people to quit ork at 345 and orga-
niZc rnld get togclher and go down to the U nion They kept on doing
Ithlt ie,\,? lgle tirn " (Resp I h 2, pp 74 75 ) Sadicario noted that
this had disrupted the Respondent t o.e rtime requiremenls
781
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proper pay scale, that Sadicario began to move against
them and to pressure other employees who might have
been influenced. It was only shortly after the wage situa-
tion was corrected at cost to the Respondent that Lam
and Ortega finally were laid off, backgrounded by the
8(a)(l) violations found above.
For the foregoing reasons, I conclude that Lam and
Ortega were permanently laid off in violation of Section
8(a)(3) and (1) of the Act because they had filed griev-
ances with and had otherwise protested to the Union
that the Respondent was paying employees less than the
contracted wage rate and were encouraging other em-
ployees to do the same.59 The substantial delay in sepa-
rating Lam and Ortega in the face of continuing evi-
dence that they were urging employees to slow down re-
inforces the conclusion that when they finally lost their
jobs it principally was for the reasons found herein. 6 °
3. The status of Mike Lopez as shop steward and
supervisor
The General Counsel and the Union argue that the
Respondent unlawfully assisted the Union in its manner
of dealing with Mike Lopez as the Union's sole shop ste-
ward.
Administrative Law Judge Kaplan in his Board-ap-
proved Decision in Narrangansett Restaurant Corp.,6
concluded:
While I find that in the circumstances of this case
the statements and conduct of [the] shop steward
are chargeable to Respondent Narragansett, it is on
the basis of an actual conflict of interest and not
merely on the basis of supervisory status. In the
area of employer liability for its supervisors' partici-
pation in union affairs the Board has long rejected a
per se approach.2 7 Rather, the Board determines lia-
bility on a case-by-case basis, noting the nature of
supervisor[y] participation, i.e., whether the individ-
ual is a member of a union negotiating committee,
and whether a high- or low-level supervisor is so in-
volved. 2 8
27 See Nassau and Suffolk Contractors Association. Inc., et al.,
118 NLRB 174 (1951).
28 See, e.g., Schwank Incorporated (managerial and high-level
supervisors), 229 NLRB 640, 641 (1977); Allied Chemical Corp. (a
foreman who was at the same time the vice president of' the
union), 175 NI.RB 974 (1969); Beach Electric Co. (low-level and in-
termittent supervisors), 174 NLRB 210 (1969).
In the present matter, Lopez, as found above, is a low-
level supervisor. As shop steward, Lopez could accept
and process applications for union membership, he stored
and distributed union books, and he collected fees and
dues. Although unexercised in many years as shop ste-
ward, he also had the authority to process grievances.
However, when on or about February 20 Danny
Lopez reported to him that Lam and Ortega were telling
employees to slow down to protest underpayment, Mike
56 Perrenoud, Inc., 236 NLRB 804 (1978); Robert Martin Construction
Co., Inc., 214 NLRB 429 1(1974).
60 Cornelius America. Inc., 194 NI RB 909, 912, 915 (1972).
^ 243 NLRB 125. 131 (1979).
Lopez did not check with or file grievances on behalf of
Lam and Ortega, or otherwise seek to bring compensa-
tion in line with the contract. Rather, he immediately re-
ported their efforts at a protest slowdown to Sadicario,
and Mike Lopez is one of the information sources cited
by Sadicario that Lam and Ortega were trying to cause a
slowdown. Lopez' report to Sadicario, in total disregard
of the interests of underpaid unit employees, establishes a
clear conflict between Lopez' responsibilities as shop ste-
ward and those he held as a supervisor. This is particu-
larly valid in the context of Lopez' general performance
as steward in that he did not know what unit employees
were earning, had not seen the contract, and had not
filed an employee grievance in at least 10 years, if ever.
Although Ortega testified that he earlier had lost con-
fidence in Lopez when he was laid off in December
1977, 1 week after having complained to Lopez that he
had not received a wage increase provided in the con-
tract, and that he thereafter paid his dues directly to the
Union, the Respondent's employees, including Lam and
Ortega, had been subject to various prior economic lay-
offs from which they had been recalled. The December
1977 layoff was not alleged in the complaint and it also
involved other employees. Ortega was thereafter re-
called, and quite possibly could have been laid off at that
time in any event. I therefore do not rely on that assert-
ed coincidence of timing in arriving at the conclusion
hereby reached that Lopez' duties as shop steward con-
flicted with his supervisory responsibilities, and that the
Respondent violated Section 8(a)(2) and (1) of the Act
by permitting him as supervisor to serve concurrently as
shop steward prior to his ouster by the Union from that
position. 6 2
4. The applicability of deferral to arbitration
In April 1978, the month after Lam and Ortega were
laid off and refused recall, their status was submitted to
arbitration before the impartial chairman designated in
the contract. The arbitrator concluded that the actions
taken with respect to Lam and Ortega were justified.
The Respondent argues here that, as Lam, Ortega, and
the Union had agreed to be bound, deferral to the award
is appropriate under Spielberg Manufacturing Company.63
In Spielberg, the Board held that it would honor a pri-
vate arbitration award disposing of a controversy before
the Board if "the proceedings appear to have been fair
and regular, all parties agreed to be bound, and the deci-
sion of the [arbitrator] is not clearly repugnant to the
purposes and policies of the Act." 6 4 A further showing
must be made that the arbitrator considered and resolved
the underlying unfair labor practice issue.65
,2 Also see lTT Artic Services. Inc., 238 NLRB 116 (1978).
s3 11
2 NlRB 1080 (1955)
H4 112 NILRB at 1082; Pioneer Finishing Corporation, 247 NLRB No.
182 (1980)
H' See Suburban Motor Freight. Inc., 247 NLRB No. 2 (1980), where
the Board overruled Electronic Reproduction Service Corporation: Madison
Square Offset Company. Inc., and Xerographic Reproduction Center, Inc.,
213 NLRB 758 (1974), which, absent "unusual circumstances" had per-
mitted deferral inder Spielberg to arbitration awards dealing with cases of
discharge or discipline even where no indication existed that the arbitra-
782
RUSS TOGS. INC.
In the instant case, both Lam and Ortega testified
without contradiction that both before and during the
hearing the Union's attorney who represented them at
the arbitration proceeding had refused to call or consider
as witnesses individuals whom they had advised him
would have testified favorably for them.66 Rather, when
the two men persisted, during preparation, that their wit-
nesses be called, the attorney reassured them that they
were going to the arbitration hearing just to see what the
Company presented. If there were a need for additional
witnesses, they would be called. However, at the hear-
ing, the union attorney again declined to call the wit-
nesses identified to him.
In finding that the Respondent's refusals to recall Lam
and Ortega were justifiable "de facto discharges," the ar-
bitrator noted: "Finally, the Employer maintains that
Lam and Ortega are, in effect, harassing the Company
by encouraging fellow employees to file grievances with
the Union." In his discussion, the arbitrator also found
that "Lam and Ortega were active in grieving the wage
rate then being paid and in encouraging others to follow
their example."6 7 Nonetheless, the arbitrator, in spite of
the Respondent's position that they had been terminated,
in part, for encouraging other employees to file griev-
ances with the Union, a protected activity, concluded
that they were validly discharged solely for inducing or
soliciting others to engage in a work slowdown.
In hese circumstances, I conclude that deferral to the
arbitration award would not be appropriate. While the
parties had agreed to be bound, I do not find that the
proceeding was fair and regular in that Lam and Ortega
were impeded in the presentation of their case by the
union attorney's refusal to consider and call witnesses
they had requested. This must be viewed in context with
the above finding that the Respondent had unlawfully as-
sisted the Union by permitting Mike Lopez as supervisor
to concurrently serve as shop steward and the Respond-
ent's contention that Lopez' report to Sadicario about
their activities had contributed to the action taken
against them. Accordingly, the interests of the Union and
those of Lam and Ortega herein did not coincide.
In reaching his conclusion of justifiable discharge, the
arbitrator also completely disregarded the Respondent's
contention at that proceeding that Lam and Ortega were
terminated, in part, for having encouraged "fellow em-
ployees to file grievances with the Union," activity pro-
tected under the Act. At the end of his award, the arbi-
trator merely noted, as a second "peripheral" point, that
"referral of employees by Lam and Ortega to the Union
for the purpose of filing grievances is not a reason for
discipline . . . workers must be free to solicit aid and
advice from their Union and to encourage others to do
likewise," but afforded this no significance. For the arbi-
trator to have found, as asserted by the Respondent, that
a reason for the discipline of Lam and Ortega had been
their protected activities and then to disregard the same
tor had considered, or had been presented with, the unfair labor practice
issue involved.
aa For example, one employee of the Respondent who testified in the
present matter that Lam and Ortega had not urged a slowdown was Jose
De La Cruz.
a; See G C. Exh. I(). "Opinion and Award," pp. 2 and 3.
is to deny consideration of the unfair labor practice issue,
contrary to Suburban Motor Freight, supra. As the activi-
ties of Lam and Ortega in pursuing their rights and those
of other employees under the contract constitute both
union and protected concerted activity, I find that the
award is repugnant to the policies of the Act, 6 8 and that
deferral is not warranted for that reason as well.
IV. 'HI EFFECT OF HEL UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the business op-
erations of the Respondent described 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 disputes burdening and ob-
structing commerce and the free flow thereof.
V. IHI REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1), (2), and (3) of the Act, I shall recommend that it
be ordered to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
As I have found that the Respondent unlawfully laid
off, with intent to discharge, Wing Shung Lam and
Hector Ortega and refuses to recall them, I shall recom-
mend that Respondent be ordered to offer them immedi-
ate 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, and that the Respondent make each of them
whole for any loss of earnings they may have suffered as
a result of the discrimination against them from March 9,
1978, when they were permanently laid off, until the
date Lam and Ortega are offered reinstatement. Backpay
shall be computed with interest as prescribed in F: W.
Woolworth Company,69 and Florida Steel Corporation.70
The Respondent also should cease and desist from in
any like or related manner interfering with, restraining,
or coercing with employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
CONCI.USIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent interfered with the administration
of the Union in violation of Section 8(a)(2) of the Act by
recognizing and dealing with Miguel (Mike) Lopez as a
shop steward and agent of the Union in such a manner as
to conflict with the interests of bargaining unit employ-
ees while Lopez was a company supervisor.
~ The Union Fork and Hoe Company, 241 NLRB 907 (19791
( 90 NLRB 289 (1950).
70 231 NLRB 651 (1977) See, generally, rt5i Plumbing d Heating Co.,
138 NLRB 716 (1962)
783
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The Respondent violated Section 8(a)(3) of the Act
by laying off and refusing to recall Hector Ortega and
Wing Shung Lam because they engaged in union and
protected concerted activities in enforcement of the
wage provisions of the collective-bargaining agreement
between the Respondent and Union.
5. The Respondent has violated Section 8(a)(1) of the
Act by the aforesaid and by the following additional
conduct in connection with its employees' union and
protected concerted activities in enforcement of the
wage provisions of the collective-bargaining agreement:
(a) Coercively interrogating employees as to their
union activities.
(b) Threatening employees with layoff and discharge.
(c) Conducting surveillance of the union activities of
its employees.
(d) Coercively searching an employee because he was
going to the Union's office in the presence of other
union-bound employees.
(e) Transferring employees to other work stations and
to more arduous duties.
(f) Subjecting employees to unusually close supervi-
sion.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER"
The Respondent, Russ Togs, Inc., Queens, New York,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees with respect to
their union and protected concerted activities.
(b) Threatening employees with layoff and discharge
because of their union and protected concerted activity.
(c) Conducting surveillance of its employees' union
and protected concerted activities.
(d) Coercively searching employees because of their
union activities.
(e) Transferring employees to other work stations and
to more arduous duties because of their union and pro-
tected concerted activities.
71 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.
(f) Subjecting employees to unusually close supervision
because of their union and protected concerted activities.
(g) Discharging, permanently laying off, or otherwise
discriminating against employees because of their union
and protected concerted activities.
(h) Interfering with the administration of Snow Suits,
Ski Wear, Leggings, Infants and Novelty Sportswear
Union, Local 105, International Ladies' Garment Work-
ers' Union, AFL-CIO, by recognizing and dealing with
any person as shop steward or other agent of that Union
while that person is its supervisor.
(i) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Wing Shung Lam and Hector Ortega imme-
diate and full reinstatement to their former positions, if
available, or, if those positions no longer exist, to sub-
stantially equivalent positions with the wage rate they
enjoyed at the time they were terminated, plus any in-
creases, and without prejudice to their seniority and
other rights and privileges, and make them whole for all
losses suffered by them as a result of the discrimination
against them in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve, and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and other records
necessary to analyze the amount of backpay due under
the terms of this Order.
(c) Post at its plant in Long Island City, Queens, New
York, copies of the attached notice marked "Appen-
dix." 72 Copies of said notice, on forms provided by the
Regional Director for Region 29, after being duly signed
by an authorized representative of the Respondent, shall
be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(d) 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.
72 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 L.abor Relations Board" shall read "Posted Pursu-
aalt to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
784