Sherry Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Aug 22, 1960

128 N.L.R.B. 739 (N.L.R.B. 1960)

SHERRY MANUFACTURING COMPANY, INC. 739
WB WILL withdraw and withhold all recognition from National
Brotherhood of Packinghouse Workers as the collective-bargain-
ing representative of any of such employees, and will not recognize
the said labor organization as such representative, unless and until
the said labor organization shall have been certified by the Board
as the representative of the employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights guar-
anteed in Section 7 of the Act, including the right to join or assist
Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, except to the extent that such right may be
affected by an agreement requiring membership in a labor organ-
ization as a condition of employment, as authorized in Section
8 (a) (3) of the Act, as modified by the Labor-Management Report-
ing and Disclosure Act of 1959.
SWIFT AND COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Sherry Manufacturing ; Company, Inc. and International Ladies'
Garment Workers' Union, AFL-CIO, Local Chapter No. 415.
Case No. 12-OA-1090. August 22, 1960
DECISION AND ORDER
On March 8, 19.60, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the General Counsel and
Respondent 1 filed exceptions to, the Intermediate Report, and briefs
in support thereof.
Pursuant to the provisions of. Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Rodgers and Jenkins].
'Respondent , in its exceptions , excepts to the failure to enforce subpenas served upon
the Florida Industrial Commission . The points raised -by. Respondent in support of its
exception were considered by the Board in Its Order, dated December 22, 1959, which
revoked the subpenas and denied enforcement . thereof. Accordingly, they will not be
further considered herein.
11,28 NLRB No. 86.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner
with the exceptions, modifications, and additions noted below.
1. We agree with the Trial Examiner that the Respondent unlaw-
fully discharged Lady Maria Ramos on June 3, 1959, because she
presented a grievance concerning working conditions in the plant on
behalf of herself and a group of her fellow employees. However,
unlike the Trial Examiner, we do not find Ramos' discharge to be a
violation of Section 8(a) (3) of the Act. Ramos' action in this respect
was not related to union activities of any sort, and, in the circum-
stances, her discharge, we find, in no way encouraged or discouraged
membership in a labor organization.
In presenting the grievance, Lady Ramos was engaged, however,
in a protected concerted activity within the meaning of Section 7 of
the Act. We find therefore that Ramos' discharge by Respondent was
a violation of Section 8 (a) (1) of the Act.
2. The Trial Examiner found that Respondent violated Section
8(a) (1) of the Act by unilaterally improving working conditions in
its plant through the installing of fans and a new drinking-water
system, by unilaterally granting a wage increase, and by putting into
effect a Blue Cross hospitalization plan. These acts occurred after
June 4, at a time when the Union represented a majority of Respond-
ent's employees. We agree that the granting of the wage increase and
the putting of the Blue Cross hospitalization plan into effect violated
Section 8(a) (1). We further find that these unilateral acts also con-
stituted a refusal to bargain by the Respondent, and were therefore
violative of Section 8(a) (5) of the Act, as well as Section 8(a) (1).
We do not agree however with the Trial Examiner's finding as to,
the installation of fans and a new drinking-water system. Respond-
ent was carrying on its operations in a partially completed plant which
was a replacement for one completely destroyed by fire. The old
plant had fans and a proper drinking-water system for the employ-
ees. Respondent, before the advent of the Union, had planned the
installation of new fans and a new drinking-water system as soon as
funds became available. In such circumstances, we find that their
installation after the strike began on June 4 did not violate the Act.
3. The Trial Examiner found that Respondent violated Section
8 (a) (1) by interrogating employee Mirta Padura. We do not agree.
Padura testified that she was asked on two occasions about signing a
union card. The first time was by Enrique Gonzalez and Jorge
Vasquez. The second time was by a person Padura identified only as
"Betty," and whose last name she did not know. The record shows
the "Betty" referred to to be Betty Aliano. As neither Gonzalez,
Vasquez, nor Aliano are supervisors, the Respondent is not responsible
SHERRY MANUFACTURING COMPANY, INC. 741
for their questioning of Padura. We therefore do not find Padura's
interrogation to be a violation of Section 8 (a) (1) by Respondent.
4. The Trial Examiner found that Respondent refused to bargain
with the Union on June 4 and again on June 12, and that on both such
dates the Union represented a majority of Respondent's employees.'
We agree and find that the Union represented a majority of Respond-
ent's employees on both these dates. We also agree and find that Re-
spondent refused to bargain with the Union on June 12 and thereafter.
We further find that the strike on and after June 12 was in protest of
this refusal to bargain, as well as in protest of the discharge of Lady
Ramos on June 4.
In view of our finding here as to the refusal to bargain on June 12,
and our finding that the strike against the Respondent was an unfair
labor practice strike on and after June 4, we deem it unnecessary to
determine whether Respondent refused to bargain with the Union on
June 4.
THE REMEDY
We shall adopt the Trial Examiner's recommendations regarding
the remedy with the following modifications :
The Respondent discriminatorily refused reinstatement to those
of its employees 3 who either went on strike on June 4, 1959 or were
on strike during the period from June 4 to June 30, 1959, despite their
unconditional offer to return to work on July 1, 1959. We shall there-
fore direct the Respondent to reimburse these employees for any loss
of pay they may have suffered by reason of the Respondent's dis-
crimination against them. Unlike the Trial Examiner, we shall order
the Respondent to pay to each of these employees a sum of money
equal to the amount that he or she normally would have earned as
wages from the date of their unconditional application for reinstate-
ment to the date of Respondent's offer of reinstatement, less his or her
net earnings during said period.
We shall also order the Respondent to bargain with the Union upon
request.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor-
2 We agree with the Trial Examiner 's findings as to the nonsu,pervisory status of three
individuals , Aliano, Perez, and Rivas we do not however adopt his finding that these
three employees are not to be included in the bargaining unit of production and mainte-
nance employees found appropriate by the Trial Examiner.
3 The employees are Mirta Padura, Josefina Blanco, Libia R. Calderon, Ada Cuardo,
Margarita Lichtl , Ernestina Fornes, Marina Rodriguez , Carmen Gloria Aragon, Lorenzo
Fernandez , Tula Ruiz, Maria S Gonzalez , Rosa Saurez, Ofelia Hernandez , Pablo A.
Valdespino , Julia Gonzalez , Alicia Hernandez , Teresa Torres , Migdilia Hernandez, Julia
Ramirez, Naria T. Gonzalez , Hortensia Ayala, Marina Ortuno, Evangelina De La Campa,
Maria L Lahullier, Eloisa Gimeno , Belia De Pertuz , Idolia Moreno , Ena M. Santos,.
Yolanda Mederos , Mishia J Alvarez , Josefina Rodriguez, and Mirta Sosa.
577684-61-vol. 128-48
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the Respondent, Sherry Manu-
facturing Company, Inc., Miami, Florida, its officers, agents, suc-
cessors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in any labor organization of its em-
ployees by discharging or otherwise discriminating against any of its
employees because of their concerted activities.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form or join labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection as guaranteed in Section 7 of the Act, or to refrain from
any or all of such activity.
(c) Refusing to bargain collectively with International Ladies'
Garment Workers' Union, AFL-CIO, Local Chapter No. 415, as the
exclusive representative of its employees in the following appropriate
unit : All production and maintenance employees, exclusive of office
clerical, guards, and supervisors as defined in the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Lady Maria Ramos immediate and full reinstatement
to her former or to a substantially equivalent position, without preju-
dice to her seniority and other rights and privileges; and make whole
the said Lady Maria Ramos in the manner set forth in "The Remedy"
section of the Intermediate Report.
(b) Offer to Mirta Padura, Josefina Blanco, Libia R. Calderon,
Ada Cuardo, Margarita Lichtl, Ernestina Fornes, Marina Rodriguez,
Carmen Gloria Aragon, Lorenza Fernandez, Tula Ruiz, Maria S.
Gonzalez, Rosa Saurez, Ofelia Hernandez, Pablo A. Valdespino, Julia
Gonzalez, Alicia Hernandez, Teresa Torres, Migdilia Hernandez,
Julia Ramirez, Maria T. Gonzalez, Hortensia Ayala, Marina Ortuno,
Evangelina De La Campa, Maria L. Lahullier, Eloisa Gimeno, Belia
De Pertuz, Idolia Moreno, Ena M. Santos, Yolanda Mederos, Mishia
J. Alvarez, Josefina Rodriguez, Mirta Sosa immediate and full re-
instatement to their former or substantially equivalent positions, with-
out prejudice to their seniority and other rights and privileges, and
make whole each said employee for any loss of pay he or she may have
suffered or may suffer by reason of the Respondent's discrimination
against him or her in the manner set forth in "The Remedy" section
of the Intermediate Report as modified by "The Remedy" section
of this Decision and Order.
(c) Upon request bargain collectively with International Ladies'
Garment Workers' Union, AFL-CIO, Local Chapter No. 415, as the
SHERRY MANUFACTURING COMPANY, INC. 743
exclusive bargaining representative of all employees in the aforesaid
appropriate unit.
(d) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and all
other records necessary to analyze the amounts of backpay due and the
right of reinstatement under the terms of this Order.
(e) Post at its plant in Miami, Florida, copies of the notice attached
hereto marked "Appendix A." 4 Copies of said notice, to be furnished
by the Regional Director for the Twelfth Region, shall, after being
duly signed by the Respondent's representative, be posted by the Re-
spondent immediately upon receipt thereof and maintained by it
for a period of 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
4In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in any labor organization
of our employees by discharging or refusing to reinstate any of
our employees or in any other manner discriminating in regard
to their hire or tenure of employment or any term or condition
of their employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-
organization, to form, join, or assist any labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL, upon request, bargain collectively with International
Ladies' Garment Workers' Union, AFL-CIO, Local Chapter No.
415, as the exclusive representative of all our employees in the
following bargaining unit with respect to rates of pay, wages,
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours of employment , and other conditions of employment, and
if an understanding is reached embody such understanding in a
signed statement.
The bargaining unit is:
All production and maintenance employees employed at our
Miami, Florida, plant , exclusive of office clericals , guards, and
supervisors as defined in the Act.
WE WILL offer to Lady Maria Ramos immediate and full rein-
statement to her former or substantially equivalent position,
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make her whole for any loss of pay suf-
ferred as a result of our discrimination against her.
WE WILL offer to each employee listed below immediate and full
reinstatement to his or her former or substantially equivalent
position , without prejudice to any seniority or other rights and
privileges previously enjoyed, and make him or her whole for
any loss of pay suffered as a result of our discrimination against
any such employee :
Mirta Padura , Josefina Blanco, Libia R. Calderon, Ada.
Cuardo, Margarita Lichtl, Ernestina Fornes , Marina Rodriguez,
Carmen Gloria Aragon, Lorenza Fernandez , Tula Ruiz, Maria S.
Gonzalez , Rosa Saurez , Ofelia Hernandez , Pablo A. Valdespino,
Julia Gonzalez , Alicia Hernandez , Teresa Torres , Migdilia Her-
nandez, Julia Ramirez, Maria T. Gonzalez , Hortensia Ayala,
Marina Ortuno, Evangelina De La Campa , Maria L. Lahullier,
Eloisa Gimeno , Belia De Pertuz , Idolia Moreno , Ena M . Santos,
Yolanda Mederos, Mishia J. Alvarez , Josefina Rodriguez, Mirta
Sosa.
All our employees are free to form, join, or assist any labor or-
ganization , and to engage in any self -organization and other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection , or to refrain from such activities.
SI-IERRY MANUFACTURING COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed on July 14 , 1959, and a subsequent amended and second
amended charge, filed by International Ladies' Garment Workers ' Union , AFL-CIO,
Local Chapter No . 415 (hereinafter sometimes called the Union or Local No. 415),
SHERRY MANUFACTURING COMPANY, INC. 745
the General Counsel of the National Labor Relations Board, on behalf of the Board,
by the Regional Director for the Twelfth Region, caused a complaint and notice
of hearing to be issued on September 30, 1959. The complaint alleges that Sherry
Manufacturing Company, Inc. (hereinafter sometimes called the Company or the
Respondent ), hag been engaging in and is engaging in unfair labor practices affecting
commerce as set forth and defined in the National Labor Relations Act, as amended,
61 Stat. 136, in violation of Section 8(a) (1), (3), and (5) of the Act.
The complaint asserts that: "all production and maintenance employees of the
Respondent employed at its Miami, Florida, plant, exclusive of all office clerical
employees, guards, and all supervisors as defined in Section 2(11) of the Act, con-
stitute a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act"; on or about June 4, 1959, a majority of the employees
in that unit designated or selected the Union as their representative for the purposes
of collective bargaining with the Union; said Union since that date has been such
representative and continues to be such; on that date and on various dates thereafter,
the Union requested Respondent to bargain collectively with respect to rates of pay,
wages, hours of employment , and other conditions of employment with the Union as
such exclusive representative; and on that date and at all times thereafter Respondent
refused and continues to fail and refuse to bargain collectively with the Union as
-such exclusive representative of the employees in that unit. It is asserted that the
Respondent engaged in further unfair labor practices in that on or about June 4,
1959, the employees ceased work concertedly and went on strike; on or about July 1,
1959, some 32 strikers applied for reinstatement to their former or substantially
-equivalent positions of employment , and Respondent refused and continues to refuse
to reinstate these strikers ; and prior thereto, on or about June 3, the Respondent
discharged an employee , Lady Maria Ramos, because of her union activities and
has failed and refused and continues to refuse to reinstate this employee to her
former or substantially equivalent employment because she engaged in activities
protected under the Act, including the presentation and pursuit of grievances.
The Respondent interposed timely answer to the complaint , setting up effective
,denials of violations of the Act and certain affirmative defenses. Almost immediately
after the filing of the answer to the complaint , the General Counsel filed an amend-
ment to the complaint and the Respondent filed timely answer to the complaint as
amended.' Pursuant to notice , and upon the issues raised by the pleadings herein,
this case came on to be heard before the duly designated Trial Examiner at Miami,
Florida, on November 2, 1959, and was closed on November 11. At the hearing
the General Counsel , the Charging Party, and the Respondent each was represented
by counsel Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues , to argue orally upon the record, to
file proposed findings of fact and conclusions of law, and to file briefs , was afforded
each party . Briefs were filed subsequent to hearing by counsel for the General
Counsel and counsel for the Respondent.
Upon the entire record in the case , and from his observation of the witnesses, and
after careful consideration , the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF SHERRY MANUFACTURING COMPANY, INC.
The Respondent, Sherry Manufacturing Company, Inc., is a Florida corporation
having its principal office and place of business in Miami, Florida , where it is engaged
in the manufacture and sale of beach towels and novelties . During the year imme-
diately preceding the filing of the complaint herein, a representative period, it sold
and shipped completed products valued at in excess of $50,000 directly from its
plant in Miami, Florida, to points located outside the State of Florida.
If. THE LABOR ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union , AFL-CIO, Local Chapter No. 415,
is a labor organization within the meaning of Section 2(5) of the Act.
I A motion filed by the General Counsel to make the Respondent ' s answer and defenses
more definite and certain , and a motion to strike, to dismiss , and for a more definite
statement or bill of particulars was filed by the Respondent, each being granted In part
by a Trial Examiner prior to the hearing herein. The information furnished according
to the orders of that Trial Examiner have been considered as being incorporated in the
pleadings herein
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M. THE UNFAIR LABOR PRACTICES
The Discharge of Lady Maria Ramos
The Company has been in business for approximately 11 years and until December
22, 1958, on which date the plant was entirely destroyed by fire, carried on its
operations at 122 N.E. 11th Street, Miami. Some 4 months later, April 2, 1959, to
be exact,2 operations were resumed at a new location in a new plant , on that
date not fully completed in that the installation of plumbing, the laying of electrical
conduits, and other work progressed in that building until about May 28. Full
construction was certified as complete by a building inspector about July 14.
At the old location, the Company had installed and operated a number of electric
fans for ventilation purposes and drinking water was supplied to its production and
maintenance employees by electric water coolers.
At the new plant, a one-room building, some 120 by 140 feet in size, the installa-
tion of fans and drinking fountains was anticipated but had not been accomplished
at the time operations were resumed on April 2.
Operations began at the new location with some 18 employees, which was increased
in number of approximately 58 as of June 3.
There are two departments, the sewing department and the silk screen or printing
department; some 35 employees as of June 3 were employed in the sewing depart-
ment and the others in the silk screen department. Employees within the sewing
department sew garments, the sewing operations consisting of more than one stage
and requiring the use of different types of sewing machines; the employees in the
silk screen department are engaged in printing designs on towels, on wearing apparel,
and different novelties manufactured and sold by the Company.
At approximately 2 o'clock in the afternoon of June 3, Quentin Sandler, the
president of the Company, was informed by his assistant that the floorlady had told
her that she was having trouble in the sewing department with one of the employees
and asked that Sandler settle the difficulty. According to Sandler, he asked the
floorlady, Beatrice Perez, what the trouble was and who was causing the commotion,
and that Perez informed him that "that girl right over there, Lady Ramos, is com-
plaining about the heat and the door being closed and please go over and see if you
can quiet her down. I can't do a thing with her." Sandler said he walked over to
Ramos, asked her what the trouble was and that she said in a very loud voice, her
arms were waving in the air, "you close that big door, you can't close that door
unless you put fans in." Mrs. Ramos continued to protest vigorously to President
Sandler concerning the considerable heat within the plant where female employees
were working in the sewing department when the door referred to-an outside door
leading to a loading platform-was closed. She informed Sandler that it was im-
possible for her and the other girls in the sewing department to work in the "un-
bearable" heat without fans. According to Sandler he instructed her to return to
work and explained to her that the doors would be open in a few minutes but "it's
raining now and the merchandise will be damaged." According to Sandler, Ramos
kept on talking, waving her arms and talking in a loud tone of voice in a manner
which Sandler considered insulting. He said he returned to his office, called in his
assistant and the forelady, and discussed the conduct of Ramos. In the words of
Sandler:
We discussed the fact that Lady Ramos was working there for a few years,
3 or 4 years at the time, and that any consideration should be given that was
due to her, and Beatrice [the forelady] just kept saying, "well, I have had
trouble with this person before, and I have been able to quiet her down and keep
her in line, but at this time," she said, "right now, I can 't do anything with her."
We asked Mr. Fernandez [ Sandler's assistant ] what she thought we should do
and I also asked Beatrice what we should do in view of this situation, what we
should do.
Q. (By Mr. SAAD.) What did you decide?
A. We decided since it was around 2 or 2: 30 to make her check up and
dismiss her and let her go at 3:30, figure her time up to 3:30 that afternoon.
Q. Now, what was the reason for the decision to dismiss Lady Ramos?
A. The reason was the manner in which she acted.
Q. When she was speaking to you, was it in a manner that could be described
as being insolent?
A. Yes, very insolent.
Unless otherwise mentioned, all dates hereinafter mentioned are for the year 1959
SHERRY MANUFACTURING COMPANY, INC. 747
During the course of this conversation or discussion between President Sandler
and Mrs. Ramos, the latter referred to the fact that Sandler had an air-conditioned
office and an ice cooler there which was unavailable for use of employees in the
plant; and pointed out to him that the water supplied to the employees was out
of galvanized cans, one can being placed in the printing department and the other
in the sewing department. Sandler said he pointed out to Mrs. Ramos that it was
his intention to install drinking fountains and electric fans as soon as he could, and
further, that he pointed out to her that it was necessary to close the loading platform
door because of the driving rain; that if the door was not closed merchandise
placed near that door would be damaged and that she then said to him "You don't
worry about us. You work in your air-conditioned office where it is nice and cool
and out here we have to work in the heat"; that a number of the employees had
stopped their machines and were watching and listening to the conversation which
lasted for perhaps 2 to 4 minutes.
Mrs. Ramos' version of the conversation is as follows: On this particular after-
noon there was an unbearable heat and then it began to drizzle at which time the
front door was closed . She said that everybody was very warm, that everyone was
talking about it and they had agreed that they could not put up with the condition
because it was not possible to work there with the door closed.3 She said that the
floorlady approached, asked what was going on there that caused all the talking,
that Mrs. Ramos told her nothing was happening, that everybody was talking and
complaining that they could not work because it was so very hot and the door had
been closed, and asked the floorlady why the door could not be opened, to which
the floorlady replied: "Tell Mr. Sandler about it." At that point, she said Sandler
passed by and she called to him and he came over and asked what was going on.
Mrs. Ramos told him that nothing was happening except that there was a lot of
heat and that "we couldn't work." Mrs. Ramos testified:
Then he said, "well, I'm not warm." I said, "you aren't warm because you got
air-conditioning in your office." "Well, what is it you people want, air-condi-
tioning?" "No," I told him, "we don't want air-conditioning. Just put some
fans in and open the door." He says, "if I open the door the material will be
wetted," and he said "who is going to pay for that, you?" I told him, "no,
I'm not going to pay for it." Then he went and nothing else happened.
Other witnesses testified concerning what was said between President Sandler and
Mrs. Ramos at this time. With regard to the testimony of each, it plainly appears
that they are in substantial agreement as to what was said by each one of the two.
As stated by counsel for the Respondent, the ultimate question is, was Lady
Ramos discharged because of her inappropriate manner in speaking to the president
of the Company, or was she discharged because she was presenting a grievance on
behalf of the other employees?
It is apparent from the testimony of each of the witnesses who described the
episode that Mrs. Ramos presented her grievance, which by implication was the
grievance of the other employees in the sewing department, at least in a vigorous
and emphatic manner. No claim is made that she used unseemly language. The
conversation was of short duration; thereafter Mrs. Ramos continued at her work,
as did the other employees in the sewing department up until the end of the day
at 3:30 p.m.
Just before closing time , Mrs. Ramos was called to the office and was paid in
full for her work and discharged.
There is considerable testimony in the record concerning Ramos' energetic yet
comparatively brief discussion with Sandler. There is in general a consensus of
opinion that Mrs. Ramos soon quieted down, that no insulting words were used
during the course of the discussion, there was no substantial interference with
production and that there was no insubordination exhibited by Ramos in any respect
nor any refusal on her part to resume work at the conclusion of the conversation.
The characterization of Ramos' behavior in words seems to be more the personal
feeling of Sandler that he was insulted, rather than the use of prohibited language-
vulgar or insulting. I have had the benefit of observing both Mrs. Ramos and
President Sandler as witnesses and each of them at the hearing conducted himself
or herself with propriety. Mrs. Ramos impressed me as being no more excitable
or voluble than would be expected and, from the reports both of Sandler and
Ramos, and the other witnesses concerning the discussion between them on June 3,
s It appears that there were two small windows on the loading platform side of the
building rather high up from the floor, obstructed by merchandise piled under and
before them.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is hard for the Trial Examiner to glean insolence or insult from the words or
demeanor of Ramos in presenting the grievance she had to Sandler at the time
she did .4 However, Mr. Sandler did see such a petition on the desk of Mrs. Fernan-
dez who had received it from the floorlady ; he said he had instructed the floorlady
to explain to the girls that fans would be installed comparatively soon.
Implicit in the testimony of President Sandler is the fact that Ramos was com-
plaining, not only on her own behalf, but on behalf of the other employees in the
sewing department . On the basis of the testimony of Mrs. Ramos, Mr. Sandler,
Marina Ortuno, and other employees , a reasonable inference , if not the actual
fact, may be drawn or found that the floorlady , as well as Mrs. Fernandez and
Sandler, were well aware of the complaints of the girls in the plant and their dis-
comfort arising from the lack of adequate ventilation and drinking facilities. Mrs.
Ramos, it is clear, spoke not only for herself but for her fellow employees when
she protested these conditions to President Sandler.
When Mrs. Ramos was called to the office on the afternoon of June 3, the rest
of the girls in the sewing department , suspecting that she was to be disciplined or
discharged , waited for her outside the building to find out what had happened.
After Ramos had informed them that she had been discharged , the girls decided to
return and talk to Mr. Sandler and protest against that discharge . They entered
the plant and talked to Mrs. Evelyn Fernandez , President Sandler 's first assistant
and plant superintendent , Marina Ortuno and Maria San Gonzalez acting as spokes-
women for the group . They told Mrs. Fernandez they wanted to talk to Mr.
Sandler about Lady Ramos; Mrs. Fernandez informed them that he was too busy
at the moment to talk to them, but to come back in the morning and bring the matter
up at that time.
The Strike
On the following morning, June 4, the girls met about 10 minutes before 7
o'clock, on the plant parking lot, and went into the plant in a group with the purpose
of requesting Mr. Sandler to rescind Ramos' discharge. Mrs. Ortuno testified:
. the first thing we asked him was to take Lady Ramos back , and then he
said, it was the policy of the Company when they let someone go , they would
never hire them again . And then we talked about the fans and he said that I
don't know whether you know it or not but the Company had a fire about a
year ago and at the moment we don't have any funds to buy any fans.
The group decided that if the Company refused to reemploy Ramos, no one would
return to work. The employees all went out of the plant except Mrs. Ortuno, who
remained to make a further attempt to persuade Sandler to change his mind , without
success During the course of this meeting, Sandler instructed the girls to go
back to work ; however , the group did leave the plant . Almost immediately 28 of
the group proceeded to the union office, while five, including Mrs. Ortuno , stayed
behind at the plant , stationing themselves in an automobile parked on the lot. After
the main group had left to go to the offices of the Union , one Musa, a cutter employed
by the Company , spoke on behalf of Sandler , to the employees who had remained
behind , and requested them to return to work. First, according to Mrs. Ortuno,
Musa said that at one point Sandler had agreed that Mrs. Ramos could return to
work and then about 5 or 10 minutes later said that Sandler had changed his
mind and for the girls to stay out of the plant.
When the group of girls arrived at the offices of the Union a few minutes before
9 o'clock on the morning of June 4, they waited for the offices to open. A few
minutes later, at about 9 o'clock , James Belluso, business agent for the Union,
arrived ; he was told the circumstances causing the gathering in his office, and he
requested them to wait for the arrival of William Krost , an organizer for the
Union, who would be able to translate from English to Spanish and Spanish to
English for the benefit of those employees who were not able to speak or under-
stand English with any degree of accuracy Krost arrived a few minutes later
4 Mrs Ramos testified that approximately 1 week before her discharge , Maria Teresa
Gonzalez , an employee , circulated a petition signed by a number of the workers directed
to Mr Sandler asking for the installation of fans and that such petition was handed
Beatrice Perez, the floorlady. When Maria Teresa Gonzalez was called as a witness, late
in the hearing, the Trial Examiner excluded as cumulative any evidence with respect to
what she had to sav concerning the conversation between Ramos and Sandler which led
to the discharge of Ramos He did not at that time have in mind the testimony of Ramos
concerning the petition circulated by Gonzalez Counsel did not inquire, either on direct
or on cross , of Maria Teresa Gonzalez concerning the petition , perhaps under the mistaken
but natural supposition that the Trial Examiner had foreclosed examination on that point.
SHERRY MANUFACTURING COMPANY, INC. 749
and the girls explained to him what had happened the day before and that morning
at the plant. Belluso through Krost as interpreter explained to the girls that in
order for the Union to represent their interests it must be established that the
Union represented at least a majority of the employees, explained to the girls that-
this showing could be made if they signed authorization cards and explained 5 the
reason why such authorization cards should be in the possession of the union repre-
sentatives at a time when the matter could be brought to the attention of the
employer by the Union. During the morning, authorization cards, printed both in
English and Spanish, were circulated among the girls in the union office and 28
signatures were then obtained. Later, at about 11 o'clock, Mrs. Ortuno and Maria
Theresa Gonzalez came in and they, too, signed union cards. Three other author-
ization cards were obtained later that day from the other girls who had walked out.
With these cards in his possession, Belluso telephoned Sandler and arranged to
meet with the latter at his office at about 3 p in. that afternoon. The appointment
was kept and Belluso with Krost met with Mr. Sandler and Mrs. Fernandez in
Sandler's office that afternoon. Business Representative Belluso informed President
Sandler that he was formally requesting union recognition on behalf of the employ-
ees and informed Sandler that the Union represented a large majority of those
employees. According to Belluso, Sandler said he was not prepared or would not
then agree to anything at the time; that he would not agree to recognize the Union
and said as to those employees who had walked out, they were no longer his employ-
ees. Sandler refused to sign a form of recognition of the Union presented to him
by Belluso and requested time to consult hisattorney. It seems clear enough, from
the testimony of Belluso, Krost, Sandler, and Mrs. Fernandez that at this June 4
meeting Sandler did not particularly question the Union's claim of a majority of
the employees, but rather insisted that he regarded them as ex-employees, and not
as strikers or employees entitled to union representation. This meeting was termi-
nated; Belluso left Sandler's office in order to keep an appointment in Atlanta, with
the understanding that he would communicate with Sandler upon his return
According to Krost, Belluso, before he boarded an airplane on the afternoon
of June 4, instructed him to have picket signs prepared and be ready to start picket-
ing should Sandler not change his mind and recognize the Union. After receiving
a telephone call from Belluso, who was in Atlanta, Georgia, on the morning of
June 5, Krost obtained picket signs (prepared the day before or that morning) and
picketing started at the premises of the Company at about 1:30 p in on June 5.
5It is argued on behalf of the Respondent that the General Counsel has the burden of
showing that the 5 employees who remained at the plant on June 4 after the other 28 had
left the plant to go to the union hall signed willingly and with knowledge of what they
were doing In support of this theory or argument the Respondent cites Puerto Rico
Food Products , 111 NLRB 293, 295. In that case one Febres, who had presided at union
meetings , told certain employees that unless they joined the union, they would lose their
jobs, upon which testimony the Trial Examiner excluded written designations of six
employees in a determination of the union's majority status The Board held
The Trial Examiner erred in treating the evidence of coercion as a factor that could
be ignored by a simple mathematical exclusion The effect of the coercion exercised
by Febres, though not entirely possible to calculate, should have been more realisti-
cally measured in the light of its extensive character and the further fact that
Febres was a supervisor Here is no isolated instance of a rank-and-file employee
inadvertently overstepping the bounds of legitimate union activity Ten of the
approximately 00 subordinate employees in the unit testified to Febres' threats of
economic reprisal if they failed to join the union And it is altogether likely that
the threats were either addressed to or overheard by other employees because those
coerced testified that Febres threatened "us " Accordingly, we find that the coercion
practiced by Febres tainted the Union's entire majority. As the General Counsel has
not proved that the union represented an uncoereed majority of employees in the
appropriate unit, the Respondent's refusal to bargain with the union was not
unlawful
That ease is entirely inapplicable as it concerns a situation in which these five employees
signed union authorization cards. Credible testimony herein, including that of Mrs Ramos
and Mrs Ortuno, is to the effect that the five stayed behind in order to see what would
happen at the plant while the others went to the union ball, and that they voluntarily
and willingly and with full knowledge of the implication of their action, signed the
authorization cards Nor is there present in the instant case such "clear threats of
present loss of employment if the employees refused to become members" as was found in
Lerner Shops of Alabama, Inc, at at, 91 NLRB 151.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Picketing continued until June 29, on which day an Order was entered by a Judge
of the Circuit Court , Dade County , Florida, enjoining further picketing.
Between June 4 and 12, additional authorization cards were supplied to the Union
by employees so that on June 12, the Union held a total of 53 such cards.
On June 12, Belluso and Krost met again with Sandler at a local restaurant.
Belluso then again asked for recognition of the Union , to which Sandler replied
that he wanted to know what the union demands would be. Belluso told him the
first step would be for Sandler to sign a memorandum recognizing the Union as the
representative of the employees and then negotiate a contract after the Union had
been accorded recognition . Sandler wanted to know the nature of the Union's
demands, and Belluso explained to him the contents of what he called the, union
standard agreement , covering vacations , paid holidays, insurance , minimum wages
and so on . Belluso suggested that if Sandler doubted that the Union represented a
majority of the employees , that a third party be brought in to check both the payroll
records of the Company and the signed authorization cards in an effort to determine
the majority question . Belluso displayed the authorization cards to Sandler, who
did not desire to examine them. This meeting ended with the understanding that
Belluso would await a telephone call from Sandler that evening.6
After picketing was enjoined by the State court on June 29, Belluso, Krost, and
the strikers held a meeting at the union hall on the morning of June 30 . After that
meeting Belluso sent the following Western Union telegram to Sandler:
The strike of your employees which began June 4 1959 is hereby called off.
This telegram constitutes an unconditional offer on behalf of all your striking
employees to return to work. They will report to work tomorrow Wednesday
July 1 1959 at 7 am.
On July 2, 1959, Sandler sent the following letter to Belluso:
In connection with your telegram received on July 1, 1959, this is to advise
you that Sherry Mfg. Co. Inc. does not acknowledge that its employees have
been on strike since June 4, 1959.
The employees of Sherry Mfg. Co. Inc. have never been on strike and have
never called a strike. The individuals that you are referring to as striking
employees , at the time they commenced their activity were not employees of
Sherry Mfg. Co. Inc. on June 4, 1959.
I will consider any and all individuals whether they are members of the
Union or not, upon application for employment with Sherry Mfg. Co. Inc. In
the event that employees are needed , they will be employed on an equal basis
as all other employees of Sherry Mfg. Co. Inc.
I am gratified to see that the former employees of Sherry Mfg. Co . Inc. desire
to unconditionally return to work to Sherry Mfg. Co. Inc. as it is indicative
of the fact that Sherry Mfg. Co. Inc.'s management of its employees is consid-
ered one of the highest in the Miami, Dade County, area.
The Conditional Offer of Reemployment
Some 30 strikers congregated on the parking lot shortly before 7 o'clock on the
morning of July 1, and at 7 o'clock were informed by Betty Aliano , who was em-
ployed in filling orders ("stock picker"), that Mr. Sandler would see them in his
office. The group found Mr. Sandler together with Mrs. Fernandez awaiting them
in the office , at which time Mrs. Ortuno, as spokeswoman , informed Sandler that
they were ready to return to work . Sandler said that was fine , and thereupon dis-
tributed a form of application , one printed in Spanish and the other in English,
and instructed the girls to fill them out and sign them. The form of application
blank in English was identical to the one printed in Spanish language. After the
distribution of the application for employment, the girls discussed it among them-
selves and finally decided that it meant that they would have to return as new
employees and therefore they did not want to sign their names to such an applica-
tion. Mrs. Ortuno so informed Mr. Sandler and told him that the girls desired to
think it over further and would communicate with him on the following morning.
They left Sandler's office in the plant and called at the union hall. On the following
E The testimony of Sandler is not too clear as to whether or not he asked for proof of
the Union ' s majority on both June 4 and June 12. It seems , though , that he did make
such a request on June 12 on the advice of his attorney , but the Trial Examiner is of
the opinion , on the basis of the testimony of Sandler , that he did not make such request
on June 4, but took the position that the employees who had walked out on June 4 were
no longer employees of the Company.
SHERRY MANUFACTURING COMPANY, INC. 751
morning they returned and informed Sandler that they could not sign the applica-
tion, and that if he could not take them back without such application for employ-
ment they would not return to work. Sandler replied that they would have to
complete the form and sign it or otherwise they could not return to work. He
testified, in connection with his request that the returning strikers fill out the appli-
cation form, that records of the Company, including applications on file, were
destroyed in the fire of December 22, 1958; that after that and up until the opening
of the new plant and the seasonal slackening off of business in the spring, the
Company had not had new application forms made out by its employees. He said
that the form of application for employment used prior and up to the fire and
thereafter, until the opening of the new plant, was the same form as. that presented
to the group on July 1. He explained that he desired to have the applications
completed both for record purposes and to use in connection with the institution
of the Blue Cross plan. At the meeting in his office on July 1, a number of the
girls heard him say in response to their question, that he required them to fill out
the form of application under a "new rule." There can be no question that Sandler
made the signing of the application for employment a condition to the reinstatement
of the strikers; nor can there be any question but that the return of the strikers and
their unconditional offer to return to work was not premised upon the reemployment
of Mrs. Ramos or any other former employee or employee. The testimony of Mrs.
Ortuno in this respect, substantially as summarized above, was corroborated by the
testimony of Mrs. Ramos, and employee Alicia Hernandez.7
Sandler's explanation of the requirement for the signing of the form of applica-
tion-that he needed the information in connection with a Blue Cross hospitaliza-
tion or benefit plan which he was then negotiating, to be put into effect at about that
time is specious because on its face, simply because, except for names and addresses
and other information usually called for by an insurance carrier, nothing else on the
face of the application would be helpful with respect to the type of benefit, cost, or
any other detail concerning the application of a Blue Cross plan to an individual
employee. This explanation of the reason of Sandler for requiring the execution of
the application for employment on July 1 is expressly rejected by the Trial Examiner.
The Employer's Grant of Certain Benefits
The General Counsel contends and has proved that subsequent to June 4, the
Company unilaterally improved working conditions in its plant by installing fans
and a new drinking-water system; that it unilaterally announced and put into effect a
wage increase; and that it unilaterally announced and put into effect a Blue Cross
hospitalization plan. These actions, the General Counsel says, establish the failure
and refusal of the Company to bargain collectively with the Union on these as well
as other conditions of employment, and that by engaging in such conduct has inter-
fered with, restrained, and coerced its employees from engaging in Union or con-
certed activities for the purpose of self-organization.
Wage increases of 5 cents or 10 cents an hour were put into effect, 30 such in-
creases being made for the week ending June 17; 2 such increases during the week
ending June 24; 1 such increase during the week ending July 1; and another such in-
crease for the week ending July 8. Five employees employed after June 4 received
no such increase.
The fact of the wage increases was stipulated between counsel at the hearing.
Acting upon instructions from President Sandler, Mrs. Fernandez negotiated a
hospitalization benefit contract in the form of a Blue Cross plan during the month
of June, the agreement being signed in June to become effective on or about June 30.
7 The application for employment presented by Sandler to the strikers contained a
statement to the effect that the employee authorized investigation of all statements con-
tained in the application and that "I understand that misrepresentation or omission of
facts called for is cause for dismissal Further, I understand and agree that my employ-
ment is for no definite period and may, regardless of the date of payment of my wages
and salary, be terminated at any time without any previous notice " Mrs Ortuno and
others of the employees objected to that; Sandler told them that they could strike that
part out by pencil if they so desired before signing the application form. There is also
some testimony to the effect that Sandler told the girls at this time that they could cross
out any paragraphs contained in the form to which they objected. However, the fact
remains that he required the signature on the application form as a condition of employ-
ment It further is soundly established that the girls believed that upon signing the
application, they would be held to be new employees, and would lose whatever rights they
might have previously acquired in employee status during the time of their employment
by the Company.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the month of June, fans and drinking fountains were installed in the plant
for the use of employees. Prior to June 30, the Company announced to its em-
ployees then at work that it intended to institute a Blue Cross and a Blue Shield plan,
and, after the execution of the agreement, notified its employees of the plan by
distributing a leaflet to each of its employees. The leaflet, or printed form, was one
issued by the insurance carrier, being printed in Spanish and in English.8
The Appropriate Unit
President Quentin Sandler and Mrs. Evelyn Fernandez, his assistant and plant
superintendent, together with Forelady Beatrice Perez and Foreman Henry Betten-
court constitute the executive and supervisory personnel of the plant. There is in
dispute the status of three individuals, Gliceria Perez, Eloina Rivas, and Betty
Aliano. The Company contends that all three should be included in the bargaining
unit; the General Counsel takes the position that they should be excluded on the
ground that Gliceria Perez and Eloina Rivas are office clerical employees, and Betty
Aliano a supervisory employee .9
The unit claimed to be appropriate here-that is, all production and maintenance
employees, excluding office clerical employees, guards, and supervisors as defined
in the Act has traditionally been held by the Board to be appropriate for purposes
of collective bargaining.
It was stipulated at the hearing that on June 3, 56 employees were working at the
plant in the classifications included in the unit, other than the 3 employees above
mentioned, so that if they are to be included in the unit the total would be 59 em-
ployees in the unit as of June 3. On June 4, when the Union first requested recogni-
tion, the appropriate unit claimed by the General Counsel comprised a total of 56
employees. The 56 employees would not include Lady Maria Ramos. Two em-
ployees, Dora Snyder and Gloria Denton, were hired during the week of June 4.
The number of employees appropriately included within the unit, therefore, would
be either 56 as asserted by the General Counsel, or 61 as claimed by the Respondent.io
6 Sandler did not furnish a copy of this leaflet to the strikers to whom he talked in his
office on July 1, nor did he tell them that the Blue Cross plan was in effect, but con-
fined his remarks in that connection to the Company's need for the forms for "the
purpose of our records and purposes for the Blue Cross form."
9 The status of Betty Aliano, said by the General Counsel to be a supervisor within
the meaning of the Act, and that of the two office clerical employees, Eloina Rivas and
Gliceria Perez, has not been decided by the Trial Examiner because in view of the finding
made below , of a union majority , makes it unnecessary so to decide . However, were it
necessary, he would find that Aliano performed work of a routine nature in the small
printing department, occasionally showed an employee which screen to use, acted as a
Spanish speaking relay to give instructions from President Sandler to other employees,
and instructed employees concerning the amounts of merchandise ordered as a purchase
from which an employee would make up the merchandise order Aliano had no function
as a supervisor as set forth in Section 2(11) of the Act Rivas was an invoice clerk,
she was hourly paid, worked in the shipping department where she filed orders and
records of merchandise shipped by the Company ; she worked in the billing office located
adjacent to the factory area, and her primary job was the preparation of invoices by
writing up the invoice and then taking the packing slip into the factory and attaching
it to the order. She also helped fill orders Perez checked invoices in the billing office,
checked credit memoranda, restacked merchandise returns, placed invoices on orders,
and worked in the same billing office as Rivas. Perez was tinder the printing department
for payroll purposes. She had no supervisory duties. These three employees would not
be included within the appropriate unit.
io There is a suggestion on the part of the Respondent that certain additional employees,
allegedly on temporary layoff status, properly could be considered as part of the appropri-
ate unit. The Trial Examiner will not consider employees who had worked and who had
been laid off prior to June 3, for two reasons- (1) the Respondent had no established
layoff policy and employees who were recalled from time to time were picked at random,
some because they were available and capable, and others because of proved prior superior
performance, combined with that the fact that new employees frequently were hired be-
fore any effort was made to recall former employees; and (2) the evidence establishes
that there is a slack in work during an off-season, that is, that part of the year from
about April through May to June. On the basis of the facts presented at the hearing,
it would seem to be highly unprofitable to try to determine which of the prior employees
on layoff status on June 3, actually had seniority or employment rights In the opinion
of the Trial Examiner, there was no such thing as seniority in respect to layoffs and
recalls.
SHERRY MANUFACTURING COMPANY, INC. 753
It further was stipulated that of the 53 employees whose names are listed in the
record herein, claimed to have been within the appropriate unit on June 3, 7 were not
employees of the Respondent on the critical dates (June 4 and June 12). This
leaves a total of 46 signatures relied upon by the General Counsel to establish the
majority status of the Union. Tranquilina Perez is one of the seven not claimed by
the General Counsel to, be within the unit.
The Union's Authorization Cards
As related, a total of 32 employees out of the whole number employed in the
plant walked out on June 4 and remained on strike until June 30. Most of these
employees thereafter helped picket the plant and received strike benefits from the
Union.
Twenty-eight of the employees who joined in the walkout on June 4 went to the
union hall on that morning where, in the presence of Union Representatives Belluso
and Krost they signed union authorization cards. Each of the 28 employees then
present signed cards while in the union hall in the presence of Krost and Belluso,
and Krost testified that he could identify, and did, 22 of these employees by name.
(Of the 22 signatures those of Lady Ramos and Tranquilina Perez were included.
As indicated I do not consider Tranquilina Perez to be a part of the bargaining
unit.)" Six other signatures (those of Mirta Sosa, Josefina Rodriguez, Josefina
Blanco, Yolanda Mederos, Mishia J. Alvarez, and Ena Santos also were obtained
in the union office on the morning of June 4. These employees unquestionably
were among the group that walked out on that morning and were identified by Mrs.
Ramos as being present in the union hall and having signed cards there that morning.
It is uncontradicted, too, that in early afternoon of that day Mrs. Ramos was furnished
with blank authorization cards by Krost, returned to the plant and brought lunch to
the five employees who had joined in the morning walkout, but who had stayed out-
side the plant and had not gone to the union hall, and that at that time Mrs. Ramos
secured the signatures of these employees, returned to the union office, and delivered
the signed authorizations to Business Agent 'Belluso. Thus, when Belluso and Krost
saw Sandler on the afternoon of June 4, they had in their possession signed cards of
31 employees in addition to those of Mrs. Ramos and Tranquilina Perez.
As employees left the plant at about 3:30 p.m. at the end of the workday on June
4, Mrs. Ramos secured the signatures of Jorge Vasquez, Erminia Chirchillo, Petra
Aguila, Manuel Monzon, and Maria Suarez.
Subsequent to June 4, and up to the time of the meeting of June 12 between
Messrs. Belluso and Krost and Mr. Sandler, Mrs. Ramos obtained eight additional
signatures to authorization cards from employees Mirta Padura, Elsa Leon, Arsenio
Vazquez, Edilberto E. Valdespino, Juana Palacio, and Olga Sanchez. The card of
Francesca E. Hernandez was eliminated by agreement of the parties. Belia de
Pertuz signed an authorization card in the presence of Krost at the union office on the
morning of June 8. Thus the signatures of 22 employees obtained and identified
by Krost and the signatures of 24 employees obtained and identified by Mrs. Ramos,
constitute the 46 employees which, the General Counsel contends, show a union
majority within the bargaining unit.12
11 Tranquilina Perez was discharged from the employ of the Company on June 2
Jorge Vasquez, an employee, testified that he heard Mrs. Ramos speaking to Miss Perez
and a group of women in front of the plant on the morning of June 3, preceding the
discharge of Ramos, and that Ramos said to her (Perez) "I am going to try to get them
to fire me" and that a group of girls were present at the time Ramos made this state-
ment to Perez. Vasquez testified that he overheard this conversation at a time when
Ramos was talking to and trying to stir up a group of women in front of the plant.
This testimony apparently was intended to show that Ramos deliberately sought her
discharge on June 3 ; it stands alone in the record. In the first place, there is no
testimony anywhere to the effect that there was a gathering in front of the plant on
the morning of June 3. Second, all of the credible testimony in the record reflecting
the gathering of the female employees was on the morning of June 4, after the discharge
of Ramos. Vasquez suffered some confusion before he finally said definitely that he
overheard Ramos' statement on the morning of June 3 Vasquez on the witness stand,
while positive in his statements, was not definite in regard to the facts he attempted to
relate and the Trial Examiner completely discredits his testimony in the respects noted.
12When Belluso and Krost called on Sandler on the afternoon of June 3, they had in
their possession 33 authorization cards (31 plus Ramos plus Tranquilina Perez).
Because Perez had been discharged on June 2, I do not consider her card a valid card so
that there were 32 valid cards in the possession of Belluso at that time. There can be
no question but that Belluso and Krost were acting in good faith and believed that
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that the 46 signatures were sufficiently proved as having been executed by
the employees and each of them , and delivered to the proper representatives of the
Union. I do not understand that the Respondent questions the fact that each of
these cards was signed by the person shown to be the signator of each card. How-
ever, on behalf of the Respondent, it is contended that for various reasons all but
17 of the 46 cards are invalid to prove a union majority for the purposes of col-
lective bargaining on either June 4 or June 12. It therefore is necessary to consider
the contentions of the Respondent separately in connection with some 29 signed
authorization cards.
The person whose cards are objected to by the Respondent as not being evidence
acceptable to show union majority, and the reasons therefor, are these:
Petra Aguila, Erminia Chirchillo, Manuel Monzon, Maria Suarez, Gerardo
Vazquez, and Edilberto Valdespino: Objection is made to the consideration of the
authorization cards of these employees on the grounds that the testimony of Mrs.
Ramos indicates that the signatures were procured after the alleged bargaining de-
mand on June 4 and that no time or date was specified which would show when
Monzon's card was signed . Accordingly, it is said, these cards could not be counted
as part of a majority designation at the time Belluso and Krost met with Sandler
on June 4.
There is no question but that Mrs. Ramos secured the signatures of these six
employees on or after June 4 and before June 12. It would not make a particle of
difference whether their cards were among the 32 valid cards held by Belluso and
Krost on the afternoon of June 4. The fact remains that they did have 33 signed
cards, including the one signed by Tranquilina Perez. Consequently, the contention
of the Respondent with respect to the validity of these six cards is unsound.
Erminia Chirchillo and Maria Suarez: The Respondent contends that the cards of
these two employees were procured by fraud.
The testimony herein in substance shows that Chirchillo first did not recall when
she had signed but that later she claimed she had done so on June 5. She was with
Maria Suarez at the time she was asked to sign by Ramos; she said she signed the
card because she wanted to keep on working, keep her job, and avoid trouble. She
said that she knew that at the time the card was signed it meant that she wanted
the Union to represent her and then, in response to a question by one of counsel
for the Respondent, she said that at the time she signed the card she did not want the
Union to represent her. Actually, I find that Chirchillo signed the card or Suarez
signed it for her shortly after 3.30 p.m. on June 4 and I find further that on the
basis of the whole of Chirchillo's testimony she knew when she signed the card
that she was signing it in order to authorize the Union to represent her so that she
would be able to keep her job. Maria Suarez testified in substance that she signed
the card at Chirchillo's suggestion , although it was in the English language which
she could not read; that she signed the cards so as to get rid of Ramos and the other
employees who were soliciting her signature and that she was told by the group
near her at that time that they were going to slap her and spit in her face unless
she signed the card. It is reasonably clear from the testimony of Chirchillo and
Suarez that they were in an automobile or near an automobile after work on the
afternoon of June 4 when they were approached by Ramos and several other
employees and that their signatures were solicited; that Chirchillo signed the card
in order to avoid trouble and keep on working, and that Suarez signed the card at
Chirchillo's suggestion so as to terminate the solicitation of her signature by Ramos
and the others.
The General Counsel submits as argument that the evidence concerning the cir-
cumstances surrounding the signing of these two cards cannot serve to invalidate
the signatures and relies on H. Rohtstein & Co., Inc., 120 NLRB 1556, where it was
held that the testimony of an employee that he signed because he thought he would
be "beaten up" if he did not do so, was a mere statement of a witness' subjective
state of mind which was insufficient to prove coercion, and could not operate to
overcome the effect of his overt act in signing a union authorization. That case
may be applicable here. Mrs. Ramos testified that no threats or coercion were used
at any time in the obtaining of any signatures. I prefer to think that Chirchillo
and Maria Suarez, as a matter of expediency and with the thought that they had
nothing to lose and perhaps something to gain, signed the cards with the intent to
each of the authorization cards held by them at that time was valid and proved a
majority within the unit Sandler, as pointed out above, did not raise a question with
respect to the validity of the cards. Indeed, he impliedly, agreed that the majority of
the employees wanted the Union, but his main concern was whether or not after the
walkout on the morning of June 4 the persons who walked out were still his employees.
SHERRY MANUFACTURING COMPANY, INC. 755
authorize the Union to represent them . I so find . In any event , should I be wrong,
my findings below would not affect the majority held by the Union as of June 4
or June 12.
Arsenio Vazquez, Juana Palacio, Pilar Gonzalez, and Petra Aguila: The Re-
spondent called these four witnesses in an effort to show that they were coerced by
Mrs. Ramos into signing union authorization cards. Their signatures were obtained
by Ramos sometime atter June 4 and before June 12, and according to the testimony
of these witnesses, all were told by Ramos, in substance, that those who did not
sign would be out of a job if the Union "got in the plant," and for that reason each
one signed. Vazquez also signed a card for his wife at the time he signed his own.
Subsequently, he said, he attempted to withdraw his card but its return was refused
by Krost. Palacio said that Ramos told her to sign a card or she might lose her
job and that sne signed her card without reading it. Gonzalez testified that she
signed a card approximately a week after the walkout of June 4, after being told by
Mrs. Ramos that if she did not sign up for the Union, she would lose her job.
Aguila testified that she was told that she ought to sign the card or else she would
be out of woik; that she did not read the card when it was presented to her by Mrs.
Ramos and did not know anything about the Union.13
Belia De Pertuz: The validity of the authorization card signed by this employee
is challenged because, it is said, she worked for 2 hours on June 3, and upon discovery
by company officials that she was there, her employment was terminated. Mrs.
Fernandez testified that this employee had worked for the Company prior to June 4.
When asked whether this employee was asked to come to work at any time after
June 3, Mrs. Fernandez said: "Well, somehow or other she must have been asked
something though I didn't have anything to do with it." I find that this employee
reported to work on June 4, and after working for 2 hours, left her job and pro-
ceeded to the union hall, where she signed an authorization card. I find she was
not discharged; on the contrary, I find that she joined the ranks of the strikers on
June 4.
In the instant case, the Trial Examiner cannot find evidence of any coercion or
duress exercised upon any employee by Mrs. Ramos or any other employee or any
union representative. The nearest to any such possible coercion or duress as men-
tioned by the Respondent is in the cases of Chirchillo and Suarez. However, these
are not true examples of coercion and duress; the actions of Mrs. Ramos in con-
nection with the obtaining of these signatures of these two employees was at most
vigorous persuasion. As pointed out, it is fairly clear that Chirchillo and Suarez
were willing to accept whatever benefits might accrue to them through their signing
the cards as they did, although they felt at the time they also wanted to get rid of
Ramos and her companions.
Julia Gonzalez and Alicia Hernandez: Respondent says that these two employees
were fraudulently induced to sign authorization cards at union headquarters. Each
testified that they went to the union office on the morning of June 4, where each was
given a card which she signed, without reading it. Gonzalez said that she was told
at the union office that she would have no right to go back to work unless and until
she signed the authorization card and further, that she was told by union repre-
sentatives that in order for her to be considered an employee of the Respondent,
she would have to sign a union card; that she was restrained from leaving the meet-
ing by her fellow employees; that she tried to retrieve her card from the union repre-
13 The Respondent also says that the cards of Gerardo Vazquez, Manuel Monzon, Elsa
Leon, Edilberto E Valdespino, and Olga Sanchez may not be considered as a part of the
evidence of majority "since the General Counsel had the burden of proving that they
were signed before the second alleged bargaining demand on June 12, and further says
that not only the cards of Leon and Sanchez and any other card "procured by Lady
Ramos under duress must be excluded" under the principle enunciated in Puerto Rico
Food Products Corporation, 111 NLRB 293, where the Board found that it was erroneous
for a Trial Examiner to exclude only those cards signed by testifying employees under
duress and said : "The Trial Examiner erred in treating the evidence of coercion as a
factor that could be ignored by a simple mathematical exclusion." I note the argument
of counsel for the Respondent that four additional employees worked for the Company
from the dates of June 5 through June 12, and that of these four only one, Mirta
Padura, signed an authorization card. It is said that because Padura's card was already
counted in the original total, and since the other three did not sign cards, these
"economic replacements" reduced the petitioner's total as of June 12 to 21 cards. In
view of the findings herein, that the strike was an unfair labor practice strike and not
an economic strike, I do not regard replacements , nonadherents of the Union , as neces-
sary to be counted in determining the number within the bargaining unit as of June 12.
'756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative but that she was unable to do so, and that undue pressure was exerted upon
her by her fellow employees . The testimony of Hernandez was to the effect that
she did not read her card before signing it; she was told at the union office that no
employee had work at that time and that in order to go back to work she had to
belong to the Union ; she further testified that the reason she signed the card was
in order to go to work and get her job back , since she no longer had a job at Sherry
Manufacturing Company.
These two employees were among the group of striking employees who volun-
tarily walked off their jobs and voluntarily agreed to remain on strike until the
,demands of the strikers for the reinstatement of Ramos and for the recognition of
the Union were met. Each of these employees remained on strike throughout its
entire duration and received strike benefits. No substantial evidence appears to
show that either one of them renounced her signature or ever informed the Union
of a change of mind and a desire to leave the Union . Hernandez served on the
picket line.
The testimony is clear that Union Representatives Belluso and Krost spent approxi-
mately S hours in the union office on June 4, explaining to the employees the
purposes and functions of the Union, and the available methods which could be
followed by the Union to protect the rights of employees. Certainly, most of the
employees , including Hernandez and Gonzalez , fully understood the purpose for
which they were asked to sign union authorization cards. There can be no fair
inference drawn and certainly there is no positive evidence in the record to the
effect that Belluso or Krost told the employees at any time that they would have to
join the Union in order to get their jobs back . Rather, the explanation given to
the employees by the union representatives is as stated by the General Counsel: "If
,a majority of employees signed with the Union, the Union will be in a position to
afford you protection and attempt to negotiate with the Company for your
reinstatement."
Lady Maria Ramos: The Respondent contends that because Mrs. Ramos was dis-
charged for cause on June 3, before the girls walked out on strike, that she cannot
properly be considered as eligible to be within the bargaining unit and her authori-
zation card should not be considered in determining whether or not the Union held
a majority either on June 4 or on June 12. As will be found below, Mrs. Ramos
was discharged because she presented a grievance or grievances on behalf of her-
self and other employees and consequently her discharge was in violation of Section
8(a)(3) of the Act.
Statements attributed to Mrs. Ramos to the effect that those who did not sign
authorization cards would be out of a job if the Union got in the plant, on the
preponderance of credible testimony herein , have not been proven . On the con-
trary credible witnesses , including Mirta Padura and Teresa Torres, denied that
Mrs. Ramos had made any such statement when she asked them to sign , but ex-
plained that the purpose of the cards was to bring the Union into the plant and
afford protection to the employees against company antiunion or employee union
activity. Mrs. Ramos, a credible witness, denied making the threats attributed to
her; she testified that when soliciting signatures she would explain to the employees
that the Union needed signatures from the employees in order to enable it to repre-
sent them and attempt to secure their reinstatement or attempt to attain better
working conditions.
Mirta Padura: She was first employed by the Company in 1958, was recalled to
work on June 8, and thereafter joined the strikers after having signed an authori-
zation card. She worked for about 10 days when she said "a girl from the Union
went to my house and she said that if I wanted to continue with the Union I couldn't
work any more and because I wanted to take part in the Union I did not go to work."
She was one of those strikers who returned to the plant on July 1. During the 10-
day period she was at work, she said that she was questioned by a supervisor, identi-
fied either as Jorge (Vasquez?) or Enrique (Henry Bettencourt?) as to whether
or not she had signed a union card and the same question was asked of several other
employees at that time. On another occasion Betty Aliano questioned her as to
whether or not she had signed a card and Aliano told her at that time that several
employees had canceled their signatures . She overheard conversations between
Aliano and other employees concerning authorization cards and testified con-
cerning remarks made to employees by Joseph Pardo, attorney for the Company,
,during the course of which he informed the employees-
.. . that the matter about the fans and the water and the other things that
were lacking were the reason for which we [meaning the employees ] wanted
to introduce the Union , that he, Mr. Sandler , was going to put them in little
SHERRY MANUFACTURING COMPANY, INC. 757
by little, that he had a lot of problems as a result of the fire which had taken
place and that he hadn't been able to take care of it, but that he was going to
put them in little by little.
She said that Mr. Pardo said further-
... that if we cooperated with the Company and took note of all this and
were understanding that in addition to putting in all of these things he would
raise the wages soon and then we were going to have a lot more advantages.
She said that Mr . Sandler and Mrs. Fernandez were present when Mr . Pardo made
these remarks. According to the testimony of President Sandler, after June 4 a
number of employees discussed the matter of their having signed cards, including
Mercedes Carnewall and Petra Aguila. Aguila testified that Sandler asked her if
she had signed and she told him "yes" at a time he had called her into his office. Mrs.
Fernandez was present at the time.14
The Case of Mercedes D. Carnewall
In substance, Mrs. Carnewall testified that she was interfered with by Eloisa
Gimeno, Ada Quadro, Margarita Lichtl and Lady Maria Ramos on the afternoon of
June 4, after she had left the plant. She said she was pushed and shoved against
an automobile, given an authorization card and a pencil, and was forced to sign the
card. She said that she was physically bruised and made extremely nervous-that at
that time she was in the early stages of pregnancy. The incident became the subject
of an assault proceeding brought in a local court, the proceeding being dismissed.
Mrs. Ramos denied any physical assault being made upon Mrs. Carnewall. It is
argued that the cards of Eloisa Gimeno, Ada Quadro, and Margarita Lichtl should
not be counted for purposes of determining the Union's majority standing because
the relationship of employer-employee "had been broken at the moment they attacked
Mercedes D. Carnewall," on the basis of the rule established by Standard Lime &
Stone Co. v. N.L.R.B., 97 F. 2d 531 (C.A. 4). That rule is inapposite to this case.
There, the strikers were convicted of a conspiracy to blow up the employer's plant.
Here, a local judge had dismissed the assault proceeding brought in the local
court. Further, from my observation of Mrs. Ramos and of Mrs. Carnewall, as
witnesses, the testimony of the latter was not nearly so convincing in this respect
as that of Mrs. Ramos. I credit Mrs. Ramos, and find that while Mrs. Ramos and
her fellow strikers certainly exerted strong effort to obtain an authorization card
from Carnewall, they did not engage in that type of physical assault which would
negate the effect of the signing of the card by Carnewall, who obviously knew what
she was signing.
CONCLUDING FINDINGS
The Discharge of Lady Maria Ramos
The strike which began on June 4 was precipitated by the discharge of Mrs Ramos
on June 3. The circumstances show that the strike was a strike as such and not a
voluntary termination of employment by the individual employees who participated
in the walkout. The strike was an unfair labor practice strike and not an economic
strike by reason of the fact that the only ground for the discharge of Mrs. Ramos
was occasioned by her presenting a grievance on her own behalf and on behalf of
other employees, particularly in the sewing department, concerning lack of ventila-
tion and, incident thereto, the failure of management to provide adequate drinking
14 According to the testimony of Mirta Padura, Mr. Pardo, when he addressed the
employees, in addition to referring to the intentions of the Company with respect to
installing drinking fountains and fans and so on, did remember his explaining to the
employees that "the people In the United States had a freedom to make their own
choice regarding these matters " ; that he read from the Florida right-to -work statute,
that he told them that those who wanted to join the Union had as much a perfect right
as those who did not want to join the Union, and she vaguely remembered some remarks
he made in connection with raises that had already been promised and that mirbt he
forthcoming The questioning of Mirta Padura, a fact which stands uncontra^licted
upon the record, would In itself, without regard to the granting of wage increases and
the improvement of working conditions without consultation with the Union during the
period of the strike, in itself constitute a violation of Section 8(a) (1) of the Act. The
Interrogation of an individual apparently may be separated from the whole context of
employer activity and still constitute a violation of Section 8(a) (1). Allied Chain Link
Pence Company , 126 NLRB 608.
577684-61-vol. 128--49
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
water facilities . Before Mrs. Ramos complained to Mr . Sandler, after first complain-
ing to the floorlady concerning the lack of air in the plant, the matter had been dis-
cussed between or among the employees in the sewing department and the employer
was fully cognizant of the fact that the employees were dissatisfied with working
conditions in the new plant. At the time of the brief conversation between Mrs.
Ramos and Mr. Sandler on the afternoon of June 3, Sandler admittedly knew of the
dissatisfaction among his employees with these working conditions not alone because
of having been presented with a written employees' petition which requested relief.
Further than that, implicit throughout the whole record herein, is the understanding
that Mrs. Ramos was speaking not only for herself , but for other employees when
she protested these conditions to Sandler.
Because the ground for the discharge of Ramos was insolence toward the presi-
dent of the Company, it becomes necessary to determine whether or not she actually
was insolent in the sense that she transcended the bounds of propriety insofar as her
status as an employee was concerned. Considering the testimony of Mrs. Ramos
herself, Mrs. Ortuno and other employees who testified on behalf of the General
Counsel and the testimony of Mr. Sandler and other witnesses called by the Respond-
ent, it is apparent that Mrs. Ramos was emphatic in her statements to Mr. Sandler;
that she gesticulated and perhaps became angry during the course of her discussion.
However, the fact remains that she remained seated at her sewing machine and
continued working during her discussion with Sandler, that she spoke in a tone of
voice which one might expect from a person of Latin extraction, that she did not use
unseemly or profane or obscene language, and that she continued at work without
further comment after Sandler had left her sewing machine.
The employees in the factory had, for a number of days, undergone discomfort
because of the lack of ventilation and the lack of adequate drinking water facilities
in this comparatively small plant. Approximately 60 persons were engaged in fac-
tory work in an area of approximately 120 by 140 feet at a time when the weather
was hot . Employees began work at 7 a.m . in the morning and continued through,
with a lunch period, until 3:30 in the afternoon. Admittedly, plumbing and elec-
trical installations and other work was in progress on this particular day.
Insolence connotes an attitude that is contemptuous or overbearing or insulting.
The manner of speaking and the demeanor of Mrs. Ramos while she was talking to
Mr. Sandler fall far short of being susceptible of characterization in these terms. I
find that her complaint was voiced in an emphatic but in a natural way.15
w A number of inconsistencies in the testimony of Mrs. Ramos , more apparent than
real , had been pointed to as evidence of the fact that she should not be considered a
credible witness It is noted that she testified that the drinking water at the plant was
dirty and that this testimony was contradicted by the employee responsible for the prepa-
ration of the water ; that she testified that at times the sewing department was without
water for 2 hours a day but that the employee in the painting department who also
drank from the galvanized can or receptacle used by the employees refuted this state-
ment ; that she said that the employees in the painting department had complained about
the condition or lack of the water , but that this statement was denied by three employees
who worked in the painting department ; that she testified that the rain on June 3 was
a drizzle and then said later that the employees would not know if it were raining bard
or lightly because there were not any windows in the plant ; that she changed her testi-
mony and stated that there were windows in the plant but they were very high up and
she couldn't see if it was raining or not , and that other witnesses testified it was a
hard rain on that afternoon ; that Mrs. Hernandez had told her on the day of her
discharge that her discharge would not be reported to the Unemployment Compensation
Commission , thus implying that no unemployment compensation benefits would be
granted to her; that she said Mrs. Fernandez on that afternoon told her that Sandler
was busy and could not see anyone but that in fact Mrs. Fernandez had told her that
Sandler had gone out and she did not know when he would be back ; that the statement
of Mrs. Ramos that Mrs Fernandez told her to return the next day with all the rest of the
employees and talk with Mr. Sandler was denied by Mrs. Fernandez ; that she had
testified that 28 people went to the union office on the morning of June 4 but that
another witness said that only 20 people went to the union office; that she admitted
that she saw Tranquilina Perez on the morning of June 3 but did not talk to her whereas
the testimony of Jorge Vasquez was to the effect that she did talk to Tranquilina Perez
on that day (the Trial Examiner has heretofore discredited completely the testimony of
Vasquez in this respect) ; that she testified that the girls had appointed her their spokes-
man but this was denied by four employees in the sewing department ; that she testified
that she had not counted the employees on the morning they left the plant but that her
testimony in the injunction proceeding was to the contrary; that she denied the testimony
SHERRY MANUFACTURING COMPANY, INC . 759
I find that Mrs. Ramos was discharged because she was presenting a grievance or
grievances for herself and on behalf of other employees , that her conduct was not
such as to justify a discharge on the grounds of insolence , and that her discharge was
in contravention of Section 8(a) (3) of the Act . See Salt River Valley Water Users
Association , an Arizona Corporation , 99 NLRB 849, 206 F . 2d 325 (C.A. 9); The
Office Towel Supply Company, Incorporated, 97 NLRB 449 , enforcement denied,
201 F. 2d 838 (C.A. 2); American Shuffleboard Co. v. N.L.R.B., 190 F. 2d 898 (C.A.
3), enfg. 92 NLRB 1272 , 1274 , 1275.16
The Appropriate Bargaining Unit
The Trial Examiner has found that an appropriate bargaining unit here could be
as described in the complaint, viz:
All production and maintenance employees, exclusive of office clerical, guards,
and supervisors as defined in the Act.
In the absence of disagreement between the parties, the Trial Examiner finds that
unit to be the appropriate bargaining unit.
The Union's Majority
I find that at the time union representatives requested recognition of the Union
on June 4, they held 32 valid authorization cards; and that at the meeting between
them and the president of the Company on June 12, they held at least 46 valid
authorization cards. I find that the strike of June 4 was an unfair labor practice
strike, precipitated by the illegal discharge of Lady Maria Ramos, and was not an
economic strike.
The Refusal to Bargain
Mr. Sandler most obviously disregarded the right of his employees to protest
against working conditions as they did on the day Mrs. Ramos was discharged. As
to the events of the following day, nothing else can be found than that he refused
to accept the representations made to him by Mr. Belluso and Mr. Krost that the
Union in their persons was authorized to speak on behalf of a majority of the pro-
duction and maintenance workers, at that time on strike. Afer June 4, and to June 12,
the Union was justified, on the basis of a card-showing only, to insist upon recogni-
tion. See Twenty-third Annual Report of the National Labor Relations Board,
pp. 74-75.
Summary
The unfair labor practice aspect of the case is emphasized by the unconditional
surrender of the Union on July 1, and the refusal of Sandler to take the strikers
back unless they signed applications as new employees. I find that the Respondent
Company has engaged in unfair labor practices in violation of Section 8(a) (1) of
the Act by the discharge of Lady Maria Ramos, the granting of unilateral benefits
including the installation of fans and drinking fountains and the granting of increases
in wages after the beginning of the strike on June 4, and the interrogation of Mirta
of some seven employees in regard to the circumstances under which their authorization
cards were procured, in contradiction to the statements of these employees ; that three
witnesses testified that she told them on the morning of July 1 that all the employees
"must go back to work or none of them will go back to work," which was denied by
Mrs. Ramos ; that she had painted a picture of warm friendship between Eloisa Gimeno
and Mrs. Carnewall, at variance with the subsequent action of Carnewall in pressing
charges against Gimeno and other employees, and other minor variances in testimony.
This Trial Examiner has had the benefit of observing all of the witnesses at the hearing.
Were the variances in the testimony of Ramos as emphasized by Respondent to be
considered, it is doubtful that the testimony of any single witness in this case could be
considered. As will be noted from the record, most of these employees were of Latin-
American extraction and many of them necessarily testified through an interpreter.
1e Empire Manufacturing Corporation, 120 NLRB 1300; General Electric Company, 120
NLRB 1035; Polish National Alliance, etc., 121 NLRB 89; and N.L.R B, v. Birmingham
Publishing Company, 262 F. 2d 2 (C.A. 5) have been cited by Respondent in support of
the principle that discharge for insubordination is nondiscriminatory. The Trial Ex-
aminer agrees with the principle expressed in those particular cases but finds the prin-
ciple on the facts in this case inapposite. The Trial Examiner, of course, is bound by
the decision of the Board in Office Towel Supply Company, Inc, and not by the decision of
the circuit court of appeals.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Padura. I find a violation of Section 8(a)(3) of the Act in the unlawful discharge
of Lady Maria Ramos, which also constitutes a violation of Section 8(a)(1). I
find a violation of Section 8(a)(3) of the Act in the refusal of the Respondent to
unconditionally return the strikers to their jobs upon their request on July 1. I find
further a violation of Section 8(a)(5) of the Act and a consequent violation of
Section 8(a) (1) of the Act in the refusal of the Company to bargain with the Union
at a time when the Union was a representative of employees in an appropriate
bargaining unit.17
17 The following cases, said to be applicable here, have been called to my attention by
counsel :
N.L R.B. v. James Thompson & Co., Inc., 208 F. 2d 743 (C.A. 2), holds that statements by
union solicitors to employees, that unless the union becomes the employees' bargaining
unit, the employee will lose his job, as a method of securing union application cards, is
unlawful ; that once it is shown that a union or an employer used improper persuasion to
influence votes of employees in representation election, votes for the union or the em-
ployer are to be disregarded, and that in view of proof that unlawful statements by the
union solicitor to the effect that, if employees fall to join the union, all employees would
lose their jobs, had been spread so widely among employees as to raise the question
whether it had affected the majority of votes cast in representation election, it was fair
to require anyone who wished to sustain election results in favor of the union to
prove that there was a majority of employees to whom the statement had not reached.
Obviously, this case is not applicable to support the contention of the Respondent here,
because the proof does not go so far as to show first, that the statement actually was
made, and second, that any, but a few employees believed that such a statement had been
made
N.L.R.R. v. H. Rohtstein & Co., Inc, 266 F. 2d 407 (C.A. 1) : This case stands for the
following, among other propositions : (1) there can be no refusal to bargain in violations
of the Act on the part of an employer, if the purported representative of his employees
was not freely designated as such by a majority of the employees in the appropriate
bargaining unit; (2) any misrepresentation to an employee by a union representative
that a majority of employees had already designated the union as bargaining repre-
sentative when, in fact, that employee's authorization was necessary for the union to
have authorization from a majority of employees, if that employee would not otherwise
have designated the union as his bargaining representative, would invalidate his desig-
nation of the union as a representative; (3) that where striking employees were engaged
in conduct protected by the Act granting them the right to organize and to bargain
collectively, and they were not replaced by their employer, the employer's refusal to rein-
state them in their positions, immediately upon receipt of their request therefor, re-
sulted in violation of the Act regarding unfair labor practices and also resulted in
discouragement of union membership
N.L.R.B. v. Dadourian Export Corporation, 136 F. 2d 891 (C.A. 2), is based upon a
particular factual situation in which the court said that the finding of the Board that
statements of a union organizer to employees in securing their votes for the union as a
bargaining representative did not constitute fraud, so as to vitiate consent of employees
who cast them, was not binding upon the court of appeals and that the evidence failed
to sustain the finding of the Board that the employer refused to bargain collectively
with the union which represented a majority of the employees.
This is a purely factual situation and the principles enunciated are applicable to the
facts in that case only. Lerner Shops of Alabama, Inc., et at., 91 NLRB 151, 152.
Here the Board said :
Benefield, the principal solicitor on behalf of the Union at the Respondent's store,
had threatened these employees with economic reprisal if they failed to join.
According to Swain's uncontroverted testimony, she was warned by Benefield, be-
fore signing a card, that "if I didn't join I'd be one of the first to go out."
Similarly, Farrel testified, without contradiction, that, before she signed, Benefield
warned her that "it is sign, or else" which Farrel meant to mean "that I didn't
work if I did not sign "
Benefield's remarks were thus not confined to mere predictions of consequences
of a future authorized union-security agreement, but constitute clear threats of
present loss of employment if the employees refused to become members. Such
remarks by the Union's chief proponent are manifestly calculated to restrain and
coerce the employees concerned and, in our opinion, raise substantial doubt as to
whether the Union, which relies on its authorization cards rather than the results
SHERRY MANUFACTURING COMPANY, INC . 761
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Company as set forth in section III, above,
occurring in connection with the operation of the Respondent Company described in
section 1, above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent Company has engaged in unfair labor practices
within the meaning of Section 8(a)(1), (3), and (5) of the Act, it will be recom-
mended that the Respondent cease and desist therefrom and take the following
affirmative action designed to effectuate the policies of the Act:
(1) Offer Lady Maria Ramos immediate and full reinstatement to her former
or substantially equivalent position, without prejudice to her seniority or other rights
and privileges.
(2) Make Lady Maria Ramos whole for any loss of pay she may have suffered
by reason of her unlawful discharge, by payment to her of a sum of money equal to
the amount she would normally have earned as wages, during the period from the
date of her discharge to the date of the issuance of this Intermediate Report, and
during the period from the date of this Intermediate Report to the date of the
Respondent Company's offer of reinstatement, less her net earnings during said
periods (Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v.
N.L.R.B., 311 U.S. 7; F. W. Woolworth Company, 90 NLRB 289).
(3) Offer to those employees who went on strike on June 4, 1959, immediate
and full reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges.
(4) Make each of said employees who went on strike on June 4 whole for any
loss of pay he or she may have suffered by reason of the Respondent's unlawful
unfair labor practices which precipitated the strike, by payment to each of them
of a sum of money equal to the amount he or she would normally have earned as
wages, during the period from June 4 to June 30, 1959, the date of the cessation of
the strike, and during the period from the date of this Recommended Order to the
date of the Respondent's offer of reinstatement, less his or her net earnings during
said period in accordance with Crossett Lumber Company, Republic Steel Corpora-
tion v. N.L.R.B., and F. W. Woolworth Company, supra.
(5) Make each of those employees who reported for reinstatement on July 1,
1959, whole for any loss of pay he or she may have suffered by reason of the
Respondent's refusal to reinstate each said employee by payment to him or her
of a sum of money equal to the amount he or she would normally have earned as
wages, during the period from the date of his or her application for reinstatement
to the date of this Recommended Order, and during the period from the date of
this Recommended Order to the date of the Respondent's offer of reinstatement,
less his or her net earnings during said period, in accordance with Crossett Lumber
Company, Republic Steel Corporation v. N.L.R.B., and F. W. Woolworth Com-
pany, supra. It shall also be recommended that the Respondent Company make
available to the Board or its qualified agent or agents, upon request, payroll and
other records to facilitate the checking of the amount of backpay, which shall be
computed in accordance with the Board's customary formula.
Upon the basis of the foregoing findings of fact and upon the 'entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. By discriminating in regard to the tenure of employment of Lady Maria
Ramos, the Respondent Company interfered with, restrained, and coerced its em-
ployees in the exercise of rights guaranteed in Section 7 of the Act, and has thereby
of ballots cast In a secret election, represented the free choice of Respondent's
employees
This case would be in point here, perhaps, if I were able to find threats similar to the
threats made by Benefield in the Lerner case. This I cannot find The nearest to It is
what the Trial Examiner considers to be a misstatement or a misquotation of Ramos :
that she or perhaps Krost or Belluso had remarked that unless employees joined the
Union they would not have a job. In whole context of the instant case, I cannot find
clear threats against any employee by any union representative, including Ramos.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in and is engaging in unfair labor practices within the meaning of Section
d (a) (1) of the Act.
2. By engaging in such discrimination , thereby discouraging the formation of
or membership in any labor organization , the Respondent Company has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
3. By discriminating in regard to the tenure of employment of those employees,
the strikers, and by refusing to reinstate such employees upon application, the
Respondent Company interfered with, restrained , and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act, and has thereby engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(1)
and Section 8(a) (3) of the Act.
4. International Ladies' Garment Workers' Union, AFL-CIO, Local Chapter
No. 415, is a labor organization within the meaning of Section 2(5) of the Act
and during the times material hereto was the representative of the employees of
the Respondent Company in an appropriate bargaining unit.
5. By refusing to bargain collectively with International Ladies' Garment Work-
ers' Union, AFL-CIO, Local Chapter No. 415, as the representative of its employees
in an appropriate bargaining unit , the Respondent Company had engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a) (5) of
the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Continental Can Company, Inc. and United Steelworkers of
America, AFL-CIO, Petitioner. Case No. 13-RC-7177. August
22, 1960
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Robert G. Mayberry, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Jenkins and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act, for the following
reasons:
The Petitioner seeks a unit of all technical and professional em-
ployees in the equipment development department of the Employer's
metal research and development center. It stated, however, it would
accept any unit of professional or technical employees the Board may
find appropriate, suggesting as alternative appropriate units a single
128 NLRB No. 102.