Tov Knitting Mills, Inc.

National Labor Relations Board - Board Decisions

Sep 20, 1976

226 N.L.R.B. 11 (N.L.R.B. 1976)

TOV KNITTING MILLS 11
Tov Knitting Mills, Inc. and Local 155 , Knitgood
Workers, International Ladies Garment Workers
Union AFL-CIO. Case 29-CA-4635
September 20, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On May 6, 1976, Administrative Law Judge Rob-
ert W. Leiner issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member -panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Toy Knitting Mills, Inc.,
Brooklyn, New York, its officers, agents, successors,
and assigns, shall take the action set forth in said
recommended Order.
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board' s established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wald Products, Inc, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (CA 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act. On January 29, 1976, Respondent, by coun-
sel, duly filed an answer denying the allegations of unlaw-
ful conduct alleged in the complaint.
A hearing on the issues presented by the pleadings was
held before me in Brooklyn, New York, on February 5, 6,
and 9, 1976. A timely brief received from Respondent and
General Counsel's oral argument on the record after the
close of the receipt of evidence have been carefully consid-
ered.
Upon the entire record in this case and from my obser-
vation of the-demeanor of the witnesses, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, at all times material herein, has been a
corporation organized under and existing by virtue of the
laws of the State of New York where at its principal office,
factory, and place of business, 47 Hall Street, Brooklyn,
New York, it has been, and is, engaged in the manufacture,
sale, and distribution of unfinished knit goods and related
products. In the year preceding the hearing, which period
is representative of its annual operations generally, Re-
spondent manufactured and distributed at its Hall Street
place of business products valued in excess of $50,000, of
which products valued in excess of $50,000 were furnished
to, among others, Natex Mills, Inc., and other enterprises,
each of which enterprises annually ships goods valued in
excess of $50,000 directly out-of New York State. Respon-
dent admits, -and I find, that it is now, and has been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and I find
that Local 155, Knitgood Workers, International Ladies
Garment Workers Union, AFL-CIO, is, and has been at
all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.'
III. THE ALLEGED UNFAIR LABOR PRACTICES
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge: Upon a
charge filed on October 9, 1975, by Local 155, Knitgood
Workers, International Ladies Garment Workers Union,
AFL-CIO, herein called the Union, the General Counsel
of the National Labor Relations Board, by the Regional
Director for Region. 29, Brooklyn, New York, issued a
complaint and notice of hearing on November 28, 1975,
against Tov Knitting Mills, Inc., hereinafter called Respon-
dent, alleging that Respondent engaged in certain unfair
A. Background
The premises at 47 Hall Street, Brooklyn, New York,
consist of an eight-story loft building which has one eleva-
tor. Respondent occupies-the sixth and the eighth floors of
the building. The sixth floor is devoted to the factory where
the 30 knitting machines are operated by knitters. The
eighth floor is used to store incoming yarn. Respondent's
season in 1975 ran from July 15 to the end of October.
1 The allegations regarding Respondent' s engaging in interstate com-
merce , its status as an "employer ," and the Union 's status as a "labor orga-
nization ," all within the meaning of the Act , were the subject of stipulations
arrived at the opening of the hearing These stipulations withdrew denials in
Respondent 's answer
226 NLRB No. 5
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During this time, Respondent employed 12 knitters; 6 knit-
ters occupying a day shift and 6 knitters on the night shift.
Each shift ran 12 hours, the night shift taking over the
work of the day-shift employees at 6 p.m. and relinquishing
the knitting machines to the day-shift employees at 6 a.m.
Respondent's operation continued 7 days a week, around
the clock.
The president of Respondent corporation is Shlomo
(Samuel) Mark. His wife is inactive in the daily operation
of the business but has the power to sign checks and is an
officer and director of the corporation. She and her hus-
band each own 37-1/2 percent of Respondent's shares.
Shlomo Mark's son, Harry Mark, a full-time mechanic em-
ployed by Respondent to repair and maintain the 30 knit-
ting machines, is a night student at the Fashion Institute of
Technology in New York. He, unlike all other employees,
is paid a weekly wage ($250 per week) and does not punch
the timeclock. The balance of Respondent corporation's
shares are owned by Harry Mark (15 percent) and by Har-
ry Mark's sister (10 percent). The sister is not active in the
operation of the business. Respondent also employs a full-
time bookkeeper. The bookkeeper, Shlomo Mark, and
Harry Mark report for work at or about 8:30 each morn-
ing. The knitters are paid by the hour and punch the time-
clock.
The evidence is undisputed that the operation of the
knitting machine requires the careful attention of the knit-
ter. In case of the breaking of a needle on the machine, the
knitted goods become imperfect and constitute a loss to
Respondent. In case a knitter arrives late for his shift, the
machine is either tended by another knitter arriving on
time on the same shift or the machine is shut down. Any
machine which is shut down, results in no production and
therefore represents a loss to Respondent. It appears that
with six knitters per shift, each knitter is ordinarily charged
with the operation of five knitting machines.
B. The Hiring of Santos Vasquez
On Tuesday, September 23, 1975,2 Santos Vasquez was
hired by Shlomo Mark as a knitter at an agreed wage of
$2.50 per hour He was interviewed sometime after 10 a.m.,
commenced work sometime at or about 11:30 a.m., accord-
ing to a written notation on his timecard, and ceased work
at 6 p.m. Vasquez testified Sam Mark told him that the
work hours were 6 a.m. to 6 p.m., "but if I wanted to, I
could come in at 7:00 or either start at 8:00." Vasquez also
testified that Sam Mark told him that Respondent's work-
week was 7 days per week, 12 hours per day. Sam Mark
absolutely denied telling Vasquez that he could report to
work at any time other than 6 a.m. In fact, he testified that
it was customary for the employees to arrive on each shift
10 to 15 minutes before the start of the shift and that this
10- to 15-minute period was used by the employees to
change into work clothers and to take over the running of
the knitting machines from employees who were departing
on the prior shift.
Vasquez testified and his timecard confirmed that on the
2 All dates herein are in 1975 unless other references are made
next day, Wednesday, September 24, Vasquez punched in
at 6 a.m. and punched out at 6 p.m. For Wednesday, Sep-
tember 24, the actual timecard shows punching in at 6 a.m.
and punching out at 6.04 p.m. Written notation on the
card appears to show that Vasquez was paid for 12 hours
of work.
On the next day, Thursday, September 25, Vasquez testi-
fied that he started at 7 a.m. and worked until 6 p m.; the
timecard (Resp. Exh. I) shows that he punched in at 6:24
and punched out at 6:03. Penciled notations show that he
was paid for 11-1/2 hours of work. Vasquez also testified
that another knitter, one Gomez, sometimes arrived for
work after Vasquez did and indeed, started at or about 8
a.m. Vasquez testified without contradiction that in spite of
his punching in after 6 a.m on Thursday, September 25,
neither Sam Mark nor Harry Mark nor anyone else men-
tioned his lateness to him.
Vasquez testified that at or about 10 a.m. on Thursday,
September 25, he had a conversation with a knitter, Panta
(Manta) Mahon, and at noon on the same day he had a
conversation with another knitter, Gomez. In the conversa-
tion with Panta Mahon, Vasquez told Mahon that "some
kind of representation" was needed in the factory. The
conversation with Mahon also included Vasquez' inquiring
whether they should bring a union into the shop. Vasquez
told Mahon that if the employees wanted authorization
cards, he would bring in the authorization cards. Mahon,
who did not testify at the hearing, told him that he was
willing to sign the card but was afraid of losing his job.
Mahon said this after Vasquez told him that there was no
representation in the factory, there were too many ma-
chines, too much work, not enough money, and too long a
shift and no lunchtime. Vasquez told him that as long as
everyone signed for the Union and the Union came in, the
employees would not have to be afraid of anything. Mahon
told Vasquez that he would speak to them about the matter
later.3
According to Vasquez, at noon, Gomez approached him
while they were working together at a knitting machine and
Vasquez was replacing needles in one of the cylinders in
the machine. Gomez started the conversation and told Vas-
quez that he had been a member of the Union in another
factory; and he would like to have a union in this factory.
Vasquez told him that he could arrange the matter and
would bring in the Union if the employees would sign au-
thorization cards. Gomez told him that he would speak to
Vasquez on the next day. After punching out at 6 p.m.,
Vasquez asked another employee, Sophia, if she would sign
a union authorization card. She told him that she would
have to speak to her husband, an employee on the night
shift in Respondent's factory.
On the next day, Friday, September 26, Vasquez did not
go to work at all. Instead, he went to a nearby hospital in
the morning to pick up some compensation forms. Vasquez
never notified the Company that he would be out Friday
and never telephoned the Company to notify them that he
was out because he needed to go to the hospital to pick up
the forms. He testified that he returned to his home from
J Vasquez testified that he had been a member of Local 155 for 4 years
but had never participated in the organization of an employer's employees
prior to this time
TOV KNITTING MILLS
the hospital about 11 a.m. and waited until about 3 p.m. to
receive union authorization cards from a Local 155 agent
who, according to prior agreement, was to deliver them to
Vasquez' home on that afternoon. Vasquez testified that he
did not know the telephone number or even the name of
his employer on Friday or at the time he was first hired.
In any event, Vasquez remained at home on that Friday
until about 5 p.m. when he went to the factory. Vasquez
went upstairs and spoke with Harry Mark. He told him
that he had not come to work because he had to go to the
hospital to pick up forms. Harry Mark told Vasquez that it
was "all right." 4 Vasquez testified that he then went down-
stairs and saw Sam Mark. He told Sam Mark that he had
not come into work because of going to the hospital and
Sam Mark said "it was all right." Sam Mark, it is agreed,
then asked Vasquez if he intended coming in Saturday and
Vasquez said he was. Sam Mark then asked if Vasquez
intended to come in Sunday and Vasquez said he did. Sam
Mark then told him "if you don't come in on Sunday, don't
bother coming in on Monday." 5
After Sam Mark left, Vasquez waited in the street with
Local 155's organizational cards in his possession for the
employees to emerge at the conclusion of the day shift.
Vasquez testified without contradiction that he distributed
approximately 9 or 1Q cards to employees on both shifts:
those emerging from the day shift and those entering on
the night shift. Vasquez said he gave a card to Panta Ma-
hon and to four other fellow employees traveling in the
same car . He told them to return the cards to him or to
mail them to Local 155. The employees told them that they
would fill out the cards and try to mail them. None of the
employees returned a filled out card to Vasquez at that
time. The actual distribution of cards was in the street, on
the sidewalk, about 70 feet from the single entrance into
the factory building. Vasquez then left the area before 7
p.m.
Although his timecard for Saturday, September 27,
shows that Vasquez punched in at 6:31 a.m. and punched
out at 6, he testified that he punched in about 7 a.m. and
that neither Sam Mark nor Harry Mark was there. Sam
Mark does not work on Saturday of any week or any Jew-
ish holidays because of his orthodoxy and sabbath obser-
vance. He also testified that he and his son, Harry Mark,
leave the premises well before sundown each Friday and
do not work thereafter, on Friday or Saturday. He testified
that Harry Mark works in the premises each Sunday. On
4 Harry Mark did not testify at the hearing Sam Mark testified that his
son, Harry Mark, was in Israel studying knitting machine design and opera-
tion The complaint herein, dated November 28, 1975, was not received by
Respondent , according to the return receipts in evidence attached thereto,
until December 4, 1975. In fact the complaint was not mailed until Decem-
ber 3, 1975. In any case, Sam Mark testified that Harry Mark left for Israel
on December 1, 1975. At no time did counsel for Respondent request a
continuance of the hearing so that Harry Mark might testify in the matter,
nor did he suggest any other device by which Harry Mark's testimony could
be included in this record.
5 Sam Mark on cross-examination testified that he was very surprised that
Vasquez didn't come to work on Friday and that when he saw him at or
about 5.30 on that Friday evening he asked him if he were coming to work
on Saturday and Sunday , "and I told him if he doesn 't come in [on] time,
then he doesn't have to come in here at all ." There is no suggestion in
another version of Sam Mark's testimony on this point or in Vasquez' testi-
mony that the words on time were used.
13
Saturday, Panta Mahon assigned Vasquez to the machines
he was to operate.
On Sunday, September 28, although the timecard shows
that Vasquez punched in at 6:34 a.m., he testified that he
punched in at about 7:00 a.m. The card and his testimony
show that he punched out at 6 p.m. Vasquez testified that
on that Sunday he spoke to five or six employees about the
authorization cards while they were at their machines.
On Sunday, Mahon again assigned Vasquez the ma-
chines to operate. Neither Harry Mark nor Sam Mark was
there that day. Vasquez testified that the only person on
Sunday who assigned work was Panta Mahon. He admit-
ted that neither Sam Mark nor Harry Mark ever told him
about the functions or authority of Panta Mahon. Vasquez
also testified that aside from assigning machines to work
on, Mahon would reassign him and tell him which ma-
chines to run, and that only Harry Mark and Mahon had
the practice of rotating employees around from machine to
machine.
On Sunday, Vasquez asked the employees if they were
going to mail in the cards or give them to him. When he
asked Mahon about signing or mailing the card, he told
him that he would see Vasquez downstairs that evening.
When he saw Mahon downstairs that evening, Mahon told
him that the employees were going to try to mail the cards
in.
The following day, Monday, September 29, is the day on
which the complaint alleges, and Vasquez testified, that he
was discharged by Respondent. Thus Vasquez, with great
vigor, assurance, and repetition testified that he was dis-
charged on Monday, September 29. With equal assurance,
confidence, and repetition, Respondent, by Sam Mark, tes-
tified that the discharge occurred on the following day,
Tuesday, September 30, rather than on Monday, Septem-
ber 29. I find that no substantative issue is resolved by a
resolution of the question of the date or day on which Re-
spondent actually discharged Vasquez. I will, however, re-
solve the question insofar as it might relate to the credibili-
ty of Vasquez and to the truthfulness of the defense as
interposed by and testified to by Sam Mark.
The Date of the Discharge
In the first place, the charge in this case, filed October
10, 1975, within 2 weeks of the alleged discharge, although
filed by an agent of the Union rather than by Vasquez
himself, alleges that the discharge took place "on or about
September 30, 1975." The timecards in evidence, particu-
larly the card covering the period of Saturday, September
27 through Tuesday, September 30, show a notation that
the card was punched in on Monday at 6:45 a.m. There is
a written notation rather than a punchout showing that the
quitting time was 6 p.m.' The same timecard (Resp. Exh. 2)
shows a timeclock "punch in" at 7 a.m. on Tuesday and a
machine punchout at 10:50 a.m. on September 30. It is
6 There was no explanation by any witness as to why there was a written
notation regarding the quitting time on Monday rather than a "punched"
time notation.
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
undisputed that Sam Mark fired Vasquez at or about 10
a.m.7
Vasquez gave vacillating testimony with regard to the
paychecks he received at the time of his being fired. The
paychecks in evidence (Resp. Exh. 3 and 4) contain dates
of September 26 and October 3. These dates indicate the
conclusion of payroll periods rather than the dates on
which Vasquez received the checks. However, Vasquez tes-
tified at one point that he deposited the checks and cashed
them on the day he was fired and received them. Thereaf-
ter he also testified that he might have deposited them and
cashed them on the day after he received them from Sam
Mark. The checks both bear the endorsement date of Sep-
tember 30, 1975. Sam Mark testified, and dollar computa-
tions on the face of the checks in conjunction with the
timecards indicate that Vasquez was paid through 10:50
a.m., Tuesday, September 30, 1975.
In spite of extensive examination and cross-examination,
no motive appeared on this record concerning why Vas-
quez was so positive and insistent that the discharge took
place on Monday rather than on Tuesday. In any event,
however, I find on the basis of the above evidence that
Vasquez was mistaken; that the records and Sam Mark's
testimony indicate that Vasquez was discharged on Tues-
day, September 30, rather than on Monday, September 29.
On my observation of Sam Mark and on the basis of ordi-
nary experience, Respondent would not have paid Vasquez
for working Tuesday if he did not work that day. As above
noted, it is not clear why Vasquez was so insistent that he
was discharged on Monday. Whether this was an honest
mistake by Vasquez or `he had some other purpose is un-
known. In any case, I find that he was discharged on Tues-
day, September 30, 1975.
As above noted, the timecard for Monday, September
29, 1975, shows that Vasquez punched in at 6:45 a.m. and
punched out at 6 p.m.
The timecard for the next day, Tuesday, September 30,
shows that Vasquez punched in at 7 a.m. and there was a
machine purichout at 10:50 a.m. Vasquez testified that he
did not go to work on the day he was fired until about 8
a.m. He testified that at or about 11 a.m., Sam Mark came
over to him and told him: "Get your clothes, you're getting
out of here," and that Sam Mark then took him into the
office and told him he would be paid in full. Vasquez told
Mark that he would have to get his clothes, but Mark
locked the door of the office and said: "No, no, no, you'll
have to get them when your pay is ready." Mark then ac-
companied Vasquez to where Vasquez kept his clothes,
then came back to the office and gave him the paychecks
and then escorted Vasquez to the elevator. When Mark
took Vasquez back to the office after Vasquez got his
clothes, he told Vasquez "you can't be coming in here all
hours of the day." Vasquez answered "from what you told
me, I thought you said to me I could come in either from 8
to 6 or from 7 to 6." Sam Mark then reminded Vasquez
that he had been absent on Friday. Vasquez told him that
' The evidence shows that Respondent employed a full-time bookkeeper
The bookkeeper was never called as a witness to verify either the time and
date of the discharge or whether any conversation took place in the presence
of the bookkeeper which might shed light on the reasons for the termina-
tion
he had to go to the hospital and told Mark that, in fact,
Vasquez had spoken to Mark about the matter and had
also spoken to Harry Mark and both of them had told him
that it was "all right." Sam Mark answered: "No, no, no.
That's not good. You took the day off. Get out, get out." It
was at this point that Sam Mark escorted him to the eleva-
tor.
In this terminal conversation, Vasquez also told Sam
Mark that there were other employees who started at 8
o'clock or 7 o'clock and Sam Mark told him that that was
none of his business. At this point, Vasquez went down the
elevator and left the building. He did not return that day.
On the next day, Wednesday, October 1, Vasquez returned
to the plant in the late morning in order to get a written
note from Respondent regarding his unemployment status.
He went upstairs and spoke to Sam Mark in the plant.
Present at the conversation were a truckdriver and a helper
who were otherwise not identified. It is agreed that Vas-
quez asked Sam Mark for the unemployment slip and that
Sam Mark told him not to bother about the slip, that Sam
Mark would telephone New York State Unemployment
and acknowledge that Respondent had laid off Vasquez.
At that time, Sam Mark then escorted Vasquez to the ele-
vator and got into the elevator along with Vasquez, the
elevator operator, the truckdriver, the helper, and two of
Respondent's employees. The elevator went' upstairs. Ac-
cording to Vasquez, but denied by Sam Mark, Sam Mark
told him in the presence of these four others-and the eleva-
tor operator 8 that: "You didn't succeed in bringing the
Union into my shop . . . these are the two fellows you
want to speak to (pointing to the two fellow employees.)"
The truckdriver and the helper were not employees of Re-
spondent. The elevator proceeded to the eighth floor where
Sam Mark got off. The elevator then went downstairs with
the remaining passengers. The two employees, the truck-
driver, and the helper were in the elevator for the purpose
of descending to the loading dock to pick up yarn which
was being delivered by the truckdriver and helper to Re-
spondent. Vasquez got off the elevator and sat down on a
bench on the loading platform with the elevator operator,
George, subsequently identified as George Henderson.
Vasquez testified, and Henderson, called as a witness by
Respondent, corroborated, that after a short time George
Henderson went up in the elevator and came down with
Harry Mark. Harry Mark went over and spoke to the two
Respondent employees unloading yarn from, the truck and
then came over to Vasquez who was sitting on the bench.
According to Vasquez, Harry Mark said to him: "The rea-
son you were fired was because you were trying to bring
the Union in the shop, and if I catch you around here
again, I'm going to bash your head in." Vasquez said that
Harry Mark then cursed him out and walked away. Vas-
quez stated that present at the conversation were the two
fellow employees, the truckdriver and helper, and George
Henderson. Vasquez then left and had no further contact
with Respondent. The evidence shows that he subsequently
returned, a day or two later, and spoke with George Hen-
derson. According to Henderson's testimony, he told Hen-
derson that he had been fired for union activities.
8 The elevator operator denied having been present at any such conversa-
tion and did not remember being in the elevator with these persons
TOV KNITTING MILLS
Testimony of George Henderson
George Henderson , for 10 years an elevator operator at
47 Hall Street , was described by Vasquez as an "acquain-
tance." Henderson and Vasquez had known each other
previously because Vasquez had worked in -the neighbor-
hood and Henderson had seen him around . In fact, it was
Henderson who told Vasquez of the possibility of Vasquez
getting employment from Respondent prior to Vasquez'
being hired on September 23. Vasquez denied that Hender-
son was his "friend," and subsequent to Henderson 's testi-
mony, Vasquez said most positively that he rejected
Henderson 's testimony as untruthful and certainly Hender-
son was not his "friend."
Henderson , called as a witness by Respondent , testified
that he knew that Respondent was one of the tenants in the
building ; knew Sam Mark and Harry Mark , his son; de-
nied recalling having been present in the elevator when
Sam Mark allegedly spoke with Vasquez , the two employ-
ees, the truckdriver, and helper ; and recalled that several
days after Harry Mark spoke to Vasquez, Vasquez re-
turned and told Henderson that he had been fired because
he was trying to get the Union in the place.
What Henderson did recall of the conversation between
Harry Mark and Vasquez was that he (Henderson) was on
the bench out on the loading platform about noon on an
unknown date and Harry Mark came over to Vasquez and
told him that he was "making trouble" and so "he told him
to leave." 9 Henderson testified that Harry Mark then told
Vasquez to "get up and take a walk." Someone rang for the
elevator and Henderson had to go up in the elevator. He
said that he thought they continued to talk when Hender-
son was ' leaving for the elevator.
Henderson also testified that he knew that Sam Mark
was the boss on the sixth and eighth floors; that Harry
Mark was his son; and that Harry Mark, a mechanic,
"runs the machines with his father ." Henderson described
the fact that on "hundreds of occasions" he would stop his
elevator on the sixth floor in order to get warm. On all
those occasions he saw Harry Mark working on the ma-
chines, like a "foreman ." He testified that he saw Harry
Mark on those occasions : "He tells the guys what to do."
He testified that the employees did not refuse to do what
Harry Mark instructed them to do and in fact they did
what he told them to do.
The Testimony of Shlomo (Sam) Mark
The only other witness called by Respondent was its
president, Sam Mark . 'Mark testified that he hired Vasquez
as a knitter and confirmed that he told Vasquez to be sure
to come to work on the Saturday and Sunday following
Vasquez' failure to work on Friday , September 26. He also
testified that Respondent 's payday is Friday of each week;
the payroll period runs Friday to Thursday; and payment
is made each Friday, for the payroll period in the preced-
ing week . Sam Mark thus stated that the Company holds
back a week's pay at each payday and that the checks are
9 On cross-examination , Henderson described Harry Mark 's statement as
having been : "You're coming around making trouble."
15
distributed on Thursday night to the night shift and Friday
morning to the day shift. He testified that he and his book-
keeper go through the timecards for payroll purposes be-
ginning Monday or Tuesday of each week so that the pay-
roll checks can be made out by Thursday of the week in
which payment is made, covering the prior payroll week.
Sam Mark testified that he fired Vasquez because of Vas-
quezcontinuous lateness which interfered with produc-
tion.:,
Sam Mark testified that on Monday, September 29,
when he and his bookkeeper commenced reviewing the
payroll cards to determine the number of hours each em-
ployee worked so as to compute the payroll, the bookkeep-
er showed him that Vasquez had come in late. Thereafter
in his testimony, Sam Mark testified that it was not on
Monday that the bookkeeper showed him Vasquez' late-
ness but it was actually on the next day, Tuesday, Septem-
ber 30, that this occurred. Although Sam Mark denied
locking the door, the substance of his testimony regarding
the terminal conversation with Vasquez is about the same.
He testified that he could not tolerate Vasquez' continued
lateness which was causing him production losses and fired
him. In addition , however, Sam Mark testified that as he
was escorting Vasquez to the elevator on Tuesday, Septem-
ber 30, when he discharged him, Vasquez "threatened" him
by saying "watch out when you're alone , I have friends;
you will hear from me." Mark then said he told his son
Harry of this statement and Harry Mark was very angry.
Vasquez denied the threat.
In subsequent examination Sam Mark testified that what
happened was that his bookkeeper, on Monday, September
29, called to his attention Vasquez' lateness commencing
with the first timecard (Resp . -Exh. 1) which covered only 3
workdays : ll the first workday of September 23, which was
the Tuesday hiring date; the 6 a.m. to 6:04 p.m. workday
of Wednesday, September 24; and the 6:24 a.m. to 6:03
p.m. lateness of Thursday , September 25. Sam Mark testi-
fied that he then was put on notice of Vasquez' lateness,
and was "watching him." He testified that he did not call
for or inspect the timecard which Vasquez had just
punched in that Monday morning because he was "too
busy." He testified, however, that on inspecting the first
card, he saw that Vasquez was late twice in the week end-
ing Friday, September 26. His testimony was incorrect
since the card shows only one such lateness. He then testi-
fied that he looked at the second card on Tuesday morning
and saw that Vasquez had been late Saturday, Sunday,
Monday, and that morning , Tuesday. He testified that
when he saw the card on Tuesday he became very angry
because of the loss of production, on three machines.
Sam Mark said there was a strict company policy that if
an employee is late three times he would be fired. He testi-
fied that although he,saw on the first week's card on Mon-
day, that Vasquez had been late twice (no such statement
10 Although Sam Mark testified that Respondent keeps production rec-
ords , these records were not produced to show Vasquez' actual interference
with production . This became arguably significant because Vasquez testi-
fied that when a knitter is not present , other knitters on the shift tend the
knitting machines in the absence of the knitter and thus there is "downtime"
for the machine . Ultimately, Sam Mark testified that he did not know
whether Vasquez ' continued lateness caused actual loss of production.
11 As above noted , new timecards are issued each Friday.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appears on the cards that Vasquez was late twice), he failed
to call this to Vasquez' attention, that one more lateness
would require that Vasquez be fired. The reason he gave
for not warning Vasquez (after Vasquez had been late
twice) that a-third lateness would result in discharge was
that he had other business obligations and that he could
not "look for every small thing." Sam Mark also stated
that, having been advised by the bookkeeper that Vasquez
had been late in the previous week, he did not ask for the
new, Friday, timecard which would show Vasquez' atten-
dance over the weekend. Thus Sam Mark testified that
having seen the lateness on the old timecard on Monday,
he wanted to see what happened in the second week's card
and waited until Tuesday to check the card.
On cross-examination, Sam Mark testified that although
he was aware on Monday, that Vasquez was late, he did
not see fit to look at the current week's card on Monday,
nor did he warn Vasquez of the three-time-late policy re-
garding automatic discharge.12
Vasquez had testified that he had seen a knitter, Gomez,
punch in after he had and Vasquez believed that this was in
conformity with the policy which Sam Mark had told Vas-
quez; i.e., that although there was a 12-hour shift, Vasquez
could come in at 7 or & a.m. Sam Mark testified that Go-
mez was a helper rather than a knitter. The evidence
showed, however, that Gomez performed substantially the
same activities as Vasquez. Gomez tended the knitting ma-
chines and, like Vasquez, went up to get yarn for the ma-
chines. Both of them replaced broken needles in the ma-
chines. Although Sam Mark testified that Gomez also
swept the floor and took out garbage,, the evidence on this
record indicates that Gomez was paid $3 per hour (thus
more than Vasquez' wage) and came in about 7:30 a.m.13
No timecards or other records were submitted regarding
Gomez. Sam Mark testified that he permitted Gomez to
come in at 7:30 because it saved him money.
Contentions of the Parties and Analysis
General Counsel contends, and Respondent denies, that
Panta Mahon is an agent of Respondent and that his
knowledge of Vasquez' union activities in distibuting the
cards should be ascribed by such agency to Respondent.
12 With regard to the question of what Sam Mark's actual warning to
Vasquez was on Fnday after Vasquez failed to come into work when Sam
Mark saw him in the evening on Friday, the transcript shows the following
Q. Do you remember when it was, what time)
A. It was about 5.30 in the afternoon.
Q. Did you say anything to him?
A. Yes, I told him, and I asked him if he is coming in to work
Q. What do you mean by are you coming in to work? Can you
specify?
A. He's coming tomorrow and Sunday, and I told him if he doesn't
come in time , then he doesn 't have to come here at all [sic]
However, thereafter, the question was asked-
Q. Did you tell him if you don't come in on time Saturday and
Sunday, or did you tell him if you don't come in Saturday and Sunday9
A. I didn't put on time, because I didn't know if he'd come on time
or doesn't come on tune. Monday I saw the card, he doesn't come on
time, I was aware he didn't come in Friday. [sic]
13 In September 1975, Gomez' hourly rate was raised to $3.50 per hour
General Counsel does not take the position that Mahon is
a supervisor within the meaning of Section 2(11) of the
Act. On the other hand, General Counsel alleges that Har-
ry Mark is such a statutory supervisor.14
Panta Mahon: The evidence shows that Panta Mahon is
the third highest paid employee of Respondent, receiving
$4.25 an hour.15 He is a full-time knitter, who is a trusted
employee. The evidence shows that on Saturdays neither
Harry Mark nor Sam Mark is present in the factory. Sam
Mark testified that when any problem arises with the knit-
ters, he is in touch with the knitter by telephone because he
telephones in many times per day. Sam Mark is absent
from the factory as a salesman during most of the day.
Panta Mahon punches a timecard like all other knitters.
Although the evidence shows that he does assign work on
the weekends, there is no indication that he is an agent of
Respondent for the purpose of any relations with the em-
ployees in any way. Certainly there is no express or implied
agency by which Sam Mark or even Harry Mark or any
other supervisor or officer of the Company gave Mahon
authority to deal with employees with regard to their labor
relations or employment. The most that can be said of the
evidence in this record is that on the weekends he assigns
work. The facts of this case, as will be seen hereafter, dem-
onstrate that those assignments appear to originate from
Harry Mark or Sam Mark and are not the subject of inde-
pendent action or discretion by Mahon. In view of General
Counsel's concession that Mahon is not a supervisor, I can-
not conclude on the basis of the evidence before me that he
is an agent for the purpose of receiving knowledge of and
binding Respondent with regard to Vasquez' union activi-
ties. Similarly no mantle of agency has been placed around
Mahon's shoulders by which some apparent authority to
act for Respondent was displayed. Under all the circum-
stances in this case, Mahon is not an agent of Respondent
for the purpose of receiving knowledge of Vasquez' union
activity, binding Respondent thereby.
Harry Mark: Vasquez testified that Harry Mark is a' "su-
pervisor" who gives out work and takes care of the ma-
chines. He also testified that Harry Mark assigns the ma-
chines to knitters for work and that when the job is
completed he rotates or reassigns the knitters to different
sets of machines. The testimony shows that at the time of
such assignments, Sam Mark is not present. Vasquez also
testified that on Friday, September 26, Harry Mark told
him which machines he should run the next day, Saturday,
and what the job was on those machines. The assignment
of the machines on Friday took place near the machines
and Harry Mark told Vasquez that Panta Mahon, who was
standing nearby, would assign the machines the following
day. The following day Mahon did assign the machines.
Sam Mark was asked whether he knew that Harry Mark
gave instructions to other employees. His response was:
"Usually I'm just giving instructions. ^ If some problem with
14 Neither the agency of Mahon nor the alleged supervisory status of
Harry Mark was pleaded in the complaint . On the other hand, Respondent,
faced with these assertions at the opening of the hearing, did not plead
surprise, did not ask for postponement of the hearing, and displayed a will-
ingness to meet the allegations
5 Sam Mark testified without contradiction that another knitter, Joseph
Lukic, was employed for 5-1/2 years, whereas Panta Mahon was employed
only 5 years. Lukic is paid $5 per hour, Mahon, $4.25
TOV KNITTING MILLS
a machine, then he's giving the instructions. He can run the
machines or not run the machines. This I don't have to tell
him because he knows." On the other hand, Vasquez testi-
fied without contradiction that he saw very heated argu-
ments between Harry Mark and Sam Mark conducted in a
foreign language. At the end of the argument, with regard
to the fixing or use of the machine, Harry Mark would
prevail and Sam Mark would walk away.
The evidence shows that Harry Mark is the son of Sam
Mark; that according to Sam Mark there are no supervi-
sors in the plant when Sam Mark is out selling in New
York City; any problems relating to the mechanical opera-
tion of the machinery are solved by Harry Mark; that any
other type of production problem is solved via the tele-
phone by Sam Mark.
The evidence shows that Harry Mark owns 15 percent of
the outstanding stock in the Respondent's corporation, is
paid $250 a week, and does not punch a timeclock. The
undisputed evidence also shows that he assigns and reas-
signs work to knitters directly or through Panta Mahon.
Most of the Board precedents regarding the status of
sons of corporate officers relate to the question of whether
the son is a supervisor or, in any case, an agent of a respon-
dent in the sense that his statements or actions bind the
master in a master-servant relationship for the purposes of
deciding alleged violations of Section 8(a)(1) of the Act,
Whiting Corporation, 188 NLRB 500 (1971); Federal Pre-
scription Service, Inc., 203 NLRB 975, 986 (1973); Rubin
Brown d/b/a Ace Wholesale Electrical Supply Co., 133
NLRB 480, 500 (1961). Respondent cites Page Boy Compa-
ny, Inc., 107 NLRB 126 (1953) and Moe Scharfstein & Phil
Scharfstein, d/bla Steinway Clothing Company, 103 NLRB
1314 (1953), in both of which cases sons or relatives were
found not to be supervisors or agents sufficient to bind the
respondent. To be sure the problems of supervisor status
and of agency have been, and continue to be, vexing prob-
lems to Administrative Law Judges and the Board. See
Board Fora Inc., 222 NLRB 922 (1976). The difficulty of
the problem is present in this case notwithstanding that the
cases cited by Respondent are clearly distinguishable. For
in Page Boy Co., supra, the close relative, unlike the instant
case, had no authority whatsoever to assign work. In Stein-
way Clothing Co., supra, the close relative worked short and
irregular hours and unlike the present case was not regard-
ed by employees as a supervisor. Moreover, he was not so
closely identified with management that his conduct could
be imputed to management. See Trimfit of California, Inc.,
101 NLRB 706 (1952), enfd. 211 F.2d'206 (C.A. 9, 1954).
As far back as 1940, the courts and the Board were wres-
tling with the problem of agency-where an employee, not a
supervisor, was believed in some way to act on behalf of
the employer. Thus, verbal formulas were devised. The Su-
preme Court in International Association of Machinists;
Tool and Die Makers Lodge No. 35 [Serrick Corp.] v.
N.L.R.B., 311 U.S. 72, 80-81 (1940), spoke about persons
in a "strategic position to translate (to employees) the poli-
cies and desires of management " In Trimfit of California,
supra, the Board spoke about an employee "closely identi-
fied with management" so that his conduct should be im-
puted to respondent. More recently, the Board has wrestled
with the problem in Board Ford, supra.
17
As in the above cases, I find it unnecessary to specifical-
ly decide whether Harry Mark comes within the definition
of "supervisor" within the meaning of Section 2(11) of the
Act, notwithstanding that, on this record, it is uncontested
that he had the apparent power to assign work and to ro-
tate assignments among employees without specific author-
ity from acknowledged supervisors. It is not merely, on this
record, that the new employee, Vasquez, believed, perhaps
erroneously, that Harry Mark had this power even though
it was clear that Vasquez knew that Harry Mark was Sam
Mark's son and that Sam Mark was the president of the
Company. Here, we have Harry Mark assigning to Panta
Mahon the responsibility of assigning machines, i.e., work,
that Vasquez was supposed to do over the Saturday and
Sunday weekend. In fact Panta Mahon did assign ma-
chines to Vasquez. With no other supervisor present over
the weekend, Harry Mark, through and with Panta Mahon,
assigning work to Vasquez to be performed over the week-
end, it cannot be said that Respondent did not place Harry
Mark in a "strategic position" to translate to employees the
"policies and desires of management." JAM, Lodge No. 35
[Serrick Corp.] v. N.L.R.B., supra. I regard Sam Mark's
testimony as calculatingly evasive on the question of
whether he knew that his son, Harry Mark, was assigning
work to the employees. Thus, Sam Mark said in response
to whether he knew that his son gave instructions to em-
ployees: "Usually I give just instructions."
Taken as a whole therefore the record shows Harry
Mark is paid $250 a week, and is a full-time, salaried per-
son, not an hourly worker; is a 15-percent stockowner; is
the son of the president and chief stockholder of the Com-
pany; has the power to effectively assign and reassign em-
ployees to jobs; there is no other supervisor present in the
factory among the six knitters and bookkeeper in view of
the daily absence of Sam Mark who is off in New York
selling; and, as in Board Ford, Inc., 222 NLRB 922 (1976),
I find that the question of imputation of knowledge to Re-
spondent through Harry Mark should be made from a pre-
ponderance of all the relevant evidence in the record. Thus,
even in view of the extremely small shop which constitutes
Respondent's business but in the absence of contempora-
neous demonstrations of unfair labor practices through
threats or interrogation, I am willing to apply the precedent
of or draw the inference of knowledge of union activities
used in cases following the rule of Wiese Plow Welding Co.,
Inc., 123 NLRB 616, 618 (1959), which precedent was fol-
lowed in Board Foray supra. Rather, I find that, under all
the circumstances above numerated, whether Harry Mark
possesses the indicia of the statutory supervisor because he
has the power to assign work (especiallybecause there is no
management representative present other than himself) or
whether he is viewed as an "agent" of Respondent either
clothed with the power to run the factory in his father's
absence or with the power to translate management's de-
sires for production into direct orders, and is thus a "strate-
gic position" agent, I find that this conduct binds Respon-
dent for purposes of this case as hereinafter noted.
1. The testimony of Santos Vasquez: The testimony of
Santos viewing his demeanor during the hearing, demon-
strated a surface confidence which was not borne out by
the facts. Thus, I found Vasquez' insistence on the fact that
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was discharged on Monday rather than Tuesday to be
unsettling with regard to his credibility. Moreover, I find
no support in the testimony of George Henderson or else-
where that, while nding in the elevator with Henderson,
the truckdriver, helper, two employees, and Vasquez, Sam
Mark mentioned the Union. Although Henderson is an
employee of the real estate company whose principal ten-
ant in the premises at 47 Hall Street appears to be Respon-
dent, and Henderson might well have trimmed his testimo-
nial sails in testifying against the interest of a tenant of his
employer, I observe nevertheless that Henderson's testimo-
ny with regard to the conversation in the elevator ride did
not support Vasquez. Lastly, I note that Vasquez' version
of his conversation with Harry Mark on the day after the
discharge would have me believe that Harry Mark, bla-
tantly and with no hesitation whatsoever, told this alleged
discriminatee that the reason for his being discharged was
his attempt to bring in a union to represent the employees
of Respondent. On this ground alone, I would tend to dis-
credit Vasquez and find that no such statement was made
by Harry Mark.
I have found above that Harry Mark's statement, wheth-
er viewed as the statement of an agent or a supervisor,
binds Respondent. In any event Harry Mark did not testify
at the hearing and I must conclude that although he was in
Israel at the time, he nevertheless was under the control of
Respondent at least to the degree of causing Respondent to
request that the hearing be postponed until such, reason-
able time as Harry Mark's testimony might be included in
the record, either by deposition or otherwise. No such ap-
plication for continuance was made. While I believe that
Harry Mark did not leave this country because of the pen-
dency of the litigation (in view of the fact that the only
record evidence is that he left on December 1, 1975, and
the complaint was not issued until December 4, 1975), and
notwithstanding that the charge was pending since October
1975, I draw no adverse inference from the fact, alone, that
Harry Mark was not called as a witness. It appears to me,
therefore, that with regard to Vasquez' conversations with
Harry, Mark, the record necessarily stands unrefuted.
While I am loathe, as above noted, to credit the testimony
of Vasquez, and while I recognize the rule that, on occa-
sion, even the unrefuted testimony of a witness need not
necessarily be credited, I do not believe that either on de-
meanor grounds above or because Vasquez' testimony is
intrinsically unbelievable that I should discredit his version
of the testimony'with regard to his conversation with Harry
Mark on the day after Vasquez' discharge. In view of my
unwillingness to discredit this version, I necessarily credit
in fact that Harry Mark told him that he was causing trou-
ble or bringing trouble and that he should "take a walk."
On its face, with Harry Mark telling Vasquez that he was
"bringing trouble" or "causing trouble," such a statement,
it seems to me, is wholly inconsistent with a suggestion that
Vasquez was discharged,for lateness. The only consistency
which iti serves is that Sam Mark testified that he told his
son of a threat that Vasquez made on the way down in the
elevator at the time he fired Vasquez. The issue that is left
for me to decide is whether Sam Mark actually did tell his
son of a threat and whether the son then used the word
"troublemaker" or a similar expression in telling Vasquez
to "take a walk." Again, however, Harry Mark was not
present in the hearing room to testify with regard to the
conversation between himself and Vasquez. In a choice be-
tween the direct testimony of Vasquez on one hand and the
inference that Sam Mark's testimony would have me draw,
i.e., that the word "troublemaker" or "causing trouble" was
an expression directed against Vasquez because of Harry
Mark's anger at the threat to his father, I refuse to counter-
balance the direct testimony with the inference. I therefore
find that Harry Mark did not speak to Vasquez with regard
to any threat that Vasquez made to Sam Mark.
The testimony of George Henderson is not entirely in-
structive. As to whether the conversation that he overheard
at the loading dock between Vasquez and Harry Mark was
conducted by Harry Mark in a loud, strident voice, George
Henderson's testimony was inconclusive. With regard ^ to
what else might have been said by Harry Mark to Vasquez,
George Henderson testified that all he heard was an accu-
sation by Harry Mark that Vasquez was bringing-"trouble"
and that Vasquez should "take a walk." Henderson testi-
fied that, at that point he left the area because someone
rang for the elevator. He also testified that he walked away
toward the luncheonette. I regard the two bits-of testimony
as excuses to not reveal further testimony in view of the
fact that George Henderson testified that he thought that
there was more to the conversation between Harry Mark
and Vasquez at the time George Henderson walked away.
I infer that Henderson's testimony was less than entirely
accurate or truthful because he is employed by the real
estate operator of the loft building in which Respondent is
the principal tenant.
In any case, since I have been,required to deal in infer-
ences, I do not see how the use of the words "causing
trouble" can reasonably be used against a person who had
dust threatened the physical safety of one's father.
2.The testimony of Shlomo (Sarni) Mark: In evaluating the
testimony and the credibility of Santos Vasquez, I also be-
lieve it necessary, in this case, tot measure such credibility
along with the credibility of Respondent's only witness and
chief officer. I was more thoroughly dissatisfied with the
credibility of Shlomo Mark than'I was with Vasquez'.
I was dissatisfied with Sam Mark's testimony with re-
gard to the chronology of when he first saw the latenesses
on Vasquez' timecards. I was also dissatisfied with his ex-
planation with regard to why he had not warned Vasquez
that one more lateness would cause discharge under 'the
iron rule in the shop that three; latenesses automatically
cause discharge.
Thus it is clear that Vasquez was on time in the morning
only on the first day of his employment, Wednesday, Sep-
tember 24. He was late on the very next day, Thursday,
and was completely absent on Friday, September 25. This
was known to Sam Mark. The uncontradicted testimony is
that Sam Mark and Harry Markl excused Vasquez' Friday
absence on the grounds that Vasquez was in the hospital. If
Sam Mark can be credited, he was very angry on Friday
night because Vasquez had failed to make any contact
whatsoever with Respondent on Friday to tell Respondent
that he would not be working at all that day. On the very
TOV KNITTING MILLS 19
next day that Sam Mark was present in Respondent's
premises, Monday, September 29, the bookkeeper, early in
the morning, according to one version of Mark's testimony,
showed him the timecard from the previous week which
showed that Vasquez had been late on the second day of
his employment. Vasquez' absence on Friday was the last
notation on the timecard. This allegedly did not excite
Shlomo Mark's interest enough to go to the time rack to
check to see if this employee, dust hired, already late, al-
ready absent on the third day of his employment, had even
come in to report for work on Saturday and Sunday as he
had been directed. Moreover, Shlomo Mark did not have
enough interest to see whether this employee had been late
on Saturday and Sunday, which would have caused him to
be late 3 out of 4 days and missing on the fourth day.
Shlomo Mark's testimony was that he was too busy with
other things. Yet, Shlomo Mark, in addition, failed to tell
the employee that the employee was treading a dangerous
line since one more lateness would cause his discharge. At
this time, of course, Vasquez had been late on Thursday,
Saturday, and Sunday and had already gone over the line.
Shlomo Mark testified that he had other business to do and
did not have time "just to look for every small thing." It is
this type of testimony that causes me to look with great
suspicion upon the motive of Respondent in discharging
Vasquez for continued lateness.
In addition, although Shlomo Mark at one time testified
that the bookkeeper showed him both cards on Monday,
September 29, which would have necessarily shown even
further lateness on the part of Vasquez and would have
caused, on Shlomo Mark's testimony, the discharge to have
taken place on Monday,' later on, Shlomo Mark changed
his tetimony so that he did not see the second timecard
until Tuesday, the very day of the discharge.
I was also struck with the testimony that Shlomo Mark
gave wherein he said that lateness automatically caused
lack of production and that his production records were
available to show that. Later testimony by Shlomo Mark
indicated that it did not necessarily follow that because an
employee was late, the lateness caused a loss of production.
In addition, there is the unrefuted testimony of Vasquez
that during a 2-day period, he saw a knitter care for 10
machines at one time.
Lastly I noted that Sam Mark appeared to change his
testimony as to whether, on Friday, September 26, in addi-
tion to admonishing Vasquez to come in on Saturday and
Sunday, he also told him to come in on time on Saturday
and Sunday. As above noted, an early version of Mark's
testimony included the use of those words whereas thereaf-
ter he testified that he just told Vasquez to come in on
Saturday and Sunday.
Under all the facts and circumstances of this case, in-
cluding my conclusion that Vasquez, while by far not a
model employee, was not discharged solely because of any
rule relating to continued lateness and was not discharged
because of continued lateness, I conclude that he was dis-
charged at least, in part, for reasons other than that. Al-
though the matter is hardly free from doubt, I credit the
testimony of Vasquez with regard to his conversation with
Harry Mark on the day following his discharge. I have
noted that Henderson was not a full and free witness per-
haps because of his interest in keeping his job or at least in
his belief that his job would be protected by not testifying
fully with regard to Harry Mark.
I am compelled, however, not to credit Vasquez' testimo-
ny that on the day after the discharge, Harry Mark told
him that he had been fired because he attempted to bring
the Union in, and that, if he was seen around there again,
Harry Mark would bash his head in. A statement of this
type by Harry Mark, although unrefuted, flies in the face
of otherwise reasonable conduct. I nevertheless credit Vas-
quez, at least, in part, because I believe that George
Henderson's testimony, in large part, is corroborative of
Santos Vasquez' and indicates that one of the reasons for
Vasquez being fired was that he was "causing trouble"; i.e.,
distributing union membership cards. The word "trouble-
maker" is seen in Board cases, e.g., Princeton Sportswear
Corporation of Pennsylvania, 220 NLRB 1345 (1975), often
denotes a troublemaker for some purpose proscribed by
the statute; i.e., one who is bringing in a labor organization
to represent employees of the Respondent; but see Mush-
room Transportation Company, Inc v. N.L.R.B., 330 F.2d
683 (C.A. 3, 1964). In the instant case, there is no testimony
refuting Vasquez' testimony that he distributed 9 cards
among approximately 12 unit employees within a few days
prior to the discharge for lateness.
There remains the question of whether Shlomo Mark
gave Vasquez permission to arrive at the Respondent's
premises at 7 or 8 a in. rather than at 6 a.m. I do not credit
Santos Vasquez in this regard. I credit Shlomo Mark that
he told Vasquez that the working hours were from 6 a.m. to
6 p in. I note that Santos Vasquez' testimony vacillated as
to whether the workday was a 12-hour workday or wheth-
er, in fact, he was told that he had to work 12 hours. I also
find it difficult to believe that even assuming that Shlomo
Mark told him that he didn't have to arrive at 6 a.m., he
told Vasquez that he could arrive for work at 7 or 8 a.m. It
is common experience that factories must have employees
who arrive at a particular time rather than a variable time.
I therefore do not credit Vasquez on this matter. The fact
that Gomez, the knitter helper, arrived each day at 7:30
indicates that he had a set time to arrive and I credit Shlo-
mo Mark's testimony that he gave him a different time to
come in, in order to save money and also because Gomez
acted as a helper, a sweeper , and a garbageman . I believe,
on this record, that Vasquez seized upon the fact that Go-
mez came in later than himself to estabish an alibi whereby
he had been granted permission by Shlomo Mark to actu-
ally come in late. I find that no such permission was grant-
ed. It should also be noted that Shlomo Mark continuously
referred to the fact that all of his employees came in on
time, and that any lateness was intolerable. Even coming in
on time was intolerable in view of the Company's policies
to require employees to arrive 10 to 15 minutes beforehand
in order to actually change their clothes and take over the
knitting machines when the previous shift ceased work. In
spite of Sam Mark's testimony, and in spite of having the
timecards in his possession, not a single timecard was in-
troduced into evidence to show the regularity of punching
in and punching out of all the other knitters. I regard this
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a circumstance not favorable to Respondent. This does
not mean that Respondent gave Santos Vasquez permis-
sion to start at variable hours. But it does not show, on the
other hand, that all of the knitters actually punched in and
out on time and that Santos Vasquez was the only delin-
quent.
I conclude, from all the circumstances, especially my
conclusion that Shlomo Mark seized on Vasquez' contin-
ued lateness as a convenient pretext to rid himself of an
employee, a new bad apple who was attempting to bring
the Union in, that Vasquez was discharged for distributing
union membership cards. I ascribe this motivation to Shlo-
mo Mark by virtue of the statement of his son, his agent,
on the day after the discharge. I conclude that Respondent
discharged Vasquez in violation of Section 8(a)(3) and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The unfair labor practices of Respondent set forth in
section III, above, occurring in connection with its opera-
tions set forth in section I, 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
thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act, I shall recommend that it cease and desist
from engaging in such unfair labor practices and take cer-
tain affirmative action provided in the recommended Or-
der below, designed to effectuate the policies of the Act.
Among these remedies, I shall recommend that Respon-
dent offer immediate and full reinstatement to Santos Vas-
quez to his former position, without prejudice to his senior-
ity and other rights, privileges, and working conditions,
dismissing if necessary anyone hired in such job, and to
make him whole for any loss of earnings or other monetary
loss he may have suffered as a result of the discrimination
against him, less interim earnings, if any, plus interest at 6
percent per annum. Any backpay is to be determined on a
quarterly basis as set forth in F. W Woolworth Company,
90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Upon the basis of the foregoing findings of fact and
upon the entire record within this proceeding, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent , by discharging and failing to reinstate
Santos Vasquez because of his activities on behalf of the
Union, discriminated against him , thereby discouraging
membership therein in violation of Section 8(a)(1) and (3)
of the Act.
4. Respondent's acts and conduct, described above in
paragraph 3 hereof, are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 16
The Respondent, Tov Knitting Mills, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local 155, Knitgood
Workers International Ladies Garment Workers Union,
AFL-CIO, or in any other labor organization, by the dis-
criminatory discharge of any of its employees, or in any
other manner discriminating against them with respect to
their hire or tenure of employment or any term or condi-
tion of employment.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights pro-
tected by Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring
membership in a labor organization as a condition of em-
ployment, as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Offer Santos Vasquez immediate and full reinstate-
ment to his former job or, if his job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights or privileges, and make him whole
for any loss of earnings he may have suffered in conse-
quence of his discriminatory discharge, in the manner set
forth in the Remedy section herein.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay and other sums due
under the terms of this Order.
(c) Post at its Brooklyn, New York, factory copies of the
attached notice marked "Appendix." 11 Copies of said no-
tice on forms provided by the Regional Director for Re-
gion 29, after being duly signed by Respondent's author-
ized representative, shall be posted by Respondent
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter in conspicuous places,
16 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
17 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board"
TOV KNITTING MILLS 21
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives you, as an em-
ployee certain rights, including the right to engage in self-
organization, and to form , join, help , or be helped by
unions. Accordingly , we assure you that:
WE WILL respect your above -stated rights under the
National Labor Relations Act.
WE WILL NOT dismiss any employee or in any other
manner discriminate against any employee with re-
gard to hire , tenure, or terms or conditions of employ-
ment, so as to discourage membership in, affiliation
with, sympathy for, or lawful activity on behalf of Lo-
cal 155, Knitgood Workers, International Ladies Gar-
meat Union Workers, -AFL-CIO, or any other labor
organization. I
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form , join, or assist
any union, to bargain collectively with representatives
of their own choosing, and to engage in concerted ac-
tivities for the purposes of collective bargaining or
other mutual aid or protection , or to refrain from such
activity except to the extent that such right may be
affected by an agreement requiring union membership
as a condition of employment , as authorized in Sec-
tion 8(a)(3) of the National Labor Relations Act, as
amended. - -
WE WILL offer Santos Vasquez, whom we discharged
because of his ,union membership and activities, im-
mediate and full reinstatement to his former job or, if
that job no longer exists , to a substantially equivalent
position, without prejudice to his , seniority and other
rights and privileges ; and WE WILL give him backpay,
plus interest, for any pay he may have lost because of
our discriminatory dismissal of him.
All of you are free to join or not join Local 155, Knit-
good Workers, International Ladies Garment Union
Workers, AFL-CIO, or any other union, except for an
agreement requiring union membership as a condition of
employment as authorized by law.
Toy KNITTING MILLS, INC.