Willow Mfg., Corp.

National Labor Relations Board - Board Decisions

Sep 26, 1977

232 N.L.R.B. 344 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Willow Mfg. Corp.; Oak Apparel, Inc. and Local 107,
International Ladies' Garment Workers' Union,
AFL-CIO. Cases 29-CA-4928 and 29-CA-5123
September 26, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On March 7, 1977, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, Respondents filed
exceptions and a supporting brief, Charging Party,
hereinafter called Local 107 or the Union, filed a
brief in answer to Respondents' exceptions, and
General Counsel filed a brief in support of the
Administrative Law Judge's Decision and a brief in
reply to Respondents' exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
1. We agree with the Administrative Law Judge,
for the reasons set forth by him and for the further
reasons discussed below, that Respondent Willow
Mfg. Corp., herein called Willow, violated Section
8(a)(1) of the Act by interrogating employees with
respect to their union activities, soliciting an employ-
ee to withdraw his authorization card, promising
employees benefits if they refrained from union
activity, and threatening employees with plant
closure if the Union became their collective-bargain-
ing representative. 2
The Administrative Law Judge found that Gene
Vitrano, president and co-owner of Willow, unlaw-
fully interrogated employee Louis Carr during a
I Respondents have excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dr) Wall Products,
Inc.. 91 NLRB 544 (11950)., enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 The Administrative Law Judge also found. inter alia, that Respondents
Willow and Oak Apparel, Inc., herein called Oak, constitute a single
employer within the meaning of Sec. 2(6) and (7) of the Act. and that certain
other allegations of the complaint should be dismissed. We agree with these
findings, We further agree with the Administrative Law Judge that Willow's
grant of increased holiday pay to employees violated Sec. 8(a( I) of the Act
ut. in view of the broad Order herein, find it unnecessary to pass upon his
conclusion that the grant of benefits also violated Sec. 8(a)(3) of the Act.
:1 All dates herein are 1976 unless otherwise indicated.
4 See Erie Technological Products, Inc., 218 NLRB 878 (1975); General
A utomation Manufacturing, Incorporated, 167 N LRB 502 (1967).
232 NLRB No. 56
conversation between the two men on February 18,
1976, 3 I day after the Union's demand for recogni-
tion. Similarly, the Administrative Law Judge found
that the interrogation of employee Anthony Serino
on March 8 or 9 by Anthony Vitrano, father of Gene
and part owner and manager of labor relations at
Oak, violated Section 8(a)(1) of the Act. Respondents
attack the findings as to the interrogation of Carr
essentially on credibility grounds. Inasmuch as we
have affirmed the Administrative Law Judge's
credibility resolutions, we find no merit to Respon-
dents' exceptions in this regard. Respondents further
contend that the interrogation of Serino was not
unlawful because it occurred in "an atmosphere
totally devoid of any coercion." We find nQ merit to
this contention in view of our conclusion, discussed
below, that during this same conversation Anthony
Vitrano made unlawful threats of plant closure if the
Union's organizing campaign were successful. In any
event, we find that the interrogation had no legiti-
mate purpose and was not accompanied by any
assurances against reprisal. Under these circum-
stances, we conclude that the questioning was indeed
coercive and, accordingly, violated Section 8(a)(l) of
the Act.4
In the February 18 conversation with Carr, Gene
Vitrano emphasized that the Union's excessive
demands had forced other plants on Long Island to
go out of business. Similarly, Anthony Vitrano told
Serino that, if Local 107 successfully organized
Willow's employees, the shop might not be able to
make any money and would therefore be forced to
close. Likewise, during the week of February 23,
Gene Vitrano told employee Milton McKnight that
Local 107 had forced other plants to close, mention-
ing particularly a business owned by the father of
one of McKnight's fellow employees. During this
same conversation with McKnight, Vitrano said that
Willow's employees would get the same benefits from
their employer that Local 107 would allegedly obtain
for them. In this context of unlawful interrogation
and promise of benefits, 5 we conclude that the
foregoing statements regarding possible closing of
I In addition to the unlawful promise of benefits made to McKnight by
Gene Vitrano, Foreman Robert Pallaten, as found by the Administrative
Law Judge, commented to McKnight during the latter part of February that
McKnight had already received increased benefits and would soon be
promoted. We agree with the Administrative Law Judge that these
statements constituted implied promises of benefits, particularly inasmuch
as they were made in the course of a conversation in which Pallateri raised
the question of why Willow's employees needed a union to represent them.
It is clear from the unlawful promises of benefits, considered in tandem with
the threats of plant closure, that at the same time that Respondents were
decrying the adverse economic effects of unionization and predicting the
resulting potential necessity to close the plant, Respondents also indicated
to employees that they could obtain the same benefits that a union could
offer without being represented. Thus, in effect, Respondents stated that
although they could not afford to meet Local 107's demands, they could
nonetheless afford to give employees equivalent financial benefits. These
344
WILLOW MFG. CORP.; OAK APPAREL, INC.
the plant were not "predictions carefully phrased on
the basis of objective fact but rather were not-so-
subtle threats [of] plant closure." 6 Accordingly, we
agree with the Administrative Law Judge that these
statements violated Section 8(a)(1) of the Act.
We further agree with the Administrative Law
Judge that Gene Vitrano's comment to Carr during
the February 18 conversation, that the latter could
withdraw his authorization card if he did not mean
what he said when he signed it, was unlawful. Having
already coercively interrogated Carr and threatened
him with plant closure as a result of unionization,
Vitrano "suggested" that Carr could retrieve his card.
In these circumstances, we find that the suggestion
constituted a solicitation to Carr to withdraw his
card in violation of Section 8(a)(1) of the Act. 7
2. The Administrative Law Judge concluded that
Willow's change from an oral to a written warning
system violated Section 8(a)(3) and (1) of the Act on
grounds that the employees' union activities "trig-
gered a change in their attitude and work habits"
which in turn caused Willow to implement a written
warning system to document incidents of miscon-
duct. We disagree with the Administrative Law
Judge's conclusion that the change was unlawful.
It is well established that the use of a warning
system as part of a disciplinary procedure is
permissible where the procedure is not implemented
in response to protected union activities of employ-
ees.8 In the instant case, the undisputed evidence
establishes that prior to the organizing campaign
Willow had in effect a disciplinary system consisting
of oral warnings. The evidence further establishes
that, following the Union's demand for recognition,
employees refused to obey supervisors' orders,
productivity declined, and employee discipline essen-
tially collapsed. It is further undisputed that the
written warning system was adopted solely in order
to document instances of employee misconduct. In
these circumstances, we conclude that a preponder-
ance of the evidence does not warrant a finding that
the change in the warning system violated Section
8(a)(l) or (3) of the Act, and we shall therefore
dismiss this allegation of the complaint.
3. We agree with the Administrative Law Judge
that issuance of a bargaining order is warranted to
remedy Respondents' unfair labor practices. Not-
withstanding our conclusion that the change in the
warning system did not constitute an unfair labor
mutually inconsistent statements afford further support for our conclusion
that Respondents' statements regarding possible plant closure were not
mere economic predictions.
6 Russell Stover Candies, Inc., 221 NLRB 441. 443 (1975).
T Cf. Moldamatic, Inc., 223 NLRB 1096 (1976), in which the Board held
that questions asked in a discussion during which other coercive statements
were made violated Sec. 8 (aXI) of the Act. even though such questions
might have been permissible standing alone.
practice, it is clear that a bargaining order is required
in light of our conclusions that Respondents coer-
cively interrogated employees, solicited an employee
to withdraw his authorization card, made threats of
plant closure, promised benefits to employees if they
refrained from union activity, and granted benefits to
induce employees to abandon their support for the
Union. The possibility of erasing the effects of these
unfair labor practices and of ensuring a fair election
is slight and therefore the employees' choice, as
expressed by authorization cards, will be better
protected by a bargaining order.9 The verbal com-
munications found herein to have violated Section
8(a)(1) of the Act were at the height of the organizing
campaign at a time when there was considerable
concern among employees that union representation
would lead to the closing of the plant. Thus, although
only 3 employees were directly involved in this
unwarranted conduct, the total unit was comprised
of only 17 employees and it is reasonable to infer that
the unlawful statements made by top management
officials to individual employees were disseminated
to most, if not all, of the other unit employees.
Furthermore, the grant of increased holiday pay
found herein to have been unlawful clearly affected
the entire bargaining unit. Accordingly, we agree
with the Administrative Law Judge that Willow has
violated Section 8(a)(5) and (I) of the Act by refusing
to bargain with the Union and that the Order should
run against both Willow and Oak.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and thereby orders that the Respon-
dents, Willow Mfg. Corp. and Oak Apparel, Inc.,
their officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order as so modified:
i. Delete paragraph l(f) from the recommended
Order and reletter the subsequent paragraphs ac-
cordingly.
2. Delete paragraph 2(a) from the recommended
Order and reletter the subsequent paragraphs ac-
cordingly.
3. Substitute the attached notice for that of the
Administrative Law Judge.
Gene Vitrano also unlawfully interrogated Carr, a day or so after the
February 18 conversation, as to whether Carr was still with Local 107. a
query which may well have been prompted by Vitrano's concern as to
whether his tactics had achieved the desired effect. This second interroga-
tion of Carr further buttresses our conclusion that the earlier "suggestion"
was in fact a solicitation to Carr to withdraw his card.
8 Hogue d Knott. Inc.. 217 NLRB 565 (1975).
9 N.LRB. v. Gissel Packing Co., Inc., 395 U.S. 575, 614-615 (1969).
345
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that, with respect to all
other unfair labor practices not found herein, the
complaint be, and it hereby is, dismissed.
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 all
employees these rights:
To engage in self-organization
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other aid or protection
To refrain from any or all these things.
WE WILL NOT interrogate you about your union
activities and sympathies.
WE WILL NOT solicit you to retrieve authoriza-
tion cards you have given to a union.
WE WILL NOT promise you benefits if you
refrain from union activities.
WE WILL NOT threaten you with plant closure in
the event a union becomes your bargaining
representative.
WE WILLI NOT grant you benefits to induce you
to abandon your support for a union.
WE WILL NOT refuse to recognize and bargain
with Local 107, International Ladies' Garment
Workers' Union, AFL-CIO, as the representative
for purposes of collective bargaining of Willow
Mfg. Corp.'s production and maintenance em-
ployees.
WE WILL NOT in any other manner interfere
with you or attempt to restrain or coerce you in
the exercise of the above rights.
WE WILL, upon request, bargain collectively
with Local 107 International Ladies' Garment
Workers' Union, AFL-CIO, as the exclusive
representative of Willow Mfg. Corp.'s employees
in a unit of all production and maintenance
employees at Willow Mfg. Corp.'s plant located at
41 East Ranick Drive, Amityville, New York,
excluding office clerical employees and supervi-
sors as defined in Section 2(11) of the Act, and, if
an understanding is reached, embody such
understanding in a signed contract.
All our employees are free, if they choose, to join
Local 107, International Ladies' Garment Workers'
Union, AFL-CIO, or any other labor organization.
WILLOW MFG. CORP.;
OAK APPAREL, INC.
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge:
The charge is Case 29-CA-4928 was filed on March 26,
1976,' and amended on April 7. The complaint was issued
on May 28 and amended on July 16. The hearing opened in
Brooklyn, New York, on August 16 and continued on
August 17 and 18. On the latter date I recessed the hearing
indefinitely in order to give the General Counsel an
opportunity to enforce his subpena against Frank Romano
in the United States District Court for the Eastern District
of New York.
The charge in Case 29-CA-5123 was filed on July 26.
The complaint was issued on September 8. 1 granted the
General Counsel's motion to consolidate Case 29-CA-
5123 with Case 29-CA-4928 for hearing on September 27.
The hearing resumed in Brooklyn on November 11 and
was concluded on November 12.
The issue litigated was whether Respondent Willow
violated Section 8 (aX)(1) and (3) of the National Labor
Relations Act, as amended, under circumstances and in a
manner which justify a finding that it refused to recognize
and bargain with Local 107 in violation of Section 8(a)(5)
of the Act under the principles enunciated by the Supreme
Court in N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969). For the reasons set forth below, I find it did.
Upon the entire record, including especially my observa-
tion of the demeanor of the witnesses, and after due
consideration of briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondents are both New York corporations. Willow
has a plant in Amityville, New York, where it is engaged in
the business of cutting fabric for women's clothing and
related products. Oak has a plant in Copiague, New York,
where it is engaged in the business of sewing women's
clothing and related products. Each annually performs
services valued at more than $50,000 for firms located in
States other than New York which themselves annually sell
and ship goods valued at more than $50,000 across state
lines.
11. THE UNFAIR LABOR PRACTICES
A. The Single Employer Issue
All of the activities alleged as unfair labor practices in
both complaints are attributed to Willow. The unit for
[)ales are 1976 unless otherwise indicated.
346
WILLOW MFG. CORP.; OAK APPAREL, INC.
which the General Counsel seeks a bargaining order is
limited to Willow's employees. However, the complaints
allege that Willow and Oak constitute a single integrated
business enterprise. The General Counsel seeks to have any
order handed down in this proceeding run against Oak as
well as Willow because Oak has already been found to
have committed unfair labor practices in Oak Apparel, Inc.,
218 NLRB 701 (1975).
Most of the facts relating to this issue are stipulated. The
criteria against which the facts must be measured to
determine whether Willow and Oak are one employer for
purposes of administering the Act were recently and
summarized by the Board in Stoll Industries, Inc., 223
NLRB 51, 53-54 (1976), when it adopted the Decision of
Administrative Law Judge Herzel H. E. Plaine. Judge
Plaine said:
The ultimate question is whether the two enterprises are
sufficiently integrated to consider the business of both
together in applying the standards of the Act. The
principle factors weighed in deciding that sufficient
integration exists include the extent of (1) interrelation
of operations, (2) centralized control of labor relations,
(3) common management, and (4) common ownership
or financial control. While none of the factors has been
held to be controlling, stress has been laid upon the first
three factors to show operational integration, particu-
larly centralized control of labor relations.
Here, there is little dispute that the first, third, and fourth
tests are met. Both Willow and Oak work on contracts for
jobbers in the garment industry; that is, each works on
fabric which it does not own to produce a product which
also does not belong to it. Willow cuts material for the
customers which engage its services. Oak sews. Of the
garments sewn by Oak, 98 percent have been cut by
Willow for the same jobbers. However, only 20 to 25
percent of the fabrics cut by Willow are sewn by Oak.
When Willow sends cut material to Oak to be sewn it does
so on the instruction of the jobber who owns it, not because
of any contractual arrangement between Willow and Oak.
In the words of the stipulation, "both Willow and Oak
receive work from substantially the same jobbers."
As to common ownership and management, the stipula-
tion reveals that Oak is owned by Joseph (Gene) Vitrano
and his wife Emma, while Willow is owned, in equal shares,
by Gene Vitrano and two persons who are unrelated to him
or his family. Gene and Emma Vitrano are the only officers
and directors of Oak. Gene Vitrano and his unnamed
associates are the only officers and directors of Willow.
Gene Vitrano handles substantially all of the negotiations
with jobbers for the work done by both Willow and Oak.
He signs the paychecks for the employees of both Willow
and Oak. Both payrolls are prepared at Willow's plant.
The dispute over this issue turns on the second criterion
enumerated in Stoll-centralized control of labor relations.
In this area, the stipulation only reveals that Anthony
Vitrano, Gene Vitrano's father, "manages and controls
labor relations at Oak Apparel, Inc." However, it is clear
from Oak Apparel, Inc., supra, that Gene Vitrano and
Anthony Vitrano both have a hand in control of labor
relations at Oak. Parts of the record in this proceeding
other than the stipulation establish with equal clarity that
Anthony Vitrano plays a significant role in control of labor
relations at Willow.
Gene Vitrano is the active day-to-day manager of
Willow. His father is known in the plant as "the chief."
Father was in Florida when, as is more fully set forth
below, Local 107 demanded Gene Vitrano recognize it on
February 17. Sometime during the following week, employ-
ees learned the chief was coming back to straighten things
out. (In this respect, I do not credit the testimony of Gene
Vitrano that his father was in Florida because he had
retired. Retirement status is inconsistent with the stipula-
tion by Respondent that Anthony Vitrano "manages and
controls labor relations" at Oak.) When, exactly, he arrived
on the scene is unclear in the record. However, he
participated in the events in early March which surrounded
the termination of Frank Romano, the employee who was
the General Counsel's principal witness in this proceeding.
(A charge filed by Local 107 that Romano was discharged
in violation of Section 8(aX3) and (1) of the Act was
withdrawn after investigation revealed it had no merit.) On
March 9, Anthony Vitrano was present as Romano was
quizzed about why his timecard had been punched out at 5
p.m. the day before when he had left for lunch at noon and
not returned. Romano was given a written warning later
that day by Foreman Robert Pallateri. (The fact that the
warning was in writing is the only aspect of Romano's
departure which is germane to the unfair labor practice
allegations in this proceeding.) On March 12, when
Romano returned to the plant and asked to be allowed to
change his mind about quitting, Anthony Vitrano was one
of the persons he talked to. Romano was told he could not
come back to work. On the basis of these incidents, I find
Gene and Anthony Vitrano share control of labor relations
at Willow just as they do at Oak.
Since Willow and Oak meet all four of the criteria set
forth above in Stoll, I find they are a single integrated
business enterprise.
B. Credibility
The events surrounding the two changes in Willow's
operations which the General Counsel has alleged as
violations of Section 8(a)(3) and (1) of the Act are
undisputed. The conversations which underlie the indepen-
dent 8(a)(l) allegations are another matter. The General
Counsel called six employees as witnesses. Five of them
testified about conversations with Gene Vitrano, Anthony
Vitrano, Cosmo Sagristano, Willow's plant manager,
Robert Pallateri, Willow's foreman in charge of the cutting
operation, and/or John Avino, a rank-and-file employee.
(The testimony of Tomas Pabon related only to the 8(a)(3)
holiday pay issue.) Respondent called only Gene Vitrano
and Sagristano in its defense. (Pallateri was no longer
employed by Willow at the time of the hearing. Respon-
dent's counsel readily stipulated that, if called, he would
testify he shifted from oral to written warnings for
violations of company rules sometime after Local 107
demanded recognition.)
The major part of the testimony relied on by the General
Counsel came from Frank Romano. It pitted him, in large
measure, against Gene Vitrano. I do not credit Vitrano,
347
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
principally because of his statement on the witness stand
that an affidavit which he gave a Board investigator in
connection with this proceeding was only 90 percent
accurate. However, the General Counsel's case is not
automatically established thereby, for I do not credit
Romano either. In his case, my reluctance to believe him
when his testimony is an irreconcilable conflict with that of
either Vitrano or Sagristano grows out of the events which
surrounded his leaving Willow's employ. He went home for
lunch on March 8, fell asleep, and failed to return to work.
Someone punched his timecard out as of the end of the
day. When he returned to work on March 9, he was given a
written reprimand. This upset him so badly that he quit. He
told Local 107 he had been discharged because of his union
activities. Local 107 filed an unfair labor practice charge on
his behalf, then withdrew it when the investigation revealed
he had not been discharged at all. In both Vitrano's case
and Romano's case, attitude toward the truth in dealing
with the Board's investigative processes is complemented
by demeanor on the witness stand in my decision not to
credit them.
Since the General Counsel has the burden of proof, my
discrediting of Romano means that I make no findings of
fact as to incidents where his version is disputed by one or
the other of Respondent's witnesses. For example, the only
evidence to support an allegation that Sagristano "threat-
ened . . . employees with plant closure" is Romano's
account of a conversation he claimed to have had with
Sagristano on February 18. Like the General Counsel's
witnesses other than Romano, Sagristano was generally
credible. He denied saying the things attributed to him by
Romano. Therefore, there is no reference below to any
such conversation, just as there is no reference to
conversations which Romano claimed to have had with
Gene Vitrano.
To recapitulate, I have relied on the testimony of Frank
Romano and Gene Vitrano only to the extent they are
corroborated by others. The findings of fact which follow
are a synthesis of the testimony of the witnesses I found to
be credible and represent, I hope, an accurate picture,
based on the record as a whole, of what happened at
Willow's plant in late February and early March 1976.
C. The 8(a)(1) Issues
I. Facts
Armed with valid authorization cards signed by II1 of
Willow's 17 production and maintenance employees,
Edward Banyai and Gasper Sciacca, officials of Local 107,
went to Willow's plant at noon on February 17 to demand
recognition. As the lunch hour began, they rounded up the
I I employees who had authorized Local 107 to represent
them, gave them large buttons declaring support for the
International Ladies' Garment Workers' Union which the
employees pinned to their clothing, and proceeded to the
office. Eventually, all 13 men were admitted to the private
office of Gene Vitrano, Willow's managing owner. Banyai
Car placed this conversation on the afternoon of February 17.
However, his recollection was so uncertain that the affidavit he gave to a
Board investigator, coupled with Sagnstano's testimony about what
happened that afternoon, convinces me that, as to this detail. Gene Vitrano
handed Vitrano a letter in which Local 107 claimed to
represent a majority of Willow's employees in a production
and maintenance unit and demanded recognition. Banyai
made the same demand orally. Vitrano asked if Mary still
worked for Local 107. Banyai said she did. (This was an
allusion to Oak Apparel, Inc., supra, where two of Local
107's paid organizers named Mary Calligaris and Antoin-
ette Jackson were found to have been discharged by Oak in
violation of Sec. 8(aX3) and (1) of the Act.) Vitrano said he
understood what was going on, Banyai did not have to
explain the situation to him. Banyai said fine, when could
he expect to hear from Vitrano? Vitrano said in a week or
two, as soon as he had a chance to get in touch with his
lawyer. The meeting was over before 12:30. Banyai and
Sciacca left. The employees finished their lunch hour.
Work resumed at I p.m. However, little if any produc-
tion was accomplished in the plant that afternoon. Instead,
the employees gathered in groups and discussed the
situation. The question that was uppermost in their minds
was whether Local 107's demand would lead to closing of
the plant. This rumor was started by the Avino brothers,
John and Joseph, and Greg Giardano, three of the six
employees who had not signed authorization cards. In the
course of railing at the cardsigners for putting all their jobs
in jeopardy, the Avinos and Giardano said that Gene
Vitrano had told them he would close the plant rather than
go union. Pallateri was at his desk in the production area
but out of earshot while these conversations were going on.
Sagristano spent all but a few minutes of the afternoon in
his office, adjacent to Vitrano's in the office area. He, too,
did not overhear what the employees were saying to each
other. Vitrano spent the entire afternoon in his office and,
consequently, did not overhear what the employees were
discussing. John Spampinato, one of the 11 employees who
had signed authorization cards, came into Vitrano's office
to talk to him near quitting time. There is no credible
evidence in the record of what Vitrano and Spampinato
said to each other. Conversations in which employees
discussed the possibility of the plant closing occurred on
the days immediately following February 17.
The next day 2 Louis Carr, one of the employees who had
signed Local 107's authorization cards, went to the office to
talk to Gene Vitrano about his fears. Vitrano asked Carr
what he thought about Local 107. Carr said he was worried
because of an experience he had had with the Teamsters on
a previous job. Carr asked Vitrano what he was going to do
about Local 107's demand. Vitrano said that Local 107, by
making demands which employers had been unable to
meet, had caused many plants on Long Island to go out of
business. Vitrano said Local 107 was not going to be
paying Willow's employees, he was. Carr indicated doubt
that he had done the right thing when he signed an
authorization card. Vitrano told Carr to ask Local 107 to
return his card if he did not mean what he said when he
signed it.
A day or two later Carr went to Gene Vitrano's office
again to complain about John Avino. The problem on
was right when he testified that he first talked to Carr on February 18. Carr's
and Vitrano's versions of what they said to each other are, of course,
diametrically opposed.
348
WILLOW MFG. CORP.; OAK APPAREL, INC.
Carr's mind grew out of a dispute he had had with Avino
over their respective duties and was unrelated to Carr's
prounion or Avino's antiunion stance. As Carr was leaving
the office, Vitrano asked him if he was still with Local 107.
Carr did not reply.
Sometime during the week of February 23 (i.e., the week
following the one in which February 17 fell), Milton
McKnight, another cardsigner, went to the office to borrow
money from Gene Vitrano. In the course of their conversa-
tion Vitrano told McKnight substantially the same thing he
had told Carr about Local 107's record on Long Island. He
cited, as an example, a shop which Sagristano's father had
owned which had been forced out of business by Local
107's excessive demands. Vitrano said Local 107 was not
interested in Willow's employees, only in the $6 a month in
dues it would get from each one. He said he knew the
prounion employees were wearing their ILGWU buttons at
Local 107's behest to aggravate him because Local 107
hoped he would fire them. He said he was not going to fire
them, he would just wait for them to quit. He said it would
take a little time but the employees could have the same
benefits Local 107 could get for them without having Local
107 represent them. He said employees had voted Local
107 out of the shop some 15 years ago and Local 107 was
just trying to get back in. (There is nothing in the record to
indicate whether or not this remark had any basis in
historical fact.) McKnight got his loan.
Around this same time McKnight had a conversation
with Robert Pallateri, the foreman, in which Pallateri
brought up the question of whether Willow's employees
needed a union to represent them. Pallateri pointed out to
McKnight that he had already gotten $10 extra holiday pay
for Washington's Birthday (see the section below entitled
"Holiday pay"). He added that McKnight would soon be
promoted to spreader which would mean a raise for him as
well as an end to such menial duties as emptying barrels,
sweeping the floor, and tying cut goods.
Sometime in early March, Gene and Anthony Vitrano
summoned Anthony Serino, another cardsigner, to the
office. (Anthony Vitrano knew Serino as a worker in the
garment industry from a relationship which predated
Serino's employment by Willow.) Anthony Vitrano asked
Serino why he had gone with Local 107, adding the
employees should have come to him and asked for what
they wanted instead of going to Local 107. Serino said
Anthony Vitrano had a reputation for not giving too many
benefits, adding that, although Vitrano might be right in
saying the employees had made a mistake when they went
to Local 107, what was done was done. Anthony Vitrano
said the industry was in bad shape and, if Local 107 did get
in, the shop might not be able to make any money because
of higher expenses and might have to close. Serino said
both the Company and the employees might have made a
mistake, the Vitranos by not treating the employees better
and the employees by going to Local 107.
2. Analysis and conclusions
It is obvious, and I find, that Respondent Willow
committed the following independent violations of Section
8(a)(l) of the Act:
Interrogation of employees about their union activi-
ties and sympathies when Gene Vitrano talked to Louis
Carr and when Gene and Anthony Vitrano talked to
Anthony Serino.
Solicitation of employees to retrieve the authoriza-
tion cards they had given to a union when Gene
Vitrano talked to Carr.
Promise of benefits if employees refrained from
union activities when Gene Vitrano and Robert
Pallateri talked, on separate occasions, to Milton
McKnight.
There remain for consideration two issues raised by the
complaint. Is Willow responsible for John Avino's state-
ments to employees? Did Gene and Anthony Vitrano
threaten to close the plant if Local 107 came in?
The allegations with respect to John Vitrano were added
to the complaint in Case 29-CA-4928 in the amendments
of July 16. Why the General Counsel elected to single out
John and ignore his brother, Joseph, as well as Greg
Giardano, all three of whom talked about the plant closing,
is unexplained. In any event, the testimony of General
Counsel's witnesses on this point does not establish that
Gene Vitrano told John Avino he would close the plant for
it is hearsay in that respect. Rather, for the General
Counsel to prevail on this issue, he must first establish that
John Avino was acting as Respondents' agent when he told
prounion employees Gene Vitrano had said he would close
the plant rather then go union. General Counsel's brief
argues for such a finding on two grounds, thus:
Employees were also interrogated and threatened
with plant closure by John Avino as illustrated by the
testimony of Frank Romano, Milton McKnight and
Louis Wilchynski. The General Counsel contends that
Avino was a special agent of Respondent for this
purpose. See Teledyne Denial Products, 210 NLRB 435.
These threats were ratified and condoned by Respon-
dent as the testimony of Frank Romano indicates. It is
particularly disturbing that Gene Vitrano did not
reassure Romano and tell him he would not close but
rather told him he could not answer the question
repeatedly.
My failure to credit Romano, coupled with the fact that
Gene Vitrano, Sagristano, and Pallateri were out of earshot
when antiunion employees were spreading plant closure
rumors, negates any finding of agency on a ratifica-
tion/condonation theory. As to the contention that John
Avino was explicitly commissioned to spread such a rumor,
Teledyne is distinguishable from the situation here. There
Plant Manager Opotow "had his secretary try to find out why
the employees wanted a union. She succeeded in having the
employees list their demands for presentation to Opotow.
She carried this list into Opotow's office and later returned
to inform the employees that the demands had been
'okayed,' and for them to sign the list." (Emphasis
supplied.) Here there is no evidence on which to base a
finding Respondent Willow had antinunion employees,
including. John Avino, do anything. I find, therefore,
Respondent Willow did not violate Section 8(a)(1) when
John Avino interrogated employees and told them Gene
349
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vitrano had said he would close the plant rather than go
union.
As to the Vitranos' comments about the effect of
unionization on the plant's future, it is clear that they
couched their remarks in economic terms. Whether the
employee to whom they were talking was Louis Carr,
Milton McKnight, or Anthony Serino, their theme was that
Local 107 had a history of forcing employers in the area
out of business by raising their costs to unacceptable levels.
There is no evidence that this theme was anything other
than a figment of the Vitranos' imagination. As such, it was
more than a reasonable prediction of results of unioniza-
tion over which Respondent Willow had no control and
became a prediction of reprisal against employees' union
activities. I find, therefore, Respondent Willow did violate
Section 8(a)(l) when Gene and Anthony Vitrano impliedly
threatened employees with plant closure in the event Local
107 became their bargaining representative.
D. The 8(a)(3) Issues
1. Holiday pay
In 1976 Washington's Birthday was celebrated on
Monday, February 16, the day before Local 107 demanded
recognition. Prior to February 17, Willow's policy with
respect to holiday pay was as follows: Employees on the
payroll for more than 3 months received a lump sum
according to their job classifications for New Year's Day,
Washington's Birthday, Memorial Day, Labor Day, and
Thanksgiving Day. Cutters # I received $25, cutters #2
$20, and all other employees, including spreaders, received
$10. A few days after February 17, Willow changed its
policy so that all cutters now receive $25, spreaders receive
$20, and all other employees (characterized now as
"packers" on the "Contract" on the plant bulletin board
which sets forth Willow's policy with respect to holiday
and vacation pay) receive $10. The change was made
retroactive to cover Washington's Birthday. As a result,
when employees were given holiday pay for Washington's
Birthday, John Avino, John Spampinato, and Anthony
Jackson received $25 instead of $20, while Alex Ippolito,
Frank Romano, and Milton McKnight received $20
instead of $10.
In discrediting Gene Vitrano generally, I perforce
discredit him specifically as to his explanation for these
events. He said that he authorized promotions from cutter
# 2 to cutter # I for Avino and Spampinato on Pallateri's
recommendation and that everything else which occurred,
including, especially, the handwritten alterations on the
bulletin board contract which announced the change in
policy, was a mistake by his underlings of which he was
unaware until charges were filed-in this matter. Even if I
were to credit other portions of Vitrano's testimony, this
would be impossible to swallow. The timing in relation to
Local 107's demand is too close to admit of any
explanation other than an antiunion motive. Even the fact
that four of the six employees who benefited immediately
from the change in policy (Spampinato, Jackson, Romano,
and McKnight) were supporters of Local 107 does not help
Willow. It, like Pallateri's remark to McKnight about the
extra $10 he had already received, only reinforces the
conclusion that the motive for liberalizing holiday pay was
to induce employees not to bring Local 107 into the plant
as their bargaining representative. I find, therefore,
Respondent Willow violated Section 8(a)(3) and (1) by
granting its employees a benefit, namely, an increase in
holiday pay, to induce them to abandon their support for
Local 107.
2. Written warnings
This is the one issue added to this proceeding by the
complaint in Case 29-CA-5123. As already indicated,
Pallateri gave Romano a written warning, the first in
Willow's history, on March 9 for failing to return to work
after lunch on March 8. It was signed, on behalf of Willow,
by both Pallateri and Sagristano. Gene Vitrano's explana-
tion for this change from a system of oral warnings only
was as follows:
Q. Did there come a time when you instituted a
written reprimand procedure?
A. Yes.
Q. Approximately when was that?
A. I spoke to Bob Pallateri and Cosmo [Sagristano]
as the discipline was just astrocious two to three weeks
prior to the first time I issued a first warning.
No, it was right after the union recognition, right
after that everything broke down in the place.
Q. Wait a second, right after February 17th what
broke down, what happened?
A. Discipline just broke down terribly in the place.
Q. What do you mean by that?
A. Well, it would happen that you would have two
or three guys playing baseball in the back of the
building, playing baseball with a tube and a piece of
paper.
You would say, "Hey, get back to work" and
something like that which is what the usual thing was
and you would get answers like "Go to hell, we don't
need you and we got people protecting us."
And I would get a little angry with them and they
eventually would go back, but those were the kinds of
innuendos and name calling going on.
We found guys sleeping between the fabrics.
There was drinking of beer on the premises.
There was smoking of pot which was enormous.
I mean, not that it didn't happen before this, but it
happened at a tremendous amount after that.
The answering of anytime Cosmo or Bob Pallateri
would tell someone to do something they would say,
"The hell with you" and they would walk to the toilet.
They would come out and do it, but there was a
tremendous amount of slow down, constantly walking
back to the toilet as much as three or four or five people
in the toilet at the same time.
The cutters and the spreaders have to work in teams.
There would always be one guy missing and the
other guy would have to stand there and wait.
We couldn't, I couldn't get it established because I
knew from prior experience myself if I start to do what
I want to do is to tell a guy to stay home or he is going
to be fired or something like that, that the charges were
350
WILLOW MFG. CORP.; OAK APPAREL, INC.
going to come flying through so I just wanted to start to
document these things, expecting a future problem.
In other words, the employees' union activities triggered a
change in their attitude and work habits. This, in turn,
triggered a tightening of Willow's disciplinary procedure. It
follows that Vitrano's explanation constitutes an admission
the change to written warnings was caused by the
employees' union activities. I find, therefore, Respondent
Willow also violated Section 8(aX3) and (I) by changing its
employee warning procedure from oral to written warning
notices because employees were supporting Local 107.
E. The 8(a)(5) Issues
Both in their answer and at the hearing Respondents
denied the appropriateness of a unit of Willow's produc-
tion and maintenance employees with the usual exclusions.
Since their brief only notes their continuing dispute
without advancing any grounds for their position, I am left
at somewhat of a loss. However, I can think of no reason
why the usual rule that a single plant production and
maintenance unit is presumptively appropriate should not
apply here. I find, therefore, that it is.
Local 107's majority status in such a unit as of its
demand for recognition on February 17 is undisputed.
(Indeed, Gene Vitrano admitted he was aware a majority
of the employees wanted Local 107 to represent them. In
view of the fact that all II cardsigners showed up in his
office with Banyai and Sciacca weanng prominent ILG-
WU buttons and continued to wear them thereafter for
varying lengths of time, he could not credibly have done
otherwise.) The first of the numerous unfair labor practices
Respondent Willow committed occurred the next day.
Whether it also refused to bargain with Local 107 turns on
whether those unfair labor practices are sufficiently serious
to bring the Gissel doctrine into play. I think they are. The
lingering effect of Gene and Anthony Vitrano's threats to
close the plant in the context of employee fear and concern
in which the threats were voiced is alone enough to justify
such a result. When it is coupled with the fact that the
carrot of increased holiday pay and the stick of a tougher
disciplinary system are still part of the working conditions
in Willow's plant, the conclusion is overwhelming. I find,
therefore, that Respondent Willow has, by its unfair labor
practices, rendered the possibility of a fair election so
remote that the authorization cards executed by a majority
of its employees in an appropriate unit are a better
indication of their desires with respect to union representa-
tion. By refusing, on and after February 18, to recognize
Local 107 as the representative for purposes of collective
bargaining of the employees in that unit, Respondent
Willow has violated Section 8(a)(5) and (I) of the Act.
Upon the foregoing findings of fact, and upon the entire
record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Willow Mfg. Corp. and Oak Apparel, Inc., are each
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and together constitute a
single integrated business enterprise.
2. Local 107, International Ladies' Garment Workers'
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interrogating employees about their union activi-
ties and sympathies, by soliciting employees to retrieve
authorization cards they had given to a union, by
promising employees benefits if they refrained from union
activities, and by impliedly threatening employees with
plant closure in the event a union became their bargaining
representative, Respondent Willow has violated Section
8(a)(1) of the Act.
4. By granting employees a benefit to induce them to
abandon their support for a union and by changing its
employee warning procedure from oral to written warning
notices because employees were supporting a union,
Respondent Willow has violated Section 8(aX3) and (1) of
the Act.
5. By refusing, on and after February 18, 1976, to
recognize and bargain with Local 107, International
Ladies' Garment Workers' Union, AFL-CIO, as the
representative for purposes of collective bargaining of its
employees in an appropriate unit, Respondent Willow has
violated Section 8(a)5) and (I) of the Act.
6. All production and maintenance employees of
Willow Mfg. Corp. at its plant located at 41 East Ranick
Dnve, Amityville, New York, excluding office clerical
employees and supervisors as defined in Section 2(11) of
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
8. The allegations of the complaint in Case 29-CA-
4928 that Respondent Willow violated Section 8(a)I) of
the Act by the conduct of John Avino and Cosmo
Sagristano have not been sustained.
THE REMEDY
All of the unfair labor practices found herein were
committed by Respondent Willow at its plant. The unit
includes only Respondent Willow's employees. I see no
logical reason why, under those circumstances, an order
should run against both Willow and Oak. However. I am
bound by Board precedent. I am unaware of any change by
the Board in the following rule laid down in Calcasieu
Paper Co., Inc., Southern Industries Company, 99 NLRB
794, 796-797 (1952):
Calcasieu and Southern together constitute a single
employer of the employees at their Elizabeth, Louisi-
ana, plants, and . . . they are jointly responsible for the
unfair labor practices committed in their plants
irrespective of whether such conduct was committed
exclusively by the supervisors or officials at onIy one of
their plants and directly involved only the employees at
that plant. [Emphasis supplied.]
Therefore, an order requiring both Willow and Oak to
cease and desist from the unfair labor practices found,
remedy them, and post a notice is necessary to effectuate
351
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the purposes of the Act. This includes posting of the notice
in both plants and bargaining by both employers jointly
with Local 107 about the wages, hours, and conditions of
Willow's employees. The requirement that Respondents
cease and desist from granting benefits to induce employ-
ees to abandon their support for a union shall not be
interpreted as requiring the taking away of any benefits
presently enjoyed by employees.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER
Willow Mfg. Corp. and Oak Apparel, Inc., their officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees about their union activities
and sympathies.
(b) Soliciting employees to retrieve authorization cards
they have given to a union.
(c) Promising employees benefits if they refrain from
union activities.
(d) Threatening employees with plant closure in the
event a union becomes their bargaining representative.
(e) Granting employees benefits to induce them to
abandon their support for a union.
(f) Utilizing a system of written rather than oral
employee warning notices because employees support a
union.
(g) Refusing to recognize and bargain with Local 107,
International Ladies' Garment Workers' Union, AFL-
CIO, as the representative for purposes of collective
bargaining of Willow Mfg. Corp.'s production and mainte-
nance employees.
;3 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.
(h) In any other manner interfering with or attempting to
restrain or coerce employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following action necessary to effectuate the
policies of the Act:
(a) Expunge from its personnel records any and all
employee warning notices issued on or after March 9, 1976.
(b) Upon request, bargain collectively with Local 107,
International Ladies' Garment Workers' Union, AFL-
CIO, as the exclusive representative of Willow Mfg. Corp.'s
employees in a unit of all production and maintenance
employees at Willow Mfg. Corp.'s plant located at 41 East
Ranick Drive, Amityville, New York, excluding office
clerical employees and supervisors as defined in Section
2(11) of the Act, and, if an understanding is reached,
embody such understanding in a signed contract.
(c) Post at their respective plants in Amityville and
Copiague, New York, copies of the attached notice marked
"Appendix." 4 Copies of said notice, on forms provided by
the Regional Director for Region 29, after being duly
signed by Respondents' authorized representative, shall be
posted by Respondents immediately upon receipt thereof,
and be maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondents to insure
that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps the Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges Respondent Willow violated Section
8(a)(1) of the Act by the conduct of John Avino and
Cosmo Sagristano.
' 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 marked "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."
352