River Togs, Inc.

58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT grant wage and insurance and hospitalization benefit increases to discourage further activity and support for the Union. WE WILL NOT instruct our employees to withdraw from the Union or in the manner by which they might do so. WE WILL NOT in any other manner interfere with, restrain, or coerce our em- ployees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization. QUALITY MARKETS, INC., Employer Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania, Telephone 644-2969. River Togs, Inc. and Local 107, International Ladies ' Garment Workers' Union , AFL-CIO. Case 219-C_A-187. July 1, 1966 DECISION AND ORDER On January 3, 1966, Trial Examiner John H. Eadie Issued Iris Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Exanuner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices, and recommended that these allegations of the complaint be dismissed. Thereafter, Respondent and General Counsel filed exceptions to the Trial Exam- iner's Decision and supporting briefs. The Charging Party also filed exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Zagoriat]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was conmmitted. The rulings are hereby affirmed. The Board has considered the Trial Exanniner's Decision, the exceptions, the briefs, and the entire record in this proceeding, and hereby adopts the findings,' conclusions, and The General Counsel has excepted to the credibility findings made by the Trial Exam- iner it is the Board's established policy, however, not to overrule a Trial Examiner's resolutions with respect to credibility unless, as is not the case here, the clear preponder- ance of all the relevant evidence convinces as that the resolutions were incorrect Stand- ard Dry Wall Products, inc. 91 NLRB 544, enfd 188 F 2d 362 (C .1 3) 160 NLRB No. 2. RIVER TOGS, INC. 59 recommendations of the Trial Examiner, with the following addi- tions and modifications. 1. As described more fully in the Trial Examiner's Decision, in February 1965,2 Local 107, International Ladies' Garment Workers' Union, AFL-CIO (hereinafter called the Union) commenced an or- ganizing campaign among all the unorganized garment plants in Suffolk County, New York, including Respondent's plant in River- head, New York. Around March 11, the Union asked for recognition as majority representative of Respondent's employees, offering to prove its majority status through authorization cards which it had obtained from those employees. On March 17, Respondent refused recognition. Almost immediately after the organizing campaign began, and continuing for a period of about 2 months, Respondent embarked upon a vigorous campaign in opposition to the Union. The Trial Ex- aminer found, and we agree, that Respondent engaged in extensive violations of Section 8(a) (1) of the Act during the course of this antiiinion campaign, including interrogation of employees concern- ing their interests and activity in the Union, threats of reprisal, and creation of the impression among employees that it was keeping their union activities under surveillance. However, in addition to the vio- lations of Section 8(a) (1) found by the Trial Examiner, we find also that Respondent violated Section 8(a) (1) in the following respects: (a) Salvatore Avellino, Jr., is the sole stockholder and owner of Respondent and of Junior Sportswear, a company with a, plant lo- cated in Centereach, New York. On March 15, Avellino made a speech during working time to assembled employees at Respondent's plant. At this time, the Union had already sought recognition and had held two union meetings. A third union meeting was scheduled for that same evening, The Trial Examiner found that Avellino told employees, among other things, that he knew that most of them had attended the union meetings; that, in case any employee did not know, there was going to be a union meeting that night in the "Wind- sor Room" at the Perkins hotel; that as a lot of the employees were still unable to snake the minimum of $1.25 per hour, he did not see how they could make the Union's minimum of $1.75 or $1.80; and, that with the Union's minimum he would have only five operators because the rest would be unable to make it. Avellino also stated that the plant had been nonunion since 1958 and did no business with union jobbers; that it would take months to find union jobbers and he could not keep the plant open that long without work; and that he would be able to continue operation of the plant only if the Union obtained for him a "permanent registration" with a union jobber. 2 All dates , unless otherwise noted, are in 1905: 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Contrary to the Trial Examiner, we find this speech was violative of the Act. Avellino's remarks regarding the union meeting made it amply clear to employees that Respondent was maintaining a close watch over the union activity of its employees and thus created the impression of surveillance, in violation of Section 8 (a) (1). Further, Avellino's statements about the effects of unionization on the plant constituted threats of reprisal, also violative of Section 8(a) (1) be- cause they would clearly convey to employees the idea that if the plant became unionized, it was probable that the employees would lose their jobs either because they could not meet the Union's "mini- mum" or because Respondent would have to close down the plant. (b) We also find that respondent violated Section 8 ( a) (1) by Supervisor Billie Mastrioni's statement to employees sometime around March 18 that three machines were being taken out of the plant "be- cause of the Union." This statement made it clear to employees that they were being punished with loss of work because of their union activity and therefore constituted coercion of employees in the exer- cise of their Section 7 rights. (c) We also agree with the Trial Examiner that Respondent's con- duct, relating to the circulation of the petition in which employees indicated their desire not to join the Union , violated Section 8 (a) (1) of the Act. As described more fully in the Trial Examiner 's Decision, on March 16, the day after the last union meeting, employees Gumarelli and Lennan spoke to Lillian Andreasen, Avellino's personal secre- tary. They explained to her their desire to circulate among the em- ployees a petition by which signatories could indicate that they did not wish to support the Union. At their request, Andreasen drafted the petition and then wrote it out in longhand, making a duplicate copy. That day, during the coffee break, and for about 15 minutes after employees returned to work, employees Lennan and Malinowski circulated this petition and solicited other employees to sign it. Su- pervisor Martin, who usually remains in the back of the shop, and Supervisor Mastrioni were standing in the production area during the entire time that the petition was being circulated, and they spoke to Lennan and Malinowski while these employees were circulating the petition . After obtaining a number of signatures , the two em- ployees went to Andreasen's office and asked her to keep the petition. She refused, and the circulators then gave it to Supervisor Mastrioni. Later the same day, when Avellino called the office, Andreasen told him that some employees who were against the Union were circulat- ing a petition. In view of the foregoing, and in light of Respondent's other anti- union conduct, we find that, by assisting in the preparation of the RIVER TOGS, INC. 61 petition and by permitting its circulation in part on working time, in the presence of and with the knowledge of supervisors, Respondent gave employees the impression that the petition was being circulated with its approval and thus restrained and coerced employees in the exercise of their rights under Section 7, in violation of Section 8(a) (1).3 2. Unlike the Trial Examiner, we find that Respondent discrimi- natorily laid off employees Kozak, Kotun, Adair, Gaines, and Mayo in violation of Section 8(a) (3) of the Act. Respondent is engaged in the manufacture of ladies' dresses. Its plant had been operated using a complete section process, whereby each separate operation was performed by different employees, but, about the time of the layoffs, according to Respondent, the opera- tion was changed to a semi-section system under which each employee performed several different operations on the same garment. Just prior to the layoffs, a customer of Respondent requested that 1,000 dresses with skirts be returned, and about March 17, many skirts were removed from the plant. Supervisor Martin later explained to an employee that this was "because of the Union." When employee Gaines asked Mastrioni if the few remaining skirts were the only ones that the skirt operators had to work on, she replied "yes, the rest is going back ... that's the way you want it." At the same time, three machines, including the machine used by Kotun who was later laid off, were removed from the plant and when Mastrioni was asked why, she replied, "because of the Union." We have found that latter statement by Mastrioni to be violative of Section 8 (a) (1). A day or two later on March 19, employees Gaines and Dixon were laid off. That same day Kozak, who was not at work during that week, ,received word through Kotun, bier daughter, that she was laid off. At the time of the layoffs, these employees were not informed of any changeover in the plant's operations nor were they asked if they possessed any other skill that could be utilized. A short time later, on March 22, Kotun was laid off, and thereafter, on March 24, Mayo and Adair were also laid off. Respondent argues that these layoffs were made for economic rea- sons. Although its contentions are not entirely clear, Respondent ap- parently takes the position that it laid off the five employees who al- legedly were skirt operators for a period of approximately 3 weeks for lack of work, since the only dresses to be sewn at that time were those of an "A-line style," which are one-piece dresses without skirts. According to Respondent, its plant production averaged about 2,000- s The complaint alleges that Respondent committed other unfair labor practices in viola- tion of Section 8(a) (1) in addition to those found herein. However, we shall make no additional findings regarding these allegations, as in our opinion such findings would merely be cumulative and would not affect the remedy. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2,500 dresses per week, and since there were 6,000 "A-line" dresses on hand, there was no need for the skirt operators for 2 or 3 weeks. Respondent makes the further argument that the layoffs were also related to its decision to change from a complete section to a semi- section operation. Thus, according to Respondent, it was losing money under the complete section operation and when, about March 19, a jobber removed 1,000 dresses with skirts, and all that remained were A-line dresses, Respondent decided to make the changeover. Respondent contends that because of this change in operation, it had no need for skirt makers at that time but that it planned to recall the five skirt makers at a later time when it would retrain them for semi-sectional work. The Trial Examiner, although noting that there were persuasive facts and arguments to support the allegations of the complaint that the five employees were discriminatorily laid off, nevertheless, agreed with Respondent that the five employees were laid off for cause. We disagree for the following reasons.' We are not persuaded that Respondent laid off these five employees because there was no work for them. Respondent's arguments, al- though in certain respects inconsistent, are both based upon the fact that these employees were skirt makers and there was no work for skirt makers at that time. However, the record clearly establishes that each of the laid-off employees was not only a skirt maker but had performed a variety of other sewing operations at the plant. Thus, Kozak testified without contradiction that, during the time she was employed, besides working on the skirits, she did closings on blouses, put in darts, and made sashes and bows. Gaines testified without contradiction that she had been employed since the first day the factory was opened, and besides making skirts, she had performed functions such as inserting darts, lining dresses, and closing the sides of blouses. Kotun, whose primary job was, "merrowing facings," had, at various times, also sewn sleeves, tops, blouses and also sewn zippers into facings. Mayo testified without contradiction that she performed work on darts, shoulders, joinings, facings, flaps, and skirts. Avellino admitted that Adair was primarily a dart maker and shoulder joiner. Further, Avellino admitted that at the time of the layoffs he had instructed supervisors to hire "anybody" coming into the plant "with any kind of experience," and Respondent actually hired two unskilled employees, who had to be instructed and who were very "slow." The * In view of the above statements by Dlastrioni , it appears that the change from the complete section manufacturing process to a semi -sectional process itself may have taken. place as a reprisal for the union activity of employees We make no finding on this issue, however,. since the complaint contains no allegation to this effect RIVER TOGS, INC. 63 fact that there was work at the plant for completely unskilled em- ployees while the discriminatees were senior employees, most of whom had been working there since the plant was opened and had per- formed a variety of jobs, is inconsistent with Respondent's conten- tion that the alleged discriminatees were laid off because there was no work. Also, the record indicates that after Kotun and Mayo were re- called several weeks later, they performed the same type of work on skirts that they had been doing prior to the layoff. This fact sug- gests that the changeover to a semi-sectional operation, if made at all, did not occur at the earliest until several weeks after the layoff; or, if the changeover did take place prior to the layoff, that, contrary to Respondent's contentions, skirt makers were still needed under a semi-section operation. Finally, as noted, when Gaines and Kotun were laid off, they were not informed of any changeover in the plant's operations; and none of the five laid-off employees were asked if they possessed any other skill that would be required. In finding that the layoffs were not unlawful, the Trial Examiner relied in part on the fact that none of the laid-off employees were more active on behalf of the Union than others in the plant. But discriminatory action against an employee merely for union member- ship or activity is as much a violation of the Act as his discharge for union leadership.5 The record establishes that each of the five laid- off employees had been active on behalf of the Union and that Re- spondent had knowledge of this fact. Thus, the five laid-off em- ployees signed authorization cards and attended union meetings; Avellino admitted that Respondent "knew that most of the em- ployees had attended the union meetings"; and there was no excep- tion to the finding by the Trial Examiner that Avellino had specific knowledge that Kozak was an active union adherent. In further support of his finding that the layoffs were not unlaw- ful, the Trial Examiner reasoned that if in fact Avellino's purpose in laying off the employees was to discourage union membership, he would have laid off Cratch, who was a poor producer, and he would not have laid off Dixon- or Kotun, the latter being a "superior pro- ducer." We find this reasoning confusing. Respondent's payroll records indicate that Gaines, who was, laid off, was a better-than- average producer and that Kotun had a superior performance record. These facts, if anything, tend to disprove Respondent's 'contentions that the layoffs were for economic considerations, since if, as it claims, Respondent was losing money, it would want to retain its best workers. S 5 Southern Maid Paper Company, 141 NLRB 1023, 1031 ; Des Moines, Springfield and Southern Route, 78 NLRB 1215, 1217. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nor do we understand the Trial Examiner's reasoning that the lay- off of a poor producer would have a greater tendency to discourage union membership. But even if so, the fact is that Kozak, Adair, and Mayo were laid off, and, according to payroll records, they also were poor producers. Accordingly, in view of the foregoing, and particularly in the light of the fact that the layoff took place in the midst of an unlawful antiunion campaign conducted by Respondent, we find that the lay- off of employees Kotun, Kozak, Adair, Gaines, and Mayo was for the purpose of discouraging union activities, and by this conduct Re- spondent violated Section S(a) (3) and (1) of the Acts 3. The Trial Examiner found that Respondent violated Section 8(a) (5) on and after March 12 by refusing to recognize and bargain with the Union as the majority representative of its employees in an appropriate unit. (a) Initially, we agree with the Trial Examiner that a unit of all production and maintenance employees at Respondent's plant in Riverhead, New York, is appropriate. Respondent contends that the only appropriate unit comprises all similarly classified employees at both Respondent's plant in Riverhead, New York, and the Junior Sportswear plant in Centereach, New York. Salvatore Avellino, Jr., is the sole stockholder and owner of both companies which are engaged in the manufacturing of ladies' dresses. The plants are located approximately 25 miles apart, and each is under separate immediate supervision. There is no history of col- lective bargaining at either plant. Junior Sportswear was estab- lished in 1958. When Respondent began operations in January 1964, some employees were temporarily transferred from Junior Sports- wear for the limited purpose of training the new employees, all of whom had been hired solely to work at Riverhead. Other interchange between the two plants has occurred, but only on an emergency basis. The only evidence of product integration between the plants is that, as part of an experimental plan, employees at both plants have per- formed work on the same garments. This plan was discontinued after 4 weeks because it was "too confusing to maintain the same operation in both locations." Also, Respondent's plant does the cutting, when necessary, for garments manufactured at Junior Sportswear. There is one office employee working at Respondent's plant who makes up the payroll for both plants. All personnel and accounting records are separately maintained for each plant, although both plants jointly maintain various insurance and liability policies. 9 We find no merit in the 'General Counsel 's exception to the Trial Examiner 's finding that subsequent to her recall to work Mayo was discharged for cause RIVER TOGS, INC. 65 The Board has held that a single plant unit is presumptively ap- propriate unless there is a bargaining history in a broader unit or unless the plant is so integrated with another as to negate its identity.' On the basis of the foregoing, and as the evidence does not establish a sufficient degree of integration between the plants, we find that a unit limited to the employees of Respondent's plant at Riverhead, New York, is appropriate for the purposes of collective bargaining. (b) We also agree with the Trial Examiner that, since on or about March 12, the Union represented a majority of the 49 employees in the appropriate unit. The General Counsel introduced into evidence 27 cards signed by employees in the appropriate unit.' The Trial Examiner found, as contended by the General Counsel, that the cards of employees Suchto and the two Rodziewicz sisters should be counted toward the union majority despite the fact that all three spoke Polish but no English. Refusing to credit the testimony of Suchto and the Rodziewicz sisters that they did not intend to designate the Union as their bargaining representative when they signed authorization cards at the March 10 meeting, the Trial Examiner found that at the meeting, Banyai, the business manager of the Union, paused during his talk in order that his statements regarding the Union could be interpreted to the Polish employees, and that "the purpose of the authorization cards was ex- plained to them before they signed them." We agree that Suchto's card should be counted because Kozak, whose testimony the Trial Examiner credited, testified that at the union meeting she explained the meaning of the authorization card to Suchto, and that she translated to Suchto Banyai's remarks into Polish. Counting Suchto's card, we find that the Union on March 10, when it made its demand for recognition, represented 25 out of 49 em- ployees. As the Union thus represented a majority of employees in the appropriate unit, we find it unnecessary to decide whether the cards of the Rodziewicz sisters should also be counted toward the majority. Further, like the Trial Examiner, we also find it unnec- essary to decide whether Albert Mastrioni, the husband of Supervisor Mastrioni, although not signing an authorization card, should be counted in establishing the Union's majority, because of his member- ship in the Union. (c) We also agree with the Trial Examiner that Respondent vio- lated Section 8(a) (5) of the Act by refusing to recognize and bargain 7 Dixie Belle Mills, Inc, 139 NLRB 629 8 The General Counsel originally introduced into evidence 30 authorization cards. How- ever, Hobson's card was excluded because she was terminated permanently prior to March 11, and Mallnowski's and Martinsen 's cards were not counted since they were not executed until after the demand for recognition. 257-551-67-vol. 160-6 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Union. We have already found that Respondent engaged in an extensive antiunion campaign, violative of Section 8(a) (1), which included interrogation of employees concerning their interest and ac- tivity in the Union, threats of reprisal, creating the impression of surveillance of union activities, and approving the circulation of a petition in which employees indicated their desire not to join the Union. We have also found that Respondent discriminatorily laid off five employees in violation of Section 8(a) (3). In view of the foregoing, we find that Respondent's failure to accord recognition to the Union, which represented a majority of its employees, was not in good faith, but rather was borne of a desire to gain time to subvert the Union's majority and to thwart unionization, and therefore violated Section 8 (a) (5) of the Act.' THE REMEDY Having found that Respondent engaged in conduct in violation of Section 8(a) (1), (3), and (5) of the Act, we shall order that it cease and desist from such unlawful conduct and post the usual notices. We have found that the layoffs of employees Kozak, Kotun, Adair, Gaines, and Mayo violated Section 8(a) (3), but that Respondent thereafter reinstated them and later lawfully discharged Mayo. We shall there- fore require Respondent to offer to all employees, who were unlaw- fully laid off, except Mayo, immediate and full reinstatement 10 to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them, includ- ing Mayo, whole for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to them of a sum of money equal to that which they would have earned as wages from the date of the discrimination to the date of the offer of full reinstate- ment, less their net earnings during said period, in the manner pre- scribed in F. W. Woolworth Company, 90 NLRB 289, and with interest on backpay due, in accordance with Isis Plumbing c' Heating Co., 138 NLRB 716. In the case of Mayo, backpay with interest thereon shall run to the date of her discharge. AMENDED CONCLUSIONS OF LAW Paragraph 7 of the Trial Examiner's Recommended Conclusions of Law is deleted and the following conclusion of law is substituted therefor : 7. By laying off Frances Kozak, Vera Gaines, Carol Ann Kotun, Rose Mayo, and Cecil Adair because of their union activity, Respond- 6 Joy Silk Mills, Inc , 85 NLRB 1263, enfd as modified, 185 F.2d 732 (C A D C ), cert denied 341 U S. 914 10 As the question whether the laid-off employees were subsequently reinstated to their former or substantially equivalent positions may not have been fully litigated at the hearing, we leave the determination of this issue to the compliance stage of this proceeding RIVER TOGS, INC. 67 ent has engaged in unfair labor practices as defined in Section 8 (a) (3) and (1) of the Act. [The Board adopted the Trial Examiner's Recommended Order," with the following modifications: [1. Add the following as paragraph 1(c) to the cease and desist portion of the Trial Examiner's Recommended Order, and reletter the subsequent paragraphs in sequence : [" (c) Discouraging membership in, or activities on behalf of, Local 107, International Ladies' Garment Workers' Union, AFL- CIO, or any other labor organization, by laying off or in any other manner discriminating against any of its employees in regard to hire or tenure of employment or any other term or condition of employ- ment, because of their union membership or activities." [2. Add the following at the end of paragraph 2(a) of the Trial Examiner's Recommended Order : "The appropriate unit is: [All production and maintenance employees of the Respondent at its Riverhead, New York, plant, exclusive of office clerical employees, guards, and all supervisors as defined in the Act." [3. Add the following as paragraph 2(c) of the Trial Examiner's Recommended Order, and reletter the subsequent paragraphs in sequence: ["(c) Offer Cecil Adair, Frances Kozak, Vera Gaines, and Carol Ann Kotun immediate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them and Rose Mayo whole for any loss of pay they may have suffered by reason of the dis- crimination against them in the manner set forth above in the sec- tion herein entitled "The Remedy." [4. The description of the bargaining unit subparagraph in the notice attached to the Trial Examiner's Decision is amended to read: [All production and maintenance employees of the Respondent at its Riverhead, New York, plant, exclusive of office clerical employees, guards, and all supervisors as defined in the Act. [5. Add the following as the third paragraph to the notice attached to the Trial Examiner's Decision : [WE WILL NOT discourage membership in, or activities on be- half of, Local 107, International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, by laying off "Although finding that Respondent engaged in additional violations of Section 8(a) (1) of the Act by making threats of discharge and other reprisals, creating the impression of surveillance , and engaging in other acts of interference , we find it unnecessary to amend the order as these violations are cumulative and are co,ered, by the Trial Examiner's Recommended Order 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or in any other manner discriminating against our employees in regard to hire or tenure of employment or any other term or condition of employment, because of their union membership or activities. [6. Add the following as the fourth paragraph to the notice at- tached to the Trial Examiner's Decision: [WE WILL offer to the following employees immediate and full reinstatement to their former or substantially equivalent posi- tion, without prejudice to their seniority or other rights and privileges, and make them and Rose Mayo whole for any loss of pay they may have suffered as a result of our discrimination against them, in the manner provided in the section of the Board's Decision entitled "The Remedy." [Frances Kozak, Vera Gaines, Carol Ann Potfl, and Cecil Adair.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding was held before Trial Examiner John H. Eadie in Riverhead, New York, on various dates starting on July 6 and ending on July 23, 1965, on the complaint of the General Counsel and the answer of River Togs, Inc , herein called the Respondent.' The issues litigated were whether the Respondent violated Sec- tion 8(a)(1), (3), and (5) of the Act. After the conclusion of the hearing the General Counsel and the Respondent filed briefs with me. Upon the entire record in the case, and from my observation of the witnesses, I make the following. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a New York corporation with its principal office and plant in Riverhead, New York. As a contractor it is engaged in the manufacture of women's clothes and related products. During 1964, in the course and conduct of its business operations, the Respondent performed services valued in excess of $50,000, of which services valued in excess of $50,000 were furnished to, among others, Casco & Arandy, which enterprise annually produces goods valued in excess of $50,000 which it ships directly out of the State wherein it is located. II. THE LABOR ORGANIZATION INVOLVED Local 107, International Ladies' Garment Workers' Union, AFL-CIO, is a labor organization which admits to membership employees of the Respondent. II. THE UNFAIR LABOR PRACTICES A. Background; sequence of events; interference, restraint, and coercion Salvatore Avellino, Jr., is the sole stockholder and owner of the Respondent and of Junior Sportswear, a company with a plant located at Centereach, New York, which is about 25 miles distant from Riverhead. Junior Sportswear also is engaged in the manufacture of ladies' dresses. Avellino, a contractor, receives material, either cut or uncut from a jobber, to sew into dresses according to the specifications and style design of a jobber, and then ships it back to the jobber, who pays a flat fee per garment. 'Charges were filed by Local 107 , International Ladies' Garment Workers' Union, AFL- CIO, herein called the Union, on March 22 and May 18, 1965 . The complaint issued on May 28, 1965 RIVER TOGS, INC. 69 Avellino established Junior Sportswear in 1958. Upon the opening of the Re- spondent's plant in January of 1964, employees from Junior Sportswear were trans- ferred to it to help train the new work force. During the early part of 1964 a large part of the work for one jobber,Gjenfrey Fashions , was performed at both plants. At all times material herein , cutting for both plants was performed at the Respond- ent's plant. Both plants employ machine operators , pressers , and floorgirls . The Respondent's plant also has cutting department employees . Junior Sportswear worked under a "complete garment" procedure , whereby the operators each performed all the opera- tions necessary to sewing the garment . The Respondent's plant started with a "com- plete section" procedure whereby employees performed only a single operation on the garment and it moved on to another who performed another operation By reason of this procedure Avellino frequently had to transfer employees to different operations or send them home until the flow of work reached their particular opera- tion. This was especially true of the skirt department. At sometime during 1964 the finishing departments of the two plants were con- solidated , with all of such work performed at the Respondent 's plant. This practice was discontinued on or about February 22, 1965, and some finishing employees were transferred to Junior Sportswear . Employees at times were temporarily transferred from one plant to the other to help out because of a bottleneck or because of absentee- ism. In such cases the employees remained on the payroll of their employer The office for both plants is located at the Respondent 's plant. Lillian Andreasen is the only office worker. She makes out the payroll for both plants Although separate payroll records are maintained for both plants , the employees in the finishing department of Junior Sportswear are listed under a blue line in the Respondent's payroll book . The finances of both corporations are handled by the same account- ant who makes monthly visits to the Respondent 's plant. During February of 1965 2 the Union began an organizational campaign among all the unorganized garment companies in Suffolk County, including the Respondent's plant On February 18, the Union distributed literature to employees in front of the plant. Thereafter, three union meetings were held at the Henry Perkins Inn, a hotel in Riverhead, to which only employees of the Respondent were invited. The meetings were held on March 3, 10, and 15, and started shortly after the employees ceased work. The Union provided the employees with meals at the meetings. Edward Banyai, manager of the Union , spoke at each meeting. Clara Rhatigan, business agent of the Union , was present at the meetings During the day of March 10 Supervisor Billie Mastrinoni 3 went to the machine of employee Alice Wright. She asked Wright, "Where are you going tonight " When Wright evaded the question , Mastrioni asked her if she was going to "a union meeting." Wright did not give her an answer. It is found that Mastrioni's interrogation violated Section 8(a)(1) of the Act. About 30 employees were present at the union meeting held on March 10. Three of these employees , Helen and Jane Rodziewicz, sisters, and Jadwiga Suchto spoke Polish only. The Rodziewicz sisters were accompanied by their "cousin," who was not an employee and who acted as their interpreter. Employee Frances Kozak, who spoke both English and Polish , interpreted for Suchto . Banyai paused during his speech in order to give the interpreters time to translate his remarks to the Polish employees . Authorization cards of the Union were signed during the meeting After they were collected , Banyai announced that a majority of the Respondent's employees had signed cards,4 and that he would so notify the Respondent and demand recognition . Employee James (Shorty) Tolar was present at the meeting. He had a camera and attempted to take pictures , but was stopped from doing so. At about 10 : 30 a in., on March 11 during work Supervisor Mastrioni spoke to the employees over "the plant loudspeaker. She stated that she just had received a call from Avellino; that he knew who was at the union meeting the night before; that he would close the shop before he would "join a union", and that any employee who still wanted a union could leave the plant. Since Mastrioni's statements contained a threat of reprisal and created the im- pression to the employees of keeping under surveillance their union activities, they are found to be violative of Section 8(a) (1) of the Act. 2 Except where otherwise indicated , all dates are in 1965 3 The Respondent admitted in its amended answer that Mastrioni was a supervisor within the meaning of the Act Mastrioni did not appear as a witness at the hearing 4 Nine employees , including the Rodziewicz sisters and Suchto , signed cards at the meet- ing Prior to the meeting 19 employees , including James Tolar , Marlene Hobson. and Albert Boler , had signed cards. These cards will be discussed in more detail hereinafter 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At about the end of the working day on March 11, Aveillino had a conversation with Tolar, the employee who had attempted to take pictures at the union meeting. The conversation took place a short distance from where some employees, including Wright, Bartlett, Mayo, and Kotun, were punching out for the day. Supervisor Nick Martin 5 also was present. Avellino asked Tolar if he had "the pictures." When Tolar replied that he did not have any pictures, Avellino said, "Well, why did you lie to me? You promised me you would get them." He asked Tolar, "how do you know there was a union meeting?" Tolar replied, "Because the girls told me." Avellino then said, "Well, Shorty, don't buy a house because you can't buy a home if you don't have a job and none of us will have a job " At the end of the conversation Avellino said to Martin, "Hey, Nick, this guy is a ringleader." 6 It is clear from the above that Avellino was trying to create the impression to employees that he had their union activities under surveillance. He also made a threat of reprisal to Tolar Accordingly, I find that Avellino's remarks were viola- tive of Section 8(a)(1) of the Act. Banyai sent a letter, dated March 11, to the Respondent, as follows: This is to inform you that the International Ladies' Garment Workers' Union has been duly designated as the collective bargaining representative by a ma- jority of your non-supervisory production and maintenance employees. Accordingly, it is hereby requested that the Union be recognized as the ex- clusive bargaining representative of the employees in the aforesaid bargaining unit, and that you meet with the undersigned, as representative of the Union, in order to negotiate a labor agreement for these employees. Kindly acknowledge receipt of this letter and indicate a time and place which is convenient for such a meeting. On March 12, after receiving the Union's letter, Avellino telephoned Banyai. Banyai told Avellino that a majority of the employees had signed authorization cards, and requested him to recognize the Union and meet with it in order to nego- tiate an agreement He offered to prove the Union's majority by showing Avellino the signed authorization cards. Avellino replied that he would "consider going union" only if Banyai would guarantee him "52 weeks' work a year, a registration with a union jobber." Banyai stated, "Our function is not to provide jobbers. Our func- tion is to organize workers." Banyai told him that the Union had filed a petition for an election with the Board and asked him to agree to a consent election. Avel- lino did not answer this request. He complained that the Respondent had been losing money; and warned that if the Union persisted in its organizing efforts, he would be forced to close the plant. He repeated that he would consider recog- nizing the Union only if it got him a union jobber and guaranteed the work. They ended the conversation by agreeing to meet for lunch at a restaurant on Wednesday, March 17.7 Immediately following his conversation with Banyai, Avellino spoke to some cutting employees. They asked him what he was going to do about the Union and told him that they did not want to join it. He replied, "Well, don't worry about it because right now I'm not joining the union either." He asked them, "What took place with these cards?" Employee Boler replied that he signed a card in order to obtain a meal that the Union furnished.8 As noted above, the third union meeting was held Monday night, March 15. That day during work Avellino called the employees together and talked to them. In substance, he told them that he knew that most of the employees had attended the union meetings; that, in case any employee did not know, there was going to be a union 5 The Respondent admits the supervisory status of Martin. He did not appear as a witness at the hearing. 6 The above conversation is based upon the credited testimony of Wright, Kotun, and Bartlett. Avellino testified to the effect that he was merely teasing Tolar. He denied that he sent Tolar to the union meeting to take pictures Tolar did not appear as a witness at the hearing As noted above, Tolar signed an authorization card of the Union. 7 The above conversation is based upon credited portions of the testimony of both Banyal and Avellino. Testimony contrary to the above is not credited. 8 Avellino testified without contradiction to the above. He also testified that after talk- ing to the cutting employees lie spoke to Supervisors 'Martin and Mastrioni, and that they told him that they had heard that "the girls were under the impression that they were signing these cards for a dinner " RIVER TOGS, INC. 71 meeting that night in the "Windsor Room" at the Perkins Hotel; that the Union would probably get the employees what it had promised them; that, however, they should go to the meeting and ask whoever was in charge of the meeting what the Union was going to do to obtain work for the plant, that the employees should first have come to him before going to the Union as he would have explained to them why he could not do certain things, that the Respondent had lost a lot of money teaching the employees to sew and because of "tremendous make up pay", that since "a lot" of the employees were still unable to make the minimum of $1.25 per hour, he did not see how they could make the Union's minimum of $1.75 or $1.80; that with the Union's minimum he would have only "five operators" because the rest would be unable to make it; that he had been nonunion since 1958 and had no connections with union jobbers; that since it would take months to find such jobbers, he could not keep the plant open that long without work, that the prices paid to him by his nonunion jobbers were not enough to pay for the union benefits, that he would have no objections to the Union and would recognize it if it got him a "permanent registration" with a union jobber; and that he would be able to continue operation of the plant under such an arrangement. He asked several employees to state what their experience had been when they worked in union shops. They stated that the shops had "closed down." Some of the em- ployees then said that they were "against" the Union. Avellino put a stop to the ensuing discussion, saying that he was not interested." 9 Employee Helen Malinowski attended the union meeting held on March 15. She asked "quite a few" questions. However, she signed an authorization card during the meeting after Rhatigan told her that the Union had "the majority of the people from River Togs signed up." As the employees entered the hotel, the Respondent's accountant was in the lobby. He was still there for at least 10 minutes after the meeting started.10 On March 16, employees Marie Gumarelli and Angela Lerman went to the office and spoke to Andreasen. They told Andreasen that they did not wish to join the Union and wanted to circulate a petition because they thought that there were other employees who also were against the Union. They explained that they needed two pieces of paper because they were going to solicit the Polish employees separately. When Andreasen gave them the paper, Gumarelli asked her to write the petition because her handwriting was poor Andreasen then wrote the petition in longhand, making a duplicate copy. She phrased it in her own words after Gumarelli told her what she wanted the petition to say." Lerman and Malinowski solicited employees to sign the petitions during the coffee break and for about 15 minutes after the employees had returned to work. Supervisois Mastrioni and Martin were present during this time. Either Gumarelli or Lerman brought the petitions to the office and asked Andreasen to put them "in the files." Andreasen refused The petitions were then given to Supervisor Mastrioni The complaint alleges that the Respondent, by Martin and Mastrioni, authorized and permitted the circulation of the petitions among the employees and induced them to sign it; and that such conduct was violative of the Act. There can be no question under the circumstances related above that the employees were under 9 The above facts concerning Avellino's speech are from credited portions of his testi- mony and that of various witnesses called by the General Counsel Testimony contrary to the above is not credited The General Counsel contends that Aiellino's speech leas violative of the Act I disagree 10 The General Counsel contends that by the accountant's presence the Respondent created "an impression of surveillance " Since the accountant stayed at this hotel when he visited the Respondent's plant, this contention is rejected 11 The petition reads as follows To Whom It May Concern We, the undersigned, garment workers in the employ of River Togs, Inc, River- head, N.Y, want it know [sic] that we do not wish to join a union of any kind and prefer working in a shop which is non-union We are being treated fairly by River Togs, Inc., and see no reason for a change in status Respectfully, Andreasen testified that some time during the day after the employees had left the office Avellino telephoned her, and that she told him that some employees who were against the Union were "circulating a petition 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coercion when they were solicited to sign the petitions . 12 The question remains as to whether or not the Respondent was responsible for such coercion. The plant was small, with less than 50 production employees . It is undisputed that Lennan at times acted as Mastrioni's "assistant," that part of the solicitation took place during work ,13 that production was interrupted, and that Mastrioni and Martin were present while the petitions were circulated . From these facts , I am convinced that either Mastrioni or Martin , or both, had knowledge of the petitions and authorized and permitted their circulation . However, aside from the question of knowledge at the time , it is undisputed that both Avellino and Mastrioni knew of the peti- tions shortly after they were circulated and made no effort to dispel the coercive effect of the solicitations on the employees . Accordingly , I find that the circula- tion of the petitions was violative of Section 8 (a)( 1) of the Act. Banyai and Avellmo met as agreed on March 17 . Banyai was accompanied by Bernard Koozman, a representative of the Union . John Del Mastro was with Avellino. Concerning the conversation Banyai testified credibly as follows: Mr. Koozman and I met Mr. Avellino, Jr. at Friede 's Restaurant at one o'clock and we walked into the lobby of the restaurant and Mr. Avellino turned to us and said, that he had to break the luncheon appointment but he wanted to tell us right off the bat that under no circumstances would he recognize the union or deal with the union , only one way and that would be if we would give him a union jobber, registration and a guarantee of 52 weeks' work in the year. I told him that that's not our job That on occasion we do provide jobbers but we are here now to prove to him that we have the majority of the people signed in River Togs and that we would like to sit down and negotiate an agreement. At this time, he went over to the dining room proper and he beckoned to someone and a person came out who introduced himself as Mr. John Del Mastro Mr. Del Mastro stated that he was aware of the situation here and that he wanted to tell something new and that is that Mr. Avellmo, Senior , was in the hospital, he had suffered a heart attack and couldnt we wait with this whole problem until Mr. Avellino , Senior, was out of the hospital. I told Mr Del Mastro that Mr. Salvatore Avellino, Junior, is the owner and the principal and the president of River Togs, and we wanted to deal with him. Mr. Del Mastro said that that's true , but it is the father's money and he calls the shots. Wouldn't we wait until the father got out of the hospital I said that this puts us at a disadvantage because Mr. Avellino, Junior, had started campaigning against us in the factory , had sent work back. A petition was being circulated against the union and we were at a disadvantage to hold off on anything. Mr. Del Mastro then said that if we would hold off, that he would make sure that the shop would keep working. I said that we couldn't hold off and then Mr. Avellino, Junior, said that this was no good as far as he was concerned either because we had four or five people in the shop as plants , as instigators, that they were going around the factory disrupting production , talking to people and talking for the union and that one was a Polish person and that we would have to tell these people to stop I told Mr. Avellino that we didn 't have any plants in the factory and we don't know what he was talking about Mr. Del Mastro then said that-he turned to Mr. Avellino . Junior, and he said that you keep the shop working and they will keep the people quiet . Other- wise, you give them the pink slip. I then asked Mr. Del Mastro if he would agree to a card check , that if we could get the issue of recognition out of the way, perhaps we could wait until Mr. Avellino's father got out of the hospital. - Mr. Del Mastro said that he couldn 't agree to this. He couldn't speak for the father and then Mr. Avellino, Junior said that this wasn't any good either because he had been in the city a few days prior to this time and he told his 12 The evidence shows that Malinowskl , in substance , told the employees that there would not be steady work if the Union eot in the plant Carol Kotun testified that she signed the petition because she was afraid since Mastrioni was a short distance behind her when she was asked to sign 13 The Respondent did not produce any evidence to the effect that it permitted solicita- tions on company time The record indicates that such was not the case RIVER TOGS, INC. 73 jobbers that there was a union problem going on and that a jobber told him to start sending work back and that the jobber told him that if he has a cancer, that he was to cut it out. And that he lost a great deal of money in River Togs and if we continued our efforts to organize, that he would close He would definitely close. Then I said to Mr. Avellino that we represented the majority and would he admit that? He said no, he wouldn't admit that we represented the majority, that what we did was get the majority of the people signed for a duck dinner. That if he would give the people a dinner, they would all sign for him. Then I said, well, you do admit that we have the majority of the cards and Mr. Avellino said, you can go wipe your . with the cards . . that he had freedom of speech and he could say anything he wanted to and that he was doing just that and he was opening up against us in the factory Then Mr. Del Mastro said, "The more you stir the pot, the worse it stinks." Then I turned to Mr Del Mastro and I said, "Well, you agree to check the cards against the payroll signatures and if you say that we have a majority, would the firm then, would River Togs then recognize us? And he refused. Then Mr. Avellino again said he was losing a great deal of money and that he had maybe a week or ten days work left in the shop, that his jobber told him to send work back, he was going to finish out the work and close down * * * * * * * Then Mr. Del Mastro went back into the restaurant. Mr. Koozman and I started leaving for the parking lot and Mr. Avellino, Junior followed and then he engaged us in conversation while we were getting into the-our car Mr. Avel- lino asked if we knew how much money he had lost in River Togs, that he had moved to Riverhead to give employment to a distressed area. That he was very much upset that he couldn't get a learner's permit, he couldn't get a small business loan and that his accountant for River Togs had just finished filling out the W-2 forms and he had filled out 299 W-2 forms The turnover was very high, the people didn't know how to sew and he asked me how could he pay six paid holidays and two weeks vacation and 65 percent, $1.80 minimum when he is working for a non-union jobber I told Mr Avellino we have a number of union contractors working for jobbers who are non-union and the contractors assume these responsibilities. Then Mr. Avellino said, "Well, you give me a union jobber with a registra- tion and I'll run the best union shop on Long Island " Commencing on or about March 19 the Union established a picket line at the Respondent's plant. B. The layoffs The Respondent laid off employees Frances Kozak and Vera Gaines on March 19, Carol Ann Kotun on March 22, and Rose Mayo and Cecile Adair on March 24. The complaint alleges that the above employees were laid off because of their union activity. The Respondent also laid off employee Angelina Dixon on March 19 Kotun, Gaines, Frances Cratch,14 and Dixon signed union cards at the meeting of the Union held on March 10. Kotun and Dixon also signed the petitions against the Union.15 Mayo, Adair, and Kozak signed union cards on February 26, March 3, and March 6, respectively. 14 The evidence indicates that Cratch was a skirt operator Roth the General Counsel and the Respondent in their briefs state that she was laid off on March 19 The Respond- ent's payroll records were received in evidence The records show that Cratch worked and was paid for 8 hours on March 19 and that she was not ]aid off at any time on or about that date Cratch did not appear at the hearing as a witness Ave]lino testified to the effect that Cratch was laid off on March 19 , that after she was told of her layoff, "she stayed around all day [without pay) and she watched the front maker working and she picked up some ideas" , that (Martin and Mastriont) believed that Cratch had initiative and wanted to learn and that she and Dixon would be good "trainees" for the semi-section operation , and that for this reason they were recalled to work on March 22 15 In her brief the General Counsel states that Cratch was a petition-signer The peti- tions, which were received in evidence, show this not to be the case 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gaines was recalled to work on April 9. Kozak was notified to report for work on April 12 but did not return. Kotun returned to work on April 19. Adair, who was notified to report for work on April 15, did not return until April 19. Mayo was recalled to work on April 26. She was discharged by Avellino on April 29. On March 17 or 18 "many" skirts were removed from the plant Employee Gaines noticed this and asked Supervisor Mastrioni if the few remaining skirts were the only ones that the skirt operators had to work on. Mastrioni replied, "Yes, the rest is going back . . . that's the way you want it." When Cratch, Gaines, and Dixon finished work on these skirts after several hours of work on March 19, Gaines and Dixon were laid off.16 Between March 16 and 18, about three machines were removed from the Re- spondent's plant, one of which was the "merrow" machine used by Kotun 17 One of the employees asked Supervisor Mastrioni why the machinery was being removed Mastrioni replied, "because of the union." 18 When Gaines, Kotun, and Mayo were laid off, they were asked to write their names and telephone numbers on a slip of paper. This had not been required when they had been laid off previously. A change to a semi-section operation was not mentioned to Gaines and Kotun at the time of their layoffs. When Martin laid off Mayo, he told her that the plant was changing to semi-section and would not do complete section any more, 19 that he was going to recall the laid-off employees "One at a time to retrain them" for semi-section; that since she was an operator who had performed "most of the work" needed for semi-section, he probably would recall her the following week; and that there was not the usual amount of work in the plant since a jobber "because of the union ... had pulled some dresses back." Kozak called Martin on March 24 He told her that the plant did not have any skirts, and that he would call her "in a day or so." She did not thereafter hear from Martin until he notified her to report for work on April 12. At that time he told her that the plant was on semi-section and that she would have "to speed up or else " 20 Between March 24 and April 9 two employees worked for about 1 week on skirts. They had not worked on skirts before, had to be instructed for the work by Supervisor Mastrioni, and were "very slow." 21 Employee Mordasiewicz was hired on April 9.22 She could not speak English, had to be trained by Supervisor Mastriom, and worked on skirts. Kotun's prmcinal job before her layoff was "merrowing facings." Her piece- rate earnings on this job were considerably above the minimum wage during almost every week of her employment.23 She was recalled to work by Martin. At the time he told her that the plant was operating under semi-section, and that she would have to work on "the whole top or just the skirt." 24 She worked under the semi- section system on the skirts after her recall. She did not like this work because it was difficult and her piece rate was not "high enough." 25 On more than one occa- 19Kozak, who was not at work during the week ending March 19, received word of her layoff through Kotun, her daughter 17 Kotun testified that she was the only employee who regularly performed merrowing work , and that another merrow machine was left in the plant 18 Mayo testified to the above without contradiction 19 Employee Alice Wright testified that after Gaines was laid off , she saw Supervisor litastrioni train employees for semi-section work 20 The Respondent's payroll records disclose that Kozak's production was consistently poor and considerably below the minimum wage every week 21 Wright testified without contradiction to the above She further testified that the skirts in question had "two seams, " the same as those produced before the layoffs. that she pleated the skirts after the above employees seamed them , that they held up her pro- duction because of their slowness : and that when Gaines and Kozak had performed the seaming operation , she was not held up In her production 22 The record shows that employee Rivera was hired on March 15 and that her employ- ment was terminated on March 25 Avelhno testified to the effect that after March 11 and while employees were laid off lie instructed his supervisors to hire "anybody coming in" the plant "with any kind of experience " 22 Between March 1 and the date of her layoff, Kotun worked 40 hours each week, with weekly earnings between $63 10 and $71 27 The minimum wage for 40 hours was $50 21 The record shows that no merrowing work was performed in the plant , after Kotun's layoff 23 F'or the weeks ending April 23 and 30 her weekly piece-rate earnings for a 40-hour week were $17.14 and $2911, respectively. She quit her job on May 3 On that day her earnings were equal to the minimum wage RIVER TOGS, INC. 75 sion she asked Supervisor Mastrioni to transfer her to work other than semi-section. Mastrioni refused, saying that there wasn't any other work available.26 Mayo's main job before her layoff was on skirts. When she returned to work on April 26, she was assigned to skirts, on the same job that Kotun had. During her first 3 days of work her piece rate earnings for 24 hours were $17.22.27 She com- plained to Supervisor Mastrioni and Martin about her machine, saying that it was "too slow" and kept her production down, and asked for her old one or a "faster" machine. She was told that her old machine was out of order. After she had worked about 21/2 days she was assigned to a "faster" machine. On April. 29 Mayo was called to Avellino's office. He told her that he had been going over the payroll record, that she had not been making the minimum wage, that he had "too much make-up pays" for her, that he had called her back to re- train her, and that she would have to "put out just a little more effort into the job." He asked her if she was going to make her "quota" for that day. She said that she would not 28 Mayo said that she would not have come back to the plant if she had been able to find another job, that she did not like working in the plant, and that the only reason she returned was because she did not want to lose her unemploy- ment benefits. Avellino asked her, "Is that the way you feel about it?" Mayo re- plied, "That's the way I feel about it." Avellino then discharged her.29 The respondent does not contend that the layoffs were due to a lack of work, since there were approximately 6,000 dresses "of an A-line style" in the plant as of March 19. In substance, Avellino testified as to the reasons for the layoffs that the A-line dresses had no skirts; that since production in the plant was from 2,000 to 2.500 dresses per week, the plant had no need for skirt operators for 2 or 3 weeks; that when he notified one jobber of the Union's campaign, it requested that 1,000 dresses (with skirts) be returned; that at the same time since the Respondent was losing money under the complete section operation, he decided to change to "semi-section" where the operators would perform several operations on one garment; 30 that after consulting with his supervisors, he also decided to lay off the skirt operators as their work ran out and to recall them after the other operators had been retrained; and that the A-line dresses did not require any merrowing. He testified to the effect that he discharged Mayo because of her bad "attitude" after her recall and her "in- subordination" and attitude during her conversation with him. There are persuasive facts and arguments on each side of the question of motiva- tion in the layoffs. From the record it appears that Avellino knew which employees were attending the union meetings.31 There was no lack of work; and Avellino, by his own admission, hired employees and was looking for new employees "with any kind of experience" during the time in question. From this it would appear that he would have trained the employees for semi-section work instead of laying them off Avellino's testimony indicates that at least to some degree performance was taken into consideration since it was decided to retain Cratch and Dixon because they were considered potential producers under the semi-section operation. However, the Respondent's records show that Cratch and Dixon, along with Kozak, Adair, and Mayo, all were poor producers. If performance was considered, it would appear that Avellino at least would have retained Gaines, who was a better- than-average producer with few make-up pays, and Kotun, a superior producer.32 Further, the evidence shows that at sometime between March 2 and April 9 and before any of the laid-off employees were recalled two employees who were slow and needed training worked on skirts for about 1 week. The above supports the General Counsel's case. 2 Kotun testified that at this time employee "Marie" asked for and received other work which was not semi-section , such as putting bows on jackets r The payroll record reveals that Mayo' s weekly piece-rate earnings before her layoff were Consistently poor. - 28 The payroll record shows that Mayo 's piece-rate earnings on April 29 were $5 10 for 61/ hours. 2DTiie above conversation is based upon credited portions of the testimony of both Avel- lino and Mayo. Testimony to the contrary is not credited so Contrary to the General Counsel's contention, the record reveals that the Respondent started to train its employees for the semi-section operation immediately after the first layoffs 31 Avellino's conversation with Banyai on March 17 indicates that he knew Kozak to be an active adherent of the Union 32 Avellino testified to the effect that he considered merrowing a simple operation 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It does not appear that any of the laid-off employees were more active on behalf of the Union than others in the plant Their activity was limited to signing cards, attending union meetings, and talking in favor of the Union to other employees. Cratch and other poor producers who signed union cards, such as Margaret Bloem, were not laid off, Neither Cratch nor Bloem signed the antiunion petitions. Yet Dixon and Kotun were laid off after signing the petitions. If Avellino's purpose in the layoffs was to discourage union membership and activity, it would appear that in order to make the picture crystal clear to the employees he would have laid off Cratch and would not have laid off Dixon, even for a half day, and Kotun. More- over, the evidence shows that the change to semi-section was motivated by economic considerations; and that the employees were not laid off at the same time, but at different times as their skirt work ran out. I believe that the Respondent's motives are suspect. But suspicion does not justify an inference of illegal motivation. Accordingly, from all of the evidence I find that the General Counsel failed to sustain the burden of proving that Kozak, Gaines, Kotun, Mayo, and Adair were laid off in violation of Section 8(a)(3) of the Act. The General Counsel also contends that Mayo's discharge on April 29 was viola- tive of the Act. As related and found above, both Mayo and Kotun were working on skirts under semi-section at the time of the former's discharge The piece-rate earnings of both on this work were poor, with large make-up pays. In view of Kotun's past performance, it would appear that a low piece rate was involved. However, Kotun made the minimum wage on her last day of work. Although Mayo was an experienced skirt operator, her production on this job did not improve It was no better or worse than it had been on skirt work before her layoff. This serves to explain why Avellino called her to his office. Under the circumstances I find that Mayo was discharged for cause. C. The refusal to bargain The complaint alleges an appropriate unit of "all production and maintenance employees of Respondent, exclusive of office clerical employees, guards and all supervisors." This susbtantially is the unit claimed by the Union in its letter of March 11 to the Respondent. During his conversations with Banyai, Avellino did not contest the appropriateness of this unit The Respondent contends that a unit including the employees of Junior Sportswear is appropriate. This contention is rejected. Upon all of the evidence I find that the unit alleged in the complaint is appropriate for the purposes of collective bargaining within the meaning of the Act. As of March 11 and 12 there were 49 employees in the appropriate unit including Albert Mastrioni, the husband of Supervisor Mastrioni, but excluding Marlene Hobson. Albert Mastrioni's name is not listed in the Respondent's payroll records.33 At the hearing the Respondent refused to take a position as to his supervisory or nonsupervisory status under the Act. Mastrioni did not appear as a witness at the hearing. Employee Mildred Bartlett, called as a witness by the General Counsel, testified without contradiction that Mastrioni was a presser Accordingly, I find that he should be included in the unit In her brief the General Counsel contends that Hobson should be included in the unit. The Respondent contends otherwise, pointing out that Hobson's employ- ment was terminated permanently prior to March 11. The Respondent's payroll records disclose that Hobson last worked on March 9 and that she was not em- ployed by the Respondent thereafter. For this reason she had been excluded from the unit. The General Counsel introduced into evidence 28 authorization cards dated on or before March 10, including one for Hobson. Since Hobson has been excluded from the unit, her card cannot be counted. In its brief the Respondent contends that the authorization cards of Suchto, the two Rodziewicz sisters, Albert Boler, and Tolar also cannot be counted. Suchto testified that she did not understand English; that at the union meeting held on March 10 she signed a union card; and that she signed it after Kozak ex- plained in Polish that "they wanted to know how many people were here." As related and found above, the Rodziewicz sisters, who did not understand or speak English, brought their cousin to the meeting as their interpreter. This person did not appear at the hearing as a witness. Janina and Helen Rodziewicz both testified, in substance, that Kozak told them that they had to attend a "meeting" on March 10; 331t appears that Mastrioni was excluded because the Respondent considered him as the "head presser" RIVER TOGS, INC. 77 that at the meeting their cousin told them to sign the union cards without explaining them; that although "a man" was talking in English , their cousin did not interpret or explain to them at the time; and that they did not know what the cards were for when they signed them. I do not credit the above testimony of Suchto and the Rodziewicz sisters The testimony in this connection of Banyai , Rhatigan, Kozak, and Kotun , whom I credit, establishes that Banyai paused during his talk in order that his statements could be interpreted to the Polish employees, that this was done, and that the purpose of the authorization cards was explained to them before they signed them. With respect to Boler's card , Mabel Brigmon, an employee of Junior Sportswear, testified credibly that she rode to and from work with a person whom she called "Al"; that she did not know his last name; that he worked for the Respondent; that she had known him "for quite a while"; that one of the Respondent's female em- ployees asked her to give "Al" a blank authorization card "because he wanted one"; that she gave the card to Al; that at sometime before the second meeting of the Union ( March 10 ) Al returned the card to her completely filled out; that he told her at the time to give the card to Rhatigan because he could not attend the meet- ing; and that she gave the card to Rhatigan at the second union meeting. Brigmon identified the card of Albert Boler , dated March 8, 1965 , as the card in question. In its brief the Respondent points out that Boler's card does not have a receipt stamp of the Board on its reverse side , and that all of the other cards have such stamps, dated March 11. The Respondent argues that "apparently" the card was not received at the second union meeting because of the above and also because Banyai testified that he counted 26 cards at that meeting . However, Banyai further testified, "We had at least 26. Maybe more." 34 The absence of the Board 's receipt stamp on Boler's card serves only to put in question the date that Boler signed the card. In view of Brigmon's uncontradicted testimony, I find that Boler signed the card on the date noted, and that it counts as a valid card. Constance Woodruff, a representative of the Union , testified without contradic- tion that at the second union meeting Tolar borrowed her pen in order to fill out an authorization card , that she watched him as he filled out the card , and that he gave it to her. The card is dated March 9. Woodruff was unable to explain why it was not dated March 10. Employee Alice Wright testified to the effect that a few days after the first union meeting she solicited Tolar to sign a union card; that when he said he was interested in the Union , she gave him a card; that he returned the card to her the following day; and that she never turned it over to the Union The Respondent contends that Tolar's card cannot be counted because of "these explicable circumstances ." Since Woodruff identified the card in question , the Re- spondent's contention is rejected I find that it counts as a valid card. The undisputed evidence in the case shows that Albert Mastrioni at all times material herein was a member in good standing of the Union. In my opinion, this fact raises the presumption that Mastrioni authorized the Union to represent him for the purposes of collective bargaining. However, aside from the question of the validity of Mastrioni's designation , the evidence shows that 27 employees out of 49 in the appropriate unit signed cards on or before March 10. Accordingly, I find that on and after March 10 the Union represented a majority of the employees. In its brief the Respondent contends that Kotun's signing of the antiunion peti- tion "amounts to a revocation of her card ." The evidence shows that other em- ployees who signed union cards, such as Dixon , also signed the petitions. I find that any defections from the Union 's ranks did not affect its majority, since such pos- sible defections were caused by the Respondent 's unfair labor practices. In its letter of March 11 the Union notified the Respondent that it had been desig- nated as the collective-bargaining representative by a majority of the employees, requested recognition , and demanded that the Respondent meet with it in order to negotiate a contract. When Avellino spoke to Banyai on March 12 , he questioned neither the unit nor the majority. Although Banyai repeated the Union 's demands for recognition and bargaining and offered to prove the majority by showing Avellino the designation cards, Avellino 's only answer was that he would consider recognition of the Union only if it provided him with a union jobber . He did not answer Banyai 's suggestion that he agree to a consent election. Avellino gave substantially the same answer to Banyai 's demands when they met on March 17. However, at this meeting he questioned the Union 's majority and claimed that the employees signed the union cards in order to get a "duck dinner." That Avellino 44 Including Hobson's card, there are 27 cards with the Board 's receipt stamp 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not have a good-faith doubt on the majority question is indicated since at the close of the conversation he in effect offered to recognize the Union when he told Banyai, "Well, you give me a union jobber with a registration and I'll run the best union shop on Long Island." In conclusion, the evidence shows that on and after March 12 the Respondent refused to recognize and bargain with the Union ; and that starting on March 10 the Respondent engaged in conduct which has been found above to be violative of Section 8 (a)(1) of the Act . These unfair labor practices negate the Respondent's claim of good faith and manifest an effort to undermine the Union 's majority. Accordingly, I find that the Respondent's refusal to recognize and bargain with the Union on and after March 12, 1965, was violative of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- nection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic , and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent has refused to bargain with the Union in violation of Section 8(a)(5) and ( 1) of the Act, it will be recommended that the Respondent be ordered to bargain with the Union upon request as the exclusive rep- resentative of all of its employees in the appropriate unit concerning rates of pay, wages, hours, and other terms and conditions of employment , and if understandings are reached, embody such understandings in a signed agreement. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act , the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 3. All production and maintenance employees of Respondent , exclusive of office clerical employees. guards, and all supervisors as defined in the Act , constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 ( b) of the Act. 4. The Union has been at all times on and after March 10 , 1965, the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 ( a) of the Act. 5. By refusing at all times on and after March 12, 1965, to recognize and bargain collectively with the Union as the exclusive representative of its employees in the aforestated appropriate unit, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and ( 1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and ( 7) of the Act. 7. The General Counsel has failed to sustain the burden of proving that the lay- offs of Kozak, Gaines, Kotun, and Adair and the layoff and discharge of Mayo were violative of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, and conclusions of law and upon the entire record in the case , I recommend that the Respondent, its officers, agents, successors and assigns , shall be ordered to: 1. Cease and desist from: (a) Interrogating its employees concerning their membership in or activities on behalf of the Union or making threats of reprisal because of such activity. (b) Engaging in or creating the impression of surveillance of the union activity of its employees. RIVER TOGS, INC. 79 (c) Refusing to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment with the Union as the exclusive representative of its employees in the appropriate unit found above. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreeement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request bargain collectively with the Union as the exclusive representa- tive of the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and embody in a signed agreement any understandings reached. (b) Preserve and, upon request, make available to the National Labor Relations Board or its agents for examination and copying, all records necessary for the deter- mination of the amount of backpay due under these recommendations. (c) Post at its plant in Riverhead, New York, copies of the attached notice marked "Appendix." 35 Copies of said notice, to be furnished by the Regional Director for Region 29, after being duly signed by the Respondent or its authorized representa- tives, shall be posted by Respondent immediately upon receipt thereof and main- tained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Region Director for Region 29, in writing, within 20 days from the date of the receipt of this Decision, what steps it has taken to comply herewith.36 IT IS ALSO RECOMMENDED that the complaint be dismissed insofar as it relates to the layoffs of Kozak, Gaines, Kotun, and Adair and to the layoff and discharge of Mayo. 31 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 38 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recomended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate our employees concerning their membership in or activities on behalf of Local 107, International Ladies' Garment Workers' Union, AFL-CIO, or of any other labor organization, or make threats of reprisal because of such activity. WE WILL NOT engage in or create the impression of surveillance of the union activity of our employees. WE WILL, upon request, bargain collectively with the above-named labor organization as the exclusive bargaining representative of all employees in the following unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and if understandings are reached, embody such understandings in a signed agreement . The bargaining unit is: All production and maintenance employees, exclusive of office clerical employees, guards, and all supervisors as defined in the Act. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization , to form labor or- ganizations, to join or assist Local 107, International Ladies' Garment Workers' Union, AFL-CIO, or of any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or mutual aid or protection , or to re- frain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become , remain, or refrain from becoming or re- maining members of any labor organization. RIVER TOGS, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board 's Regional Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11201, Telephone 596-5386. Purolator Products, Inc. (Van Nuys Plant ) and International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America, AFL-CIO Purolator Products, Inc. and International Union , United Auto- mobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO and Independent Employees Association of Purolator Products, Inc., Party in Interest. Cases 31-CA-10 (forrnerly 21-CA-5698) and 20 (formerly 01-CA-6108). July 5, 1966 DECISION, ORDER, AND DIRECTION OF ELECTION On May 6, 1965, Trial Examiner Eugene K. Kennedy issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision. The National Labor Relations Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in these cases, including the Trial Exam- iner's Decision, and the exceptions thereto, and hereby adopts the 160 NLRB No. 9.