Acacio Guerra

64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Acacio Guerra, Individually : Columbia Casuals, Inc. and Upstate New York & Vermont District Council, International Ladies' Garment Workers' Union, AFL-CIO. Case I-CA-6305 January 9, 1969 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA Vermont, its officers, agents, successors, and assigns, and Acacio Guerra, as an individual, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: Delete the address and telephone number of the Board's Regional Office at the end of the appendix, and substitute therefor the following address and telephone number: 20th Floor, John F. Kennedy Federal Building, Cambridge & Sudbury Streets, Boston, Massachusetts 02203, Telephone 223-3300. On September 4, 1968, Trial Examiner Henry L. Jalette issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of these allegations. Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. 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. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and hereby orders that the Respondent, Columbia Casuals, Inc., Newport, 'At the hearing, the General Counsel moved to have Acacio Guerra, the principal owner, officer, and director of the Respondent, take the stand and testify by invoking Rule 43(b) of the Federal Rules of Civil Procedure. The Trial Examiner denied the motion at that time on the ground that the attorney for the Respondent did not have sufficient opportunity to consult with his client We find merit in the General Counsel's exception to such ruling. However, except for the allegation of discriminatory discharge as to employee Carter, the Trial Examiner found most of the violations alleged by the General Counsel As Guerra testified and was cross-examined by the General Counsel with respect to employee Carter and the Trial Examiner credited the testimony of Guerra and concluded that Carter was discharged for insubordination, there appears no basis for inferring that earlier examination of Guerra under Rule 43(b) would have affected the conclusion reached as to Carter. Accordingly, we conclude that this ruling was not prejudicial in this case Cf. Film Inspection Service, Inc., 144 NLRB 1040, 1041, at fn. 1 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Trial Examiner. This case was tried in Newport, Vermont, on July 9, 10, and 22, 1968,' pursuant to a charge, filed on April 12, and amended on May 21, by the Upstate New York and Vermont District Council, International Ladies' Garment Workers' Union, AFL-CIO, herein called the Union, and pursuant to a complaint issued on June 13, and amended at trial. The issues presented are whether Acacio Guerra, Individually, and Columbia Casuals, Inc„ herein referred to jointly as Respondent, violated Section 8(a)(1) of the National Labor Relations Act, as amended, by interrogating employees and threatening them with plant closure if they selected the Union to represent them, by promulgating and enforcing a broad no-solicitation rule, and by harassing employees and assigning them onerous duties, and Section 8(a)(3) and (1) by discharging three employees. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and the Respondent, I make the following:, FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is engaged in the manufacture, sale and distribution of dresses and related products from its principal office and place of business at 32 Central Street, Newport, Vermont. During the calendar year 1967, Respondent in the course and conduct of its business shipped directly to points located outside the State of Vermont products valued in excess of $50,000. Guerra is the principal owner, officer and director of Respondent. Upon these admitted facts, I find that Guerra and Respondent are, and have been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. On the basis of the evidence adduced at the trial, I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Interrogation The Union's campaign to organize the employees of Respondent began on or about March 12. On that day, 'Unless otherwise indicated, all dates refer to the year 1968. iRespondent's Motion to Dismiss made at the close of the trial, on which I reserved ruling, is disposed of in accordance with the findings and conclusions herein 174 NLRB No. 13 COLUMBIA CASUALS, INC. Union Representative Peter Grassadonia visited the home of Celesta Britch to solicit her membership and support. According to Britch, a day or two later, Guerra approached her at her machine and asked her if she had heard that the Union was trying to organize his shop. Britch replied that she had, that the Union organizer had approached her. Guerra asked her if she had signed a card and when she replied that she had, he asked her if she could withdraw it. Britch replied that she'd rather not. Guerra asked her if she knew whether other employees had signed cards and Britch replied she did not. (At the time of this conversation, Britch was an employee of Respondent; however, in early March, she had been asked to manage Guerra Garments, another of Guerra's operations which was to be located in the same building as Respondent's operation. She had assumed the position of manager by March 22.) On or about March 18, Guerra asked employee Katherine Santaw if she had signed a union card and she replied that she had. Either that same day or a few days thereafter, as Santaw was leaving the shop, Guerra called her back in and asked her if she would consider withdrawing her card and Santaw refused. Santaw testified that she also overheard Guerra interrogate employee Litchfield. On March 22, Guerra remarked to Dalmita Carter, "I suppose you are one of the ones who signed a Union card," and Carter replied, "Yes, and I am damn glad of it." Guerra's testimony as to these conversations was as follows: Q. Now, tell me, did you ever question them as to why the[y] want the Union or anything about the Union, or did you ever look to restrain them or interfere with their rights as workers? A. No I didn't interfere with their rights as, workers .... Such testimony is wholly insufficient to be accepted as a denial of the testimony of Santaw and Carter. Inasmuch as I find that Santaw and Carter testified credibly, I further find that their interrogation, occurring in the context of other unfair labor practices found herein, was violative of Section 8(a)(1) of the Act. As to his conversation with Britch, Guerra testified that it was she who telephoned to inform him of Grassadonia's visit to her home, and to advise him that as she was going to be a manager, she had no use for the Union and that if Grassadonia bothered her again, she would get in touch with the police. I do not credit Guerra. Throughout his testimony, I was not impressed by his demeanor on the witness stand. He was evasive, vague, wholly indifferent to details, and frequently his answers were not responsive. Moreover, it is illogical to me that Britch would have reported to Guerra as he testified and that she would have expressed opposition to the Union when it is undisputed that she thereafter arranged a meeting between Guerra and Union representative Berger. Although Britch is alleged to have stated she would contact the police if she was bothered by the Union, there is no evidence that she did. The fact of the matter is that Guerra contacted the police. Finally, I was impressed by Britch's demeanor. She appeared to me to be frank and completely candid in answering questions. As manager of Guerra's new 65 operation, Britch would have had no interest in fabricating testimony adverse to Respondent. Accordingly, I find that Guerra interrogated Britch on March 13 or 14 and Respondent thereby violated Section 8(a)(1) of the Act. The testimony of Santaw and Britch also establishes that Guerra unlawfully solicited them to withdraw their authorization cards. Although the complaint did not allege unlawful solicitation, the issue of what Guerra said to Santaw and Britch was fully litigated and I find that Respondent engaged in unlawful solicitation in violation of Section 8(a)(1) of the Act. B. The Alleged Threats of Plant Closure It is undisputed that on three occasions Guerra assembled all the employees in the plant and spoke to them about the Union. Guerra did not testify as to the dates of his speeches, nor did he testify as to what he said at each of them. Instead, he undertook to condense his speeches as follows: Q. Did you ever tell them that if they organized the Union that you would close down the shop? A. No. I had all the girls come together on three occasions and I told them that they have a right to join the Union or they have a right not to join the Union and nobody could threaten them to join the Union or not to join the Union; and I also told them that since I was supplied by a non-union jobber, if they became union, it would be a problem because I didn't know - I don't have a union jobber that was supplying me work, you know, of the equivalent that I have right now - 6, 8's, and 10's there. The foregoing was followed by what appeared to me to be Guerra's explanation of his reasons for acting as he did, rather than testimony as to what he actually told his employees. Employees Loiselle, Santaw, Carter, and Lawson testified to the contents of one or more of the speeches. Employee Carter was present at the first speech only and employee Lawson was present at the first and third speeches. From their testimony, it appears that the speeches were given on March 22, and April 5, and 10. The employees were not in complete agreement as to what was said by Guerra in these speeches. Thus, Santaw testified that on April 5, Guerra spoke about a meeting he had with Union representative Berger and that on April 10, he told the employees to stop talking about the Union. According to Loiselle, it was just the reverse. Employee Lawson also testified about the speech containing the reference to Berger, and since she was not at the plant when Guerra spoke on April 5 (she had left the plant with Carter), her testimony confirms Loiselle's testimony that the reference to Berger occurred in the speech of April 10. The fact that Lawson did not testify about Guerra's statement to stop talking about the Union confirms Loiselle's testimony that the statement was made on April 5, since that is the speech Lawson missed. Accordingly, although the dates on which specific statements were made are not particularly significant (as noted above, Guerra did not even undertake to testify as to any specific speech) I find that Loiselle's and Lawson's testimony is the more accurate and that Santaw was mistaken. The following presentation of the speeches therefore conforms generally to their testimony. On March 22, after first referring to remarks which had been made by his lawyer in another court proceeding, Guerra advised the employees that he had heard of the Union's organizing activities. He indicated that if the 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union could help him out he would be willing to go into the Union. He pointed out, however, that he could not afford higher wages or paid vacations. He told the employees he needed them, and they the work, but that if it came to a point where he couldn't do any more, he would have to close the shop Both Loiselle and Lawson testified credibly that Guerra stated, "if the Union comes in, I will have to close the shop." On April 5, Guerra gave a brief speech in which he told employees to stop talking about the Union, that it was slowing up production, and to concentrate on the work. On April 10, Guerra told the employees that he had met with Union Representative Berger who had offered him a line of cheaper dresses which Guerra had refused to accept. He told the employees that he had asked the Union to guarantee his payroll eleven months of the year and would go Union if it helped him out, that he had too much invested in the job to close. Additionally, Guerra referred to the pressure on him and being pushed, and stated that if the Union put too much pressure on him he would have to close the shop. I find as alleged in the complaint that in his speeches to employees, Guerra threatened to close the plant if they selected the Union to represent them and that Respondent thereby violated Section 8(a)(1) of the Act. Guerra's references to his non-union jobber and to his meeting with Union Representative Berger and his request for an eleven month guarantee are similar to statements of the respondent in River Togs, Inc., which the Board held violative of Section 8(a)(1) of the Act.' Unless there is evidence to support it, Guerra's statement to employees that he had a nonunion jobber who would stop sending him work if his shop became a union shop, thereby forcing the plant to close, cannot be characterized as simply a prediction of the actions of third parties. There is certainly no evidence in this record to justify such a statement, and so long as Respondent was willing to sew garments for its jobber at a mutually agreeable price, I fail to see where the mere selection of a union by the employees called for the results described by Guerra to his employees.4 In any event, I find that Guerra did more than refer to his nonunion jobber. Rather, I find that he enlarged on that theme and stated that if the Union came in, he would close the plant. In this connection, I have weighed the possibility that in testifying that Guerra stated if the Union came in, he would close the plant, employees were substituting their subjective interpretation of his remarks about his nonunion jobber. In finding this not to be the case, I have noted Lawson's explicit testimony on cross-examination that Guerra said both- that he would have to 'close the doors because the Union came in and that he would have to close the doors because his non-union jobber would not give him any more work. Moreover, the consistency in the testimony of Santaw, Loiselle and Lawson that Guerra stated if the Union pushed too hard or put too much pressure on him, he would have to close the shop, persuades me that Guerra did not restrict himself to the non-union jobber statement. 1168 NLRB No, 58, enforcement denied on this point 382 F.2d 198 (C A. 2). 'There is really a fundamental error in Guerra's understanding of the Section 7 rights of employees, and this error governed his conduct and statements The error is his belief that he will accept a union if it helps him - in that sense, Guerra might be said not to be opposed to unions - but Section 7 gives employees the right to make that decision. C. The No-Solicitation Rule In the latter part of March or the first part of April, a notice was posted on the wall above the time clock which stated: NO SOLICITING OF ANY KIND ON THE PREMISES THANK YOU SONNY BOY p.s. That includes you Roland The notice remained posted for approximately 2 weeks. The record does not indicate who removed it, but it was not Guerra. Although admitting that something had been posted, and although he had admitted in his answer that Respondent had posted a notice that there was to be no solicitation of any kind on its premises , Guerra refused to identify the notice when it was shown to him by General Counsel. Based on the admission in Respondent's answer and the testimony of employee Lawson , I find that in the latter part of March or the first part of April , Respondent posted a notice prohibiting solicitation on Company premises . Inasmuch as the rule prohibited solicitation by employees on Company premises during their nonworking time, it was presumptively unlawful . Walton Manufacturing Company, 126 NLRB 697, enfd . 289 F.2d 177 (C.A. 5). Although Respondent contends that the prohibition was directed only against union activity during work time, the evidence is to the contrary . Not only did the notice fail to express such a limitation , but also in his speech on April 5 Guerra told employees to stop talking about the Union and he did not indicate to them that his statement applied only to work time. Moreover, employee Lawson credibly testified, without denial by Guerra, that on April 16 she was asked by Guerra whether or not she had been talking to the girls on the premises, and when she replied that she had and that it had been for the purpose of inviting them to a social party, Guerra stated that those had not been her intentions, that she was not to talk to the girls up front any more, adding, "if you must talk to someone, talk to Berger." Guerra expressly stated that the prohibition covered coffee breaks and that he could work Lawson during her coffee break if he wanted to. Accordingly, I find that the rule was intended to prohibit solicitation on employees ' nonwork time. Even were I to accept Respondent's contention that it intended the rule to apply only to working time , I would nevertheless hold that the promulgation of the rule was unlawful as the promulgation of an unlawfully phrased rule has an inhibitory effect upon employees' exercise of their statutory rights regardless of innocence of purpose for the rule or the undisclosed limitations placed upon its use and application. Pueblo Supermarkets , Inc., 156 NLRB 654. Respondent does not contend in its brief that the rule was necessary to maintain production , nor is there evidence to support a finding to that effect . Since Guerra had made references to interference with production, I specifically asked him for examples . His only reply was that he had heard that some people were upset. Even there he did not testify that employees were upset because solicitors were interfering with their work performance ; rather, he gave as an example an inquiry by the husband of an employee as to whether his wife had to join the Union. Such testimony is insufficient to overcome the presumption of invalidity applicable to a broad no-solicitation rule Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 621. COLUMBIA CASUALS, INC. Accordingly, I find that by the promulgation of the rule, Guerra's statement to employees in the speech of April 5 or 10,. and his statement to employee Lawson on April 16, Respondent violated Section 8 (a)(1) of the Act. D. The Alleged Discriminatory Discharge of Gladys Lawson and Alvina Loiselle on March 22 Gladys Lawson started working for Respondent in August, 1965, as a sewing machine operator and was considered by Guerra to be one of his best operators although not as productive as he would have liked. On March 20, Lawson signed a union authorization card which had been given to her by Loiselle the day before at the shop. That same night, she met with Union Representative Grassadoma at her home and thereafter she became a member of the organizing committee. On March 22, at about 12.45 p.m., Guerra called Lawson from her machine to the front of the shop and told her "Mrs. Lawson, I am discharging you." Lawson asked "Right now?" Guerra replied "Yes, right now." Lawson remarked "Well then, I can draw my compensation" and Guerra said "I would rather pay your compensation than to have you in the shop." He told her that he hoped she would be happy with employment elsewhere, and gave her two pay checks, plus a white slip indicating her separation was for lack of available work. On April 1, Lawson was recalled to work and was working for Respondent at the time of the hearing. Loiselle has been employed by Respondent over 2 years as a stitcher. On March 19, she signed a union card at her home where she had been visited by Union Respresentative Grassadonia. Thereafter, she became a member of the organizing committee and she solicited other employees to sign authorization cards. About 5:45 p.m. on March 22, Loiselle received a call from Guerra who stated that he had watched her work that day and that she had not done enough work. He then told her he did not want to see her in the shop again. Guerra also told Loiselle to advise her sister-in-law, Mrs. Corneau, not to come in on Monday. Celesta Britch, who was then manager of Guerra's new operation, Guerra Garments, testified that after work one Friday afternoon Guerra came to her in the basement where the new operation was located and told her he had discharged three girls - Gladys Lawson, Josephine Corneau, and Alvina Loiselle. He said that he had given them white slips of paper for lack of work, but that he had to get rid of them because of the disturbances they were causing in the shop with their union activities; i.e., getting the girls to sign cards. The following day, Guerra telephoned Britch and told her to contact the Unemployment Office and to request that the three girls named above be sent to Guerra Garments, to keep them 2 or 3 days, and find some reason to get rid of them. On Monday, March 25, Britch told Guerra she had not called the Unemployment Office and was not going to discharge the girls, and that she felt it was his duty to recall them. Guerra said "All right." On Tuesday, March 26, Loiselle went to the plant and asked Guerra for her unemployment slip and her check. Guerra asked her what slip she was talking about and when she told him her unemployment slip he told her that she had not been fired. When Loiselle asked about the phone conversation Guerra said "Oh no. This is just because I was short of collars and said the work will be coming in and I will call you back in." 67 On March 28, Guerra called Loiselle to come back to work, stating, "I called Unemployment and asked them for somebody to come into work, and they told me to call you back." Guerra denied that he had discharged Lawson and Loiselle on March 22 and testified that he just laid them off for lack of work. I do not credit his testimony and find that he discharged them. Guerra did not deny the statements attributed to him by Loiselle and Lawson. In Lawson's case, she testified credibly that Guerra said he was discharging her, and the fact that he gave her two pay checks is evidence of a discharge action. See Liberty Coach Company, Inc, 128 NLRB 160, 163. When Carter was discharged, she received two pay checks, and Guerra testified that he understood that when he discharged an employee he was required to pay them. In Loiselle's case, while Guerra did not use the word discharge, the only reasonable construction of his statements to her when he called was that he was discharging her. Furthermore, Guerra's statement to Loiselle on March 28 that he had called Unemployment and asked them for somebody to come into work, and that they had told him to call Loiselle back is indicative of a discharge. The fact that Lawson and Loiselle were recalled to work and were only temporarily unemployed, and the lack of work notation on their unemployment slips are factors which I deem insufficient to overcome the evidence of Guerra's own statements and actions Although I find that Lawson and Loiselle were discharged on March 22, and not laid off, it does not necessarily follow that the discharges were motivated by their union activities. However, the fact that they were discharged is a factor to be considered in weighing Respondent's motive: employees are not usually discharged because of a temporary lack of work. I reject Respondent's assertion that Lawson and Loiselle's unemployment was attributable to a lack of work. Not only was no evidence submitted in support of the assertion, but also, there is evidence that Respondent did not conform to its layoff practice when there is no work available. Forelady Keement,5 testifying on behalf of Respondent, stated it was not customary to lay off people in the middle of the day.' Yet this was done in Lawson's case. The employees testified it was not customary to lay off only one of a group of employees engaged on the same work; e.g., if one dart girl was laid off, all dart girls were laid off. Forelady Keement's testimony substantiates them, and the layoff of Loiselle, McNeil and Willis on May 6 exemplifies the practice. Yet, there is no showing that other employees doing the same work as Loiselle and Lawson (who did different work) were also laid off on March 22. (Keement's reply to a question by counsel for Respondent suggests that McNeil and Willis were laid off with Loiselle on March 22. A reading of Keement's entire testimony and the entire record indicates that the correct date of that layoff was May 6.) Since it was not Respondent's practice to select individual employees for layoff when there was no work available, I consider Guerra's testimony that Loiselle was 'The complaint alleges, and Respondent denies, that Keement is a supervisor within the meaning of the Act. I find that General Counsel failed to establish that Keement is a supervisor 'There is evidence of a mid-day layoff on May 10, but that included the entire shop 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not a good worker irrelevant. Loiselle had been employed over 2 years and there is no evidence that she had been selected for layoff on prior occasions because of any alleged deficiencies in her work performance. Nor can I accept Guerra's explanation that he selected Lawson for layoff because she had complained about her wages. It appears to me that if her complaint had any bearing on her selection, it was because Guerra identified it in his own mind with her union activities. At the time Guerra claims he was only laying off Loiselle and Lawson because of a lack of work, there was an advertisement in the Newport News, placed by Guerra himself, for experienced sewing machine operators for employment by Guerra Garments. There is no allegation that either Guerra or Guerra Garments discriminated against Loiselle and Lawson by not offering them employment, but in analyzing Guerra's conduct and determining his motives his failure to offer them such employment is a factor entitled to some weight. The timing of the discharges is another factor to be considered. Lawson and Loiselle had signed cards 2 and 3 days, respectively, before they were discharged. The day of the discharges Guerra had told the employees of his awareness of the Union's organizational campaign and that he would close the shop if the Union came in. Respondent contends that it had no knowledge that Lawson and Loiselle had signed cards. Whether or not Respondent knew they had signed cards, at the very least the evidence in the record supports a finding that Respondent knew that they were Union supporters and were engaged in activities on the Union's behalf. Both Lawson and Loiselle testified to their union activities and they were members of the organizing committee. Guerra had interrogated Britch, Santaw and Litchfield, and, according to his own testimony, Britch had told him about Lawson. In one of his speeches, he had remarked that he knew of 35 girls who had not signed cards. Finally, there is the testimony of Celesta Britch that Guerra told her he had discharged Lawson and Loiselle because of their union activities.' Guerra's only testimony on this point was the following. Q. Did you ever say to Mrs. Britch that you were going to let some operators go because of their union activities? A. I think they are Mrs Corneau and Mrs. Loiselle and Mrs. Lawson there. I just laid those people off.... It is evident that Guerra's answer was not responsive to his counsel's question, and that Britch's testimony stands undenied. In summary, considering the fact that the discharges occurred almost at the outset of the organizing campaign, on the same day of a speech to the employees demonstrating Respondent's animus against the Union, the absence of evidence of a lack of work, and Britch's credited testimony as to the reasons for the discharges, I find that Respondent discharged Loiselle and Lawson on March 22 because of their union activities and thereby 'Although the phrase used was ".. because of their disturbances they were causing in the shop in the Union activities ," Respondent is not contending that Lawson and Loiselle were discharged for engaging in unprotected activity . Guerra stated that Lawson discussed the Union on Company time, but disclaimed any reliance on such conduct as a reason for discharge. Guerra's remark to Britch also embraced Josephine Corneau who is not alleged as a discriminatee The record indicates, however, that Corneau went to work on Monday, March 25, despite having been notified she was discharged by Loiselle pursuant to instructions from Guerra, and that she thereafter worked for Guerra Garments violated Section 8(a)(3) and (1) of the Act. E The Alleged Discriminatory Discharge of Alvina Loiselle on May 10 As indicated earlier, Loiselle was recalled to work by Guerra on March 28. On Monday, May 6, she, McNeil and Willis were told by Forelady Keement not to come to work the following day because of a lack of work, but to call her before returning. On Tuesday afternoon, Loiselle went to the shop where she learned from employees that no one was working on Wednesday, but that everyone was going back on Thursday. (Keement places the foregoing events one day later than Loiselle. From my observation of Keement at the hearing, while she appeared to be a truthful witness, she was inattentive to the questions and careless in answering. In view of the discrepancies between her testimony on direct and on my examination, I have accepted the description of events given by Loiselle.) Loiselle worked without incident Thursday and Friday until noon, when Keement told everyone there was no work that afternoon. While Loiselle was waiting to leave she heard Guerra remark to Keement,' "I told you - I told you to tell her to stay home." Keement replied, "Yes, but you told me that everybody was coming back to work Thursday." Guerra then said to Loiselle, "You are not good to me anyway, you are not a stitcher; and when I tell you to stay home, stay home." Loiselle remarked that was not the reason he was firing her and Guerra stated again, "You are no good and you go home and stay there." Guerra told her to tell Unemployment she was fired. On Monday afternoon, Loiselle went to get her white slip and her check, and when she asked Keement for them, Keement said she was not fired and that Guerra wanted her to return to work the following morning, which she did. Guerra denied that he fired Loiselle on May 10 or that he even laid her off. According to him, he merely told her that McNeil and Willis had called in after their layoff on May 6 and reminded her that she had not and that she was not to take advantage of his forelady. His explanation for Loiselle's absence the following Monday was that she was voluntarily absent without notice. Keement was not specifically examined about the conversation between Loiselle and Guerra, although she was present, and the extent of her testimony on this point was a statement that Guerra did not fire Loiselle, nor tell her to go home for lack of work. I credit Loiselle. Respondent admitted in its answer that Loiselle had been laid off, and it is undisputed that Loiselle did not report to work on Monday. The record establishes that Loiselle certainly believed she had been fired and I cannot believe she fabricated or imagined the whole incident with Guerra. She had evidently told her sister-in-law Corneau that she had been fired, because Guerra testified Corneau asked Keement why Loiselle had been fired. Keement also testified that Loiselle thought she had been fired and Keement told her, "No, he told me to have you go to work." If Loiselle had neither been fired nor laid off, there was no need for such an instruction. Whether or not Guerra's remarks to Loiselle on May 10 constituted a discharge or layoff is immaterial. In either event, she lost one day of employment. If it was a layoff, as pleaded in the answer, there was no evidence that there was a lack of work or of the reason for singling out Loiselle contrary to the layoff practice described COLUMBIA CASUALS, INC. earlier. In the final analysis, Respondent's conduct vis-a-vis Loiselle on May 10 must be evaluated in the light of its earlier conduct. I have already found that Guerra fired Loiselle on March 22 and disclaimed having done so. I have found that his motive on that occasion was her union activities. Loiselle had continued those activities after her recall to work and she had been named as discriminatee in the charge filed on April 12. In the light of this background, and the total absence of any evidence to support a finding that there was a lack of work, I find that Loiselle's discharge or layoff was motivated by Loiselle's union activities and that Respondent thereby violated Section 8(a)(3) and (1) of the Act. F. The Alleged Harassment and Discriminatory Discharge of Dalmita Carter Dalmita Carter had been employed by Respondent since about April 1966. She received a union authorization card from employee Lawson in the plant on March 19 which she signed and returned on March 20. On March 22, after working hours, while waiting for her husband to pick her up, Carter made a casual remark to Guerra about politics and Guerra said that he did not have any time for politics that he had enough trouble in the factory as it was. As he walked away from Carter, he said, "I suppose you are one of the ones who signed a union card." Carter replied that she was and that she was damn glad of it. Guerra then said, "The Union won't get in any more." Carter was active in soliciting other employees to sign cards and she was one of five employees on the organizing committee. On April 3, at the front entrance to the plant, while sitting in a car with an unidentified woman and employees Loiselle and Lawson, Carter solicited employee McNeil to sign a card. In order for McNeil to sign, Carter had to get out of the car, and McNeil sat where Carter had been sitting and signed a card on the dashboard Guerra was across the street during this incident in a position to observe what occurred. He denied ever having seen a union card or having seen anyone sign one. I do not credit him. The card signing, as described by Carter, occurred in such a way that Guerra could not have helped knowing what was happening. I am convinced, not only from this incident, but from all the evidence in the record, that Guerra knew of Carter's union activities. According to Carter, after she had clocked out on April 4, Guerra hollered at her and told her she was laid off. Carter told him that he couldn't lay her off and to lay her off on his time, not her time, not as she was clocked out and was going home. Outside the plant, Carter met Grassadonia and told him what had just happened, and he advised her to go in to work. While she was talking to him, Forelady Keement came up to her and told her that she had a message to deliver from Guerra to the effect that she was laid off until Monday. Carter told Keement she had no authority to lay her off as she was one of the hired help like Carter. Keement replied that she was just referring a message from Guerra and she left. On Friday, April 5, Carter reported to work at 7 a.m. as usual. At 8 a.m., Guerra came to her machine and told her she was fired and to get out of the plant that a check and unemployment slip were at the time clock. Carter gathered her things and walked to the front of the factory where she looked for her timecard to punch out. Guerra told her he had punched her out and to get out before he called the police. Carter asked him for a reason for the 69 discharge and Guerra replied that he did not have to give a reason. He pointed to the unemployment slip and stated that the reason was on there, which was not true. Guerra told Carter he was going to call the police and walked to the telephone to call. Carter asked him if he needed a dime and said she had done nothing wrong and all she wanted was a reason for being laid off since there was plenty of work. While she was standing there, employee Lawson came over and inquired as to what was happening and was told by Carter that Guerra had fired her. Lawson stated that she felt sick to her stomach and thought she would go home. She advised Carter to pick up her check and unemployment slip and to leave. Carter picked up two checks and left with Lawson. According to Carter, after she signed a card, and until her discharge on April 5, she was "treated like a dog - worse than a dog." When asked to describe what was done to her, she gave as examples that the man - presumably Guerra - would come past her and throw dresses, which he had not done before. He would pull a dress from her sewing machine before she was through sewing it. On one occasion, one Barber (who appears to be Guerra's brother-in-law but who is not alleged to be a supervisor or agent of Respondent) pulled a dress and caused Carter to run a needle through her finger. Barber would stand continuously in front of her, beside her, or in back of her until she was just a nervous wreck. Guerra would tell Carter to stop talking when she was not. One of two sewing machines Carter worked on did not work properly and Guerra did not repair it. For the first time, she had to do another employee's repair work. The foregoing, insofar as it describes the confrontations between Carter and Guerra on April 4 and 5, is essentially undisputed. The harassment is denied. In this instance, Respondent does not dispute that it discharged Carter, contending, however, that the reason was Carter's insubordination in coming to work on Friday, April 5, despite explicit instructions that she was not to come in until Monday. General Counsel contends that the alleged insubordination was a pretext and that Respondent's true motive was Carter's union activities. It is not clear whether General Counsel contends that Carter was not insubordinate or that, conceding insubordination, it was not the moving cause for her discharge. I find that Carter was clearly insubordinate. Her retort on the afternoon of April 4 when Guerra told her she was laid off until Monday was not called for by any of the circumstances described in the record. Such unwonted belligerence cannot be denominated as other than insubordination, and Carter's reporting to work on April 5 and working for one hour contrary to explicit notice that she was laid off was merely an extension of the insubordination begun on the preceding afternoon. General Counsel does not contend, nor does the record support a finding, either that Carter was provoked into her outburst or that Respondent discriminated against her by laying her off on April 4. I have considered the evidence in support of the allegation of harassment to determine the possibility that Carter had been provoked. However, testimony that Carter was treated like a dog has no evidentiary value, and the examples of abusive treatment in the record are too general as to time and frequency to support a finding of harassment. Significant in this regard is the reliance on the alleged conduct of Barber who is not shown to be either a supervisor or agent of Respondent, nor to have been executing instructions of Guerra. Moreover, Carter's 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD feelings of harassment may have been more fancied than real. For example, while both Carter and Britch named Loiselle as a victim of the dress pulling, Loiselle herself complained of no such treatment in her testimony. Britch admitted that conduct of the type described as harassment was directed to different girls, at different times, if it was a girl Guerra did not like and that this had happened even before any union activities. Analysis of the record also indicates that there is insufficient evidence to support a finding that Guerra was discriminating against Carter by laying her off. According to Guerra and Keement, on April 4 there were not enough "closings", the type of work performed by Carter. True, there were 4 closers, but Guerra testified Carter was not skilled at some closings , and General Counsel offered no evidence to the contrary. As described earlier, the layoff practice was not to select one employee of a group where there was a lack of work, but to lay off all those doing similar work, and relative skills were generally not considered. It appears, however, that differences among the closers did exist and were relevant in certain situations. At least, there is no contention by General Counsel that they were not relevant in the situation here in question. Finally, although Carter testified there was plenty of work for her to do, I note that she completed the work in her bin on April 5 in 1 hour, lending credence to Guerra's testimony that he laid her off on April 4 because he did not want her to travel 10 to 12 miles on Friday to come to work for 2 hours. The issue, in the Carter case, then, is whether or not her insubordination was used by Respondent as a pretext to discharge her for her union activities. To support a finding to that effect, General Counsel adverts to the fact that Respondent has no rules in regard to discharges. The simple answer is that a rule that insubordination is ground for discharge is not necessary. He compares Carter's conduct to that of Corneau who had been told on March 22 by Loiselle, pursuant to Guerra' s instructions, that she was not to report to work the following Monday and who, nevertheless, reported. Corneau did not testify, and for all that appears in the record, before the start of work on the Monday in question, she could have spoken to Guerra and been told to report to work. I note that Corneau went to work for Guerra Garments, rather than for Respondent. On this record, a finding that Corneau was insubordinate and treated differently from Carter is unwarranted. General Counsel also compares Loiselle's conduct in returning to work on May 9 without calling her forelady as an instance of insubordination which was not punished by discharge. The difference between her case and Carter's is too apparent to require elaboration. General Counsel submits that the inconsistencies in Guerra's testimony demonstrate that his true motive in discharging Carter was her union activities. I have indicated throughout this decision the several respects in which I could not credit the testimony of Guerra, including finding the discriminatory discharge of Loiselle and Lawson. However, there are different considerations in the Carter case Thus, while the evidence did not support Guerra's assertion that there was a lack of work for Loiselle and Lawson, the evidence does support his assertion that Carter was insubordinate. Contrary to the contention of General Counsel, Guerra steadfastly asserted that his reason for discharging Carter was her insubordination. Although Guerra referred to Carter's alleged poor work and bad attitude, I do not find that he relied thereon as grounds for discharge. While the answer to the complaint does plead that the discharge was for inefficiency and for failure to obey orders, I do not deem the pleading, without more, sufficient to warrant a finding that Respondent has taken inconsistent positions which warrant an inference that Carter was discharged for discriminatory reasons. The most troublesome evidence tending to support the General Counsel's contention is the testimony of Britch that he told her on March 22 not only that he had discharged three girls because of their union activities, but also that he had one more girl that he was going to let go and that was Dalmita Carter, because she was causing a commotion with her union activities For reasons given earlier, I have credited Britch and I credit her testimony that Guerra made such a statement to her on March 22. However, there is no evidence that Guerra undertook to implement this statement by any actions directed against Carter Rather, granted the finding that Guerra was not unlawfully motivated in notifying her she was laid off, it was Carter who set into motion the incident which triggered her discharge Participation in union activities does not insulate an employee from discharge for cause. On balance, I do not believe that there is a preponderence of evidence to support a finding that Respondent's true motive in discharging Carter was her union activities and not her insubordination. G. The Alleged Harassment of Employees At the trial General Counsel moved to amend the complaint to allege that, since in or about the months of March and April 1968, the Respondent had harassed and assigned onerous duties to employees because they joined or gave assistance and support to the Union. In support of this allegation the General Counsel adduced evidence relating to the harassment of employees Lawson, and Carter. The alleged harassment of Carter was described above and I have found the evidence insufficient to support a finding of a violation of the Act. In the case of Lawson , she testified that on or about April 4 she was given a new assignment consisting in stitching through the middle part of a zipper for a period of 6 hours. This was described as arduous work which she was required to do for a period of 6 hours. She was not required to perform this operation at any time thereafter. Guerra testified that on occasion the zippers supplied by the manufacturer are too long and it then becomes necessary to do the operation described by Lawson. Lawson admitted that she normally worked on zippers and that on the day in question the zippers extended beyond the notch in the dress.' Moreover, she has not been required to perform this operation at any time since. I find that the General Counsel has failed to establish by a preponderance of evidence that the zipper assignment constituted the assignment of a more arduous duty in violation of Section 8(a)(1) of the Act Lawson testified that on April 4, Guerra told her 2 or 3 times that she would have to put out more production, that hei work was not satisfactory. On April 16, she was threatened with discharge unless she increased her production. On April 17, she was told that she was expected to produce 17 collar facings per hour on what she testified were complicated dresses. On April 18 she was told that she was expected to sew 17 zippers per hour. All of these directions were described as new to Lawson's experience and incapable of being complied with. She did not produce as directed, nor was she discharged for failing to do so. Moreover, Lawson admitted that she had not been bothered since April 18 and she is currently doing COLUMBI k CASUALS, INC. the same kind of work she had been doing before. The treatment accorded Lawson differs from that described by Carter. Lawson's description of the harassing conduct was explicit, was not denied, and related to her productivity when she was admittedly one of Guerra's best operators. In the absence of evidence that her productivity had suddenly decreased, and in view of the finding that she had been discriminatorily discharged on March 22, and that much of the harassment occurred after she was named as a discriminatee in the charge filed April 12, I find that the directions to increase production and threat of discharge constituted harassment of Lawson in violation of Section 8(a)(1) of the Act III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with its interstate operations, have a close, intimate, and substantial relation to trade, traffic and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. IV. THE REMEDY Having found that Respondent engaged in unfair labor practices as set forth above, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Respondent having discharged Alvina Loiselle and Gladys Lawson because of their union activities, I shall recommend that Respondent make them whole for any loss of pay they may have suffered by reason of such discrimination by payment to them of a sum of money equal to that which they normally would have received as wages; in the case of Loiselle, from March 22 the date of her discharge to March 29 the date on which she was reinstated, and for the loss of wages she suffered on May 13; in the case of Gladys Lawson, for the period from March 22 to April 1 the date on which she was reinstated. Backpay is to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, with interest at a rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Inasmuch as Loiselle and Lawson have been reinstated, I shall not recommend an order of reinstatement. In view of the nature of the unfair labor practices committed, and the substantial evidence of Respondent's disregard for the Section 7 rights of its employees, in order to prevent the commission of other unfair labor practices, I shall recommend that Respondent be placed under a broad order to cease and desist from in any manner infringing upon the rights of employees guaranteed in Section 7 of the Act. Such order shall be directed not only against Columbia Casuals, Inc., but also against Acacio Guerra, individually.' Upon the foregoing findings of fact, and upon the entire record in this case, I make the following: 'Mount Hope Finishing Company, 106 NLRB 480, 499. CONCLUSIONS OF LAW 71 1. Upstate New York and Vermont District Council, International Ladies' Garment Workers' Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 3. By interrogating its employees under circumstances described herein and soliciting employees to withdraw from the Union, by threatening plant closure if employees selected the Union to represent them by harassing employees, and by promulgating and enforcing a rule prohibiting employees from soliciting union membership on Company premises during nonworking time, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act 4. By discharging Alvina Loiselle and Gladys Lawson because of their union activities, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, I hereby issue the following: RECOMMENDED ORDER Columbia Casuals Inc., Acacio Guerra, Individually, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of Upstate New York and Vermont District Council, International Ladies' Garment Workers' Union, AFL-CIO, or in any other labor organization of its employees, by discharging, harassing, or otherwise discriminating in regard to the hire or tenure of employment or any terms or conditions of employment of its employees. (b) Interrogating its employees concerning their union activities or desires in a manner constituting interference, restraint or coercion in violation of Section 8(a)(1) of the Act, or soliciting employees to withdraw from a union. (c) Threatening employees with plant closure if they select Upstate New York and Vermont District Council, International Ladies' Garment Workers' Union, AFL-CIO, to represent them. (d) Promulgating, maintaining, and enforcing a rule prohibiting employees from soliciting union membership on Company premises on nonworking time. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Make whole Alvina Loiselle and Gladys Lawson for any loss of pay they may have suffered by reason of the discrimination against them by payment to each of them a sum of money equal to the amount they normally would have earned as wages from the date of their discharge to 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the date of their reinstatement in the manner set forth in the section entitled "The Remedy." (b) Preserve and make available to the Board and its agents, upon request, for examination and copying, all payroll records, social ' security payment records, timecards, personnel records and reports, and all other records relevant or necessary to the determination of the amounts of backpay due under the terms of this recommended order. (c) Post at its premises in Newport, Vermont, copies of the attached notice marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for Region 1,. shall, after being signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply herewith.'" As to the allegations of the complaint found not to have constituted violations of the Act, it is recommended that they be dismissed. 'In the event that this Recommended Order be 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 be enforced by 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." "In the event that this Recommended Order be 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 Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES this Company has violated the National Labor Relations Act. In order to remedy this conduct , we have been required to post this Notice and to take the following steps: WE WILL NOT threaten to close the plant if you select the Upstate New York and Vermont District Council, International Ladies' Garment Workers' Union, AFL-CIO, to represent you. WE WILL NOT interrogate our employees in a manner which constitutes interference with, restraint, or coercion in violation of Section 8(a)(1) of the Act. WE WILL NOT ask employees to withdraw their union authorization cards. WE WILL NOT promulgate, maintain or enforce a rule which prohibits you from soliciting union membership on company premises during nonworking time. WE WILL NOT discourage membership in, or activities on behalf of Upstate New York and Vermont District Council, International Ladies' Garment Workers' Union , AFL-CIO , or any other labor organization, by discharging or harassing employees, or otherwise discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL make whole for any loss of pay they may have suffered by reason of the discrimination against them, Alvina Loiselle and Gladys Lawson, who have been reinstated. All our employees are free to become and remain members of Upstate New York and Vermont District Council, International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization. Dated By ACACIO GUERRA, INDIVIDUALLY: COLUMBIA CASUALS, INC. (Employer) (Representative) (Title) Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: After a hearing duly held, it has been determined that 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 provisions, they may communicate directly with the Board's Regional Office, Room 8A24, Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 334-2921.