H. S. Knitting Mills, Inc.

H.S. KNITTING MILLS 355 H. S. Knitting Mills, Inc. and Blouse, Skirt and Sportswear Workers Union Local 23-25, Interna- tional Ladies' Garment Workers' Union, AFL-CIO. Case 29-CA-3578 June 12, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On February 28, 1974, Administrative Law Judge Ramey Donovan issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief and the General Counsel filed cross-exceptions and an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein. AMENDED REMEDY We shall order Respondent to make whole those employees who made unconditional application for reinstatement on December 7 and 10, 1973, respec- tively, by payment to them of a sum of money equal to that which they normally would have earned as wages beginning 5 days after the date on which they applied for reinstatement. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that Respondent, H. S. Knitting Mills, Inc., of Brooklyn, New York, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified: 1. Change paragraph 1(c) to 1(d) and insert the following as 1(c): "(c) Refusing to reinstate discharged strikers because they participated in a strike or because they engaged in other concerted activities for collective- bargaining purposes." 2. Substitute the following for paragraphs 2(a) and (b): "(a) Offer to Modesta Suriel, Lidia Nunez, Eladio Aquino, Maria Rodriguiz, Maria Martos, Elidia M. Crus, Peter Di Girolamo, and Alice Rodriguez immediate and full reinstatement to their former positions or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired subse- quent to the discharges of September 26, 1973. "(b) Upon application, offer to Maria Ferrera, Lolita Delgado, Matilda Corria, Florenzo Lascano, Aluzangela Tomaayas, Grace Martos, and Maxima Batista, immediate and full reinstatement to their former positions or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired subse- quent to the discharges of September 20, 1973." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten employees with harm or reprisal if they engage in union or concerted activities that are protected by Section 7 of the National Labor Relations Act. WE WILL NOT discharge employees because they engage in union or concerted activity on behalf of Blouse, Skirt and Sportswear Workers Union Local 23-25, International Ladies' Gar- ment Workers' Union, AFL-CIO, or any other union. WE WILL offer to Modesta Suriel, Lidia Nunez, Eladio Aquino, Maria Rodriguez, Maria Martos, Elida M. Crux, Peter Di Girolamo, and Alice Rodriguez immediate and full reinstatement to their former positions or, if those jobs no longer exist, to substantially equivalent positions, dis- missing, if necessary, any employees hired after the discharges on September 20, 1973. WE WILL offer, upon request, to Maria Ferrera, Lolita Delgado, Matilda Corria, Florenzo Lasca- no, Aluzangela Tomaayas, Grace Martos, and Maxima Batista immediate and full reinstatement to their former positions or, if those jobs no longer exist, to substantially equivalent positions, dismissing, if necessary, any employees hired after the discharges on September 20, 1973. WE WILL make whole the 15 employees above- named for any losses in pay they may have suffered by reason of their discharge on Septem- ber 20, 1973. 211 NLRB No. 38 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner, interfere with, restrain, or coerce employees in the exercise of their rights, as guaranteed by Section 7 of the National Labor Relations Act, to join or assist Blouse, Skirt and Sportswear Union Local 23-25, International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right might 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 said Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT discourage concerted activity or union activity on behalf of Blouse, Skirt and Sportswear Union Local 23-25, International Ladies' Garment Workers' Union, AFL-CIO, or any labor organization, by discharging or discrim- inating against strikers or employees who refrain from work during a strike. H. S. KNITTING MILLS, INC. (Employer) ees with discharge and other reprisals if they became members of the Union or assisted or supported the Union. All the foregoing conduct is alleged to constitute violations of Section 8(a)(1) and (3) of the Act. In its answer Respondent denies the commission of the alleged unfair labor practices. The case was tried in Brooklyn, New York, on December 17, 1973, with all parties represented by counsel. FINDINGS AND CONCLUSIONS 1. JURISDICTION At all times material , Respondent is a New York corporation that maintains its principal office and place of business at Berriman Street, city and State of New York, herein called the plant . At the plant, Respondent manufac- tures, sells, and distributes knit goods and related products. During a representative 12-month period in 1973, Respondent, in the course of its business, purchased and caused to be transported at its plant , yarn and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its plant in interstate commerce directly from states of the United States other than New York. Respondent, at all times material, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Union , at all times material , is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11201, Telephone 212-596-3535. DECISION RAMEY DONOVAN, Administrative Law Judge: The charge in this case was filed on October 2, 1973, by the Union, and the complaint issued on November 21, 1973. The complaint alleges that, on or about September 20, 1973, Respondent, H. S. Knitting Mills, Inc., discharged 15 named employees because they engaged in a concerted work stoppage and strike ; and that Respondent on December 7 and 10 , 1973, refused to reinstate eight named dischargees upon their unconditional request for reinstate- ment. It is alleged that Respondent threatened its employ- Gerstein, director of organization of the Union , testified that a delegation of Respondent 's employees had ap- proached the Union and had asked the latter to represent them. Thereafter, on Tuesday, September 11, 1973, Gerstein and Gomez, a union organizer, went to Respon- dent's plant and spoke to Sher, the sole stockholder and principal operating official of Respondent. According to Gerstein's and Gomez' credible testimony, after Gerstein introduced himself and Gomez to Sher, Gerstein informed Sher that a majority of Respondent's employees had come to the Union to ask the Union to represent them . The union representatives said that they represented a majority of the employees and would like to negotiate a contract. Sher said that he paid his employees $3 an hour, as well as vacations , holidays, and benefits. Sher said that Gerstein was not interested in the employees but in himself as a union official . Gerstein said that the Union represented a majority of Sher's employees and that the latter had signed union cards. When Sher asked which employees had signed, Gerstein said that at the proper time the Union would present the cards to the National Labor Relations Board. Sher repeated that Gerstein and Gomez were not interested in the employees but only in them- selves. The two union representatives then left.' On the following morning, Wednesday, September 12, about 7 a.m., a union picket line appeared in front of Respondent's plant. The signs carried by the pickets read, I Sher testified that the union representatives had asked him to sit down and negotiate and when he said, let me think about it, they left H. S. KNITTING MILLS 357 H. S. Knitting, On Strike, and the name of the Union. By about 8 a.m. there were approximately 20 of 21 employees outside the plant who had not gone in to work.2 Some of these employees had joined the picket line while others had simply refrained from going into the plant and remained outside. When Sher arrived, sometime around 7:30 a.m., he thereafter told all the employees who had not come into the plant that they should not be afraid and that if they wished to work they should go into the plant.3 According% to Sher, "about seven" employees then went into the plant to work .4 From and including September 12 through Thursday, September 20, 1973, 14 employees had not reported for work. By certified letter dated September 20, 1973, to all 14 employees who had not reported for work, and in some cases by additional manual transmission of the letter, Respondent notified these employees that they were "permanently discharged for failure to report for work during the period commencing Wednesday, September 12, 1973, to the present date." Consistently, in his testimony throughout this hearing, Sher has affirmed that he discharged the employees because they failed to report for work during the strike. Peter Di Girolamo, an employee, went to work and worked on September 12 and 13, 1973, the first 2 days of the strike. Thereafter, he did not report to work. In the period when he, Di Girolamo, did not come to work, Sher telephoned him and said, "Peter, come back to work." Peter, however, did not report for work after this call. The Reverend Cono De Paola is a priest stationed in a church about a block from Respondent's plant. Most of the Spanish-speaking employees of Respondent are parish- ioners of the church. Cono De Paola has known Peter Di Girolamo about 5 years. On apparently 1 or 2 days during the initial stages of the September 12 strike, Cono De Paola went to the plant and spoke to Sher. One of these conversations occurred after Peter Di Girolamo did not report for work and Cono De Paola testified that it was probably on Friday.5 Sher told Cono De Paola to tell Peter that Sher "would fire Ignazo too if Peter wouldn't come [to work]" and Peter could find himself another job. Thereafter Cono De Paola conveyed this message to Peter, telling Peter that "if he didn't go back to the job, to work, he [Sher] would fire Ignazo."6 Peter Di Girolamo testified that after working the first 2 days of the strike, he decided to join the strike and not to work. He signed a union card. Sher testified that he discharged Peter Di Girolamo when he stopped coming to work. Peter received his paycheck and termination letter on September 21, 1973. His brother Ignazo had brought them to him since Peter was not at the plant. The letter was the same as the letters sent and given to the other 14 2 One employee, who customarily came into the plant at 6 a m to open the premises, was already inside the plant 3 During the course of the morning police had appeared on the scene The police sergeant announced to the employees and others outside the plant that whoever wanted to work could go to work 4 When asked the names of these employees Sher named eight, to wit, Milleaeppo, Duria; Wolcszyn (this is the girl who had gone in at 6 am, before the work customarily started), Bonita Rodriguez, Peter Di Girolamo: Igazo Di Girolamo, Pennisi, Gold This would be seven, excluding Wolcszyn 5 Peter did come to work on Wednesday and Thursday, September 12 employees on September 20 and who had not come to work because of the strike. In short, Peter was advised that effective September 20, 1973, he was permanently dis- charged for failure to report to work. On Friday, December 7, 1973, Union Organizer Escobar went to the plant with employees Modesta Suriel, Eladio Aquino, and Lidia Nunez.7 Escobar told Sher that the three employees wanted reinstatement to their jobs. Escobar also handed to Sher letters signed by each of the three employees and addressed to Sher. The letters stated that the writer or signer was making an "unconditional request for reinstatement to my job in your shop. I am ready to return to work at once." According to Escobar, Sher then called him a racketeer who had spoiled his business and now wanted him to take back the employees. He told Escobar that he would not hire back the employees, that business had been spoiled by the Union and was slow. Sher told Escobar to leave and escorted him to the door. On Monday, December 10, 1973, union organizer Gomez came to the plant with five different employees and told Spencer that the employees wanted reinstatement and were ready to go back to work .8 Gomez also handed to Sher letters signed by the five employees and addressed to Respondent. The letter stated: We hereby serve notice upon you of our unconditional request for reinstatement to our jobs in your shop. We are ready to return to work at once. On this occasion Sher told Gomez that he had no work and no jobs for the aforementioned people; that the Union had put his plant on strike and had taken the employees on strike and, so let the Union find jobs for them. Sher also said that he was closing the plant for 2 weeks' vacation and would give vacation pay to the employees now working for him inside the plant. I credit Gomez that Sher did not offer to take back the five employees after the 2-week vacation period that Sher said would t,'ke place. Conclusions In September 1973, after the commencement of the strike, when Sher told the Reverend Cono Paola to tell the latter's friend, employee Peter Di Girolamo, that Sher would discharge employee Ignazo Di Girolamo, brother of Peter, if Peter did not return to work (during the strike), this was a threat of reprisal calculated to interfere with Peter's exercise of his rights under Section 7 of the Act.9 I find this conduct to constitute a violation of Section 8(a)(1) of the Act. The fact that the threatened action against and 13, and did not report on Friday, September 14, and thereafter 6 Ignazo Di Girolamo is the 70-year-old brother of Peter and he was employed in the plant Sher had told Cono De Paola that he had only hired Ignazo in the first place because of Peter Ignazo worked throughout the strike and was not discharged These were 3 of the 15 employees discharged on September 20, 1973 8 The five employees were among the 15 discharged on September 20, 1973, because they had refused to work during the strike They were Maria Rodriguez, Alice Rodriguez, Maria Martos, Elida M Cruz, Peter Di Girolamo 9 Cono Paola did give Sher's message to Peter as directed by Sher 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ignazo was not subsequently carried out, does not affect the conclusion that an illegal threat had been made.'° On and since September 12, 1973 , 14 of the 15 employees named in the complaint engaged in a union-sponsored strike and a concerted work stoppage , a concerted withholding of services, and refusal to cross a picket line at Respondent's plant. An additional employee, Peter Di Girolamo, began his participation in the strike, concerted work stoppage, concerted withholding of services, and refusal to cross the picket line on September 14, 17, or 18, 1973. The foregoing described conduct of the 15 employees was protected activity within the meaning of Section 7 of the Act. The "permanent discharge" of the 15 employees on September 20, 1973, because they did not report for work and engaged in a strike , a concerted work stoppage, a concerted withholding of services, and refusal to cross the picket line, constitutes a violation of Section 8(a)(3) and (1) of the Act. Respondent has failed and refused to reinstate the 15 discharged employees, including 8 of the 15 employees who applied for reinstatement on December 7 and 10, 1973. This is a continued violation of Section 8(a)(3) and (1) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices it will be recommended that it be ordered to cease and desist from such conduct and to take certain affirmative action to effectuate the policies of the Act. It is doubtful that any characterization of the strike is necessary, since "Quite apart from any characterization of the strike that continued after the wrongful discharge occurred, the discharges [on September 20, 19731 were a sufficient ground for the Board's reinstatement order." 11 However, since the dischargees were strikers or were engaged in a concerted withdrawal from work and were respecting the picket line prior to, and at the time of, their discharge and thereafter, their rights to reinstatement and backpay become operative from the date of their uncondi- tional application for reinstatement. Three dischargees, heretofore described, made unconditional application for reinstatement on December 7, 1973; five other dischargees, heretofore described, made unconditional application for reinstatement on December 10, 1973. All were refused reinstatement. These eight dischargees are entitled to be offered immediate- reinstatement to their former or substantially equivalent jobs and to backpay from the date of their application for reinstatement on December 7 and 10, 1973, respectively, to the date of the offer of reinstatement, less any intermediate earnings. Since at the time of the instant hearing picketing was taking place and the strike was still in effect, the seven dischargees who did not apply for reinstatement on 10 While no action was taken against Ignazo , Peter was discharged for respecting the picket line, joining the strike, and for not reporting to work. 11 N.L. R.B. v. International Van Lines, 409 U.S. 48 (1972) 12 N. L.R.B. v. International Van Lines, supra. 13 Ibid. 14 Although I do not consider it a relevant issue in the instant case, I find that the strike was economic in its inception and became an unfair labor practice strike. As stated by the Board in the International Van Lines case, supra. "The discharge of the aforesaid employees, which had the natural December 7 and 10, 1973, shall be entitled to reinstatement to their former or substantially equivalent jobs upon unconditional application for reinstatement and with backpay from the date of such application to the time of their reinstatement or Respondent's offer of reinstatement, less intermediate earnings. It is clear that Respondent "committed unfair labor practices when it fired its striking employees." 12 This is a violation of Section 8(a)(3) and (1) and it is unnecessary to determine whether "the discharged employees assumed the status of unfair labor practice strikers ...." 13 As stated by the Supreme Court: Unconditional reinstatement of the discharged employ- ees was proper for the simple reason that they were the victims of a plain unfair labor practice by their employer. Quite apart from any characterization of the strike that continued after the wrongful discharges occurred, the dischargees themselves were a sufficient ground for the Board's reinstatement order. "Reinstate- ment is the conventional correction for discriminatory discharges." Since we have an 8(a)(3) discriminatory discharge case before us, the question of replacement or lack of replace- ment of the dischargees is irrelevant. Further, the record shows that after the discharges, Respondent hired four "replacements." Whether these "replacements" were tem- porary or permanent and which dischargees they purport- edly replaced is not shown although in cases where "replacement" is properly an issue, e.g., an economic strike, the burden of proof thereof is upon the party asserting that certain employees have been permanently rep1aced.14 Contentions regarding the subsequent state of Respon- dent's business and the availability of jobs for the dischargees are appropriately to be considered as matters of compliance. Absent availability of jobs because of legitimate economic reasons, the dischargees are to be placed on a preferential hiring list. ORDER 15 Respondent H. S. Knitting Mills, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with reprisals if they engaged in union or concerted activity protected by Section 7 of the Act. (b) Discouraging concerted activity or union activity on behalf of Blouse, Skirt, and Sportswear Union Local 23 25, International Ladies' Garment Workers Union, AFL-CIO or any labor organization, by discharging or discriminating against strikers or employees who refrain from work during a strike. (c) In any other manner, interfering with, restraining, or effect of tending to prolong the strike, converted what had commenced as an economic walkout into an unfair labor practice strike " 15 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes H. S. KNITTING MILLS 359 coercing employees in the exercise of their rights as gurarnteed by Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer to Modesta Suriel, Lidia Nunez, Eladio Aquino, Maria Rodriguez, Maria Martos, Elidia M. Crus, Peter Di Girolamo, and Alice Rodriguez, immediate and full reinstatement to their former or substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired subsequent to the discharges of September 20, 1973. (b) Upon application, offer to Maria Ferrera, Lolita Delgado, Matilda Corria, Florenzo Lascano, Aluzangela Tomaayas, Grace Martos, Maxima Batista, immediate and full reinstatement to their former or substantially equiva- lent jobs, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired subsequent to the discharges of September 20, 1973. (c) Make whole the aforenamed employees for any losses they may have suffered because of the discrimination against them for the following periods and as more fully set forth in the section of this Decision entitled "The Remedy": Modesta Suriel, Lidia Nunez, Eladio Aquino, from December 7, 1973, to the date of the offer of reinstatement; Maria Rodriguez, Maria Martos, Elida M. Cruz, Peter Di Girolamo Alice Rodriguez, from 16 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read December 10, 1973, to the date of the offer of reinstatement. Maria Ferrera, Lolita Delgado, Matilda Corria, Floren- - zo Lascano, Aluzangela Tomaayas, Grace Martos, Maxima Batista, from the date of their applications or application, to the date of the offer of reinstatement. (d) Preserve and, upon request, make available to the Board, or its agents, for examination any copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary for determination of the amount of backpay due and the rights of reinstatement under the terms of this Order. (e) Post at its office and plant in Brooklyn, New York, copies of the attached notice marked "Appendix." 16 Copies of said notice, on forms provided by the Regional Director for Region 29, after being signed by an authorized representative of Respondent, immediately upon receipt thereof, and be maintained by it for 60 consecutive day thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by other material. (f) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."