Salinas Mfg. Corp.

SALINAS MFG. CORP. Salinas Mfg. Corp. and Shuron Mfg. Corp. and International Ladies' Garment Workers' Union, AFL-CIO and Local 600-601, ILGWU. Cases 24-CA-3355 and 24-RC-4987 June 13, 1974 DECISION AND ORDER AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On March 29, 1974, Administrative Law Judge Jennie M. Sarrica issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Employer filed a brief in answer to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order. 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 and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. A's we have adopted the Administrative Law Judge's recommendation to overrule the Union's Objection 3 and as we find that the other objections lack merit, we shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for the International Ladies' Garment Workers' Union, AFL-CIO and Local 600-601, ILGWU, and that said labor organi- zation is not the exclusive representative of all the employees in the unit herein involved within the meaning of Section 9(a) of the National Labor Relations Act, as amended. I Unless otherwise indicated , all dates are in 1973. DECISION STATEMENT OF THE CASE 573 JENNIE M. SARRICA, Administrative Law Judge: Upon due notice, this consolidated proceeding under Sections 9 and 10(b) of the National Labor Relations Act, as amended (29 U.S.C. § 151, et seq. ), hereinafter referred to as the Act, was tried before me at Hato Rey, Puerto Rico, on January 15 and 16, 1974. Hearing in Case 24-CA-3355 was pursuant to a complaint issued October 16, 1973,1 based on charges filed on May 29, presenting allegations that Salinas Mfg. Corp. and Shuron Mfg. Corp., hereinaf- ter called Respondent, engaged in conduct violative of Sections 8(a)(1) and 2(6) and (7) of the Act, and Respondent's answer denying those allegations; and in Case 24-RC--4987, was pursuant to an order directing hearing on objections issued August 17, by the National Labor Relations Board. All parties were present and participated in the hearing. Based on the entire record, including my observations of witnesses and after due consideration of the arguments presented and Respondent's brief, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTION Respondent, incorporated in Puerto Rico, and engaged at Salinas, Puerto Rico, in the manufacture of lingerie and related products, annually purchases and receives from businesses located in the United States and other places outside Puerto Rico goods and materials valued in excess of $50,000. Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE UNION International Ladies' Garment Workers' Union, AFL- CIO, and Local 1600-601 ILGWU, hereinafter called 'the Union, who is the Charging Party and the Petitioner in the respective consolidated proceedings , is a labor organi- zation within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNLAWFUL CONDUCT A. The Issues The questions raised in connection with the unfair labor practice proceeding involve the supervisory status of certain persons and whether unlawful threats were made by persons representing Respondent. The only matter for consideration in connection with the representation proceeding is whether Respondent engaged in conduct alleged in Objection 3, in the Union's objections to conduct affecting results of representation election in which it is asserted that: On or about April 1, 1973, an Employer's supervisor told an employee that the plant will be closed if the 211 NLRB No. 83 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union won the election, while the employee was at his working site. B. Background The Union organizing campaign lasted approximately 3 months. A petition was filed on March 2 , and a Board election was conducted on April 5. Both the Union and the Employer distributed campaign literature . A committee of employees also launched a campaign against organization utilizing both radio and television, with individual partici- pants appearing in person and stating their views. Respondent's parent corporation and Compex Manufac- turing are both subsidiaries of Kayser Roth Corporation. The Union herein is the same as the one involved at Compex, located at Coamo, within a 30-minute drive from Salinas . At the time of the election at the Respondent's plant, employees at Compex had been on strike for some 7 or 8 months and the factory had remained closed by the strike. Information concerning the strike had been reported in the local newspapers and some of Respondent's employees lived near Coamo so that employees were aware of the situation at Compex. Total employment at Respondent's plant is between 260 and 300, including management and supervisory personnel and clericals. The operators are assigned to sections of from 30 to 50 employees, under the supervision of a section supervisor who reports to a head supervisor. It is admitted that during the time material herein, Plant Manager Eduardo Delbrey and Supervisors Milagros Caraballo, Perseveranda Rodriguez, Noelia de Jesus, and Lydia Vega possessed statutory supervisory authority. Respondent denies that Enrique Manuel Cruz Fuentes, head mechanic, or Palmira Rodriguez possessed such authority. C. Disputed Supervisory Status Enrique Manuel Cruz Fuentes is known among the machine operators as Mane. Sonia Beltran testified she had observed him sending other mechanics to repair machines. Witness Zoraida Gonzales referred to him as chief mechanic and stated she had heard him giving orders to other mechanics. Cruz testified that during the relevant period, as head mechanic for Respondent, he "supervised" the three other mechanics. However, most of his working time was spent fixing machines. He was the most experienced mechanic and whenever changes of machines or changes in settings on machines were required Cruz instructed the other mechanics as to what was needed to be done and how this could be accomplished. To him these were routine matters. Each mechanic was responsible for the function of the machines in the section where he worked and all performed the same type of work. Cruz gave assistance when help was needed by one of these mechanics. If an emergency arose, Cruz would take over that section to handle the problem and the mechanic regularly handling work in that section would take over the section where Cruz had been working. Whenever a mechanic encoun- tered a mechanical problem he did not know how to handle he would contact Cruz who would determine what needed to be done. Problems other than mechanical were referred to the general manager. Cruz testified he had no authority to hire or fire employees and no authority to excuse an employee from work or authorize overtime unless specific orders to that effect were given to him. Although Cruz was not included among the list of eligible voters in the election, this was by stipulation and does not constitute a determination or a concession of supervisory status. Nor does Cruz's own characterization of his job as "supervisor" determine his statutory status. On the basis of the testimony presented I find that Cruz did not, during the relevant period, possess any of the statutory authority indicative of supervisory status. Rather, his instructions and orders involved routine matters related to his particular skill as the most experienced mechanic. I find that Cruz was a leadman and was not a supervisor within the meaning of Section 2(11) of the Act. Palmira Rodriguez had the title of assistant supervisor in the section of operators supervised by Olga Lydia Martinez. This section is divided among three -assistant supervisors who have the responsibility of distributing work to the operators. Palmira Rodriguez was responsible for supplying work to about 20 operators. Zoraida Gonzalez testified that Palmira worked as forelady in the section next to the one where she worked and that in addition to giving out work she has heard Palmira "give orders to employees." There is no evidence of what type of orders was meant by Gonzalez' testimony. Palmira testified that she does not give the operators she services orders or directions because "we have a supervisor." Palmira's name was originally on the eligibility list prepared for the election but was eliminated by stipulation of the parties. Both before and after the election she attended meetings conducted by Respondent's attorney to instruct supervisors as to how they were to conduct themselves with respect to the organizing campaign and the union activity of the employees. I find neither the eligibility list stipulation nor attend- ance at meetings at which supervisors were instructed as to appropriate conduct during the campaign sufficient to establish supervisory authority. Nor do I find in the testimony describing her duties sufficient evidence to establish that Palmira Rodriguez possesses any statutory supervisory authority. As I have found that neither Enrique Manuel Cruz Fuentes nor Palmira Rodriguez is a supervisor within the meaning of the Act, and as there is no evidence establishing that either was otherwise acting as an agent of Respondent, I shall not consider testimony as to any statements they may have made to other employees. D. The Alleged 8(a)(1) Conduct The allegation in the complaint is that on April 1, and on certain unknown dates preceding the election, supervisors of Respondent threatened employees at the plant with closing of the plant or other reprisals if the Union won the election. Sonia Beltran testified that about a week before the election, while she was at the machine, she was conversing with a fellow employee. Supervisor Noelia de Jesus came over to them and asked what they were talking about. SALINAS MFG. CORP. 575 Sonia Beltran told her it was about the Union. De Jesus reminded the operators that during working hours they should -neither .speak for or. against the Union, and added that they should keep in mind the example of the girls from Coamo; that due to the fact that the Union had won the election the factory had been closed; that the same thing could happen to them; that if the Union won they would close the factory and employees would have no jobs. On cross-examination, Beltran related that when she admitted the operators had been talking about the Union de Jesus said they should think over what they were going to do because they should consider the example of the girls in Coamo who had a union and did not have a factory; that the same thing would happen to them-if the Union won, the plant would be closed. Beltran could not recall the identity of the fellow employee working next to her and involved in this incident. Beltran further testified that a few days after the above conversation with de Jesus she and a group of employees were on their break when supervisor Lydia Vega, who was present, commented that at Salinas Manufacturing they did not need a union because nobody was sent home on layoff and that employees should use as an example the girls from Coamo where they had a union but no factory and that the same thing could happen there: employees would have a union and "they" would close the factory. With respect to the situation at the Compex plant at Coamo, Beltran testified: Q. When you mention the factory at Coamo, what are you referring to? A. At that time there was the Compex, which they closed because of the union. - Q. Did you have knowledge at the time that that factory had been closed down? A. That it was on strike. Q. Do you know if that factory was operating during the strike or if it had shut down? A. They had closed down. She further testified she knew at the time of the election at the Salinas plant that employees had been on strike at Compex for about 6 months and that this was the reason the Compex plant was closed. The supervisors did not tell her this. She knew it, and she knew the Union involved was the same one organizing the employees of Respondent. Although Beltran testified that those two occasions were not the only times she heard the same supervisors speak about what would happen at the company if the Union won the election, and indicated that such incidents were numerous, she was unable to fix the time or circumstances of any such occasion or what was said. At first she stated she could not remember the various occasions, but the same things were "given to be understood." Finally, she fixed the time as 3 or 4 weeks before the election and testified that Vega had said the factory at Salinas did not need a union because no one there was laid off, and "what was the use for us to have a union and have the plant closed down," referring to Coamo. Neolia de Jesus, who is no longer in Respondent's employ, appeared under subpoena. She testified that she knew Beltran, who worked in her section, and knew that Beltran was in favor of the Union through overhearing conversations among employees during their break peri- ods. She denied that she made any of the comments related by Beltran concerning the plant closing if the Union won the election, either to Beltran or any other employee. De Jesus testified that it was a plant rule that employees were not supposed to talk during working time and it was her job to enforce company rules, but on no occasion during the relevant period did she caution employees against talking about the Union during working hours. She testified further, that supervisors were under instructions from the Respondent's lawyers as to what they were permitted to say to employees and what they could not say during this period. De Jesus also denied she had heard any rumors to the effect that if the Union won the election the plant would be closed, but stated she knew Manager Delbrey had called a meeting because of such rumors. She testified that she had not been questioned by the Board agent when she was interviewed after the election about any such statement she may have made to Beltran and did not speak with Respondent's attorney concerning matters covered by her testimony until the day on which she was testifying pursuant to subpoena. Lydia Vega denied she made statements attributed to her by Beltran either to Beltran or any other employee. She testified she had heard rumors among employees that if the Union won the factory would be closed and told employees this was not true. She was also present when Delbrey told employees the rumor was not true. She testified that supervisors were under instructions from Respondent's attorneys as to what they could not say and that whenever an employee commented to her about the Union she chose to ignore them. Rosa Santiago, who worked at the machine next to Beltran during the period preceding the election, testified that she never heard Supervisor de Jesus say anything to Beltran to the effect that if the Union won the election the plant would be closed, or to remember the example of the Compex plant in Coamo, etc. Iris Grin, who worked two lines away from Beltran, gave similar testimony. Zoraida Gonzalez, an operator who worked under the supervision of Milagros Caraballo, testified that just before starting time while employees were at their work stations a few days before the election, Caraballo told her and Marina Maldonado that if the Union won the election the same thing that happened at Compex could happen to them. Gonzalez further testified that Caraballo spoke to her every day about the Union during the month preceding the election and as frequently as four or five times a day, and that this was the theme every time she spoke. These conversations took place at their work station, in the ladies' room, in groups during break periods, and at lunch in front of the plant. Gonzalez asserted that Beltran had to have heard what Caraballo said because she was in the group gatherings, and that Marina Maldonado was present when such conversations took place at their work station or in the ladies' room. Marina Maldonado was served a subpoena by the General Counsel but did not testify. Beltran, who testified, did not mention any comments whatsoever made by Supervisor Caraballo. Caraballo denied making any of the statements attributed 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to her. by Gonzalez. She testified that she lunches daily at her mother's home, and that although supervisors have a separate ladies room, on occasion she uses the employees' ladies room and has encountered Gonzalez there on several occasions when the latter and other employees were speaking about the Union. Caraballo testified that supervi- sors were instructed by Delbrey and by Respondent's attorneys they should make no comment either for or against the Union. She knew that Gonzalez was for the Union because the latter openly identified herself with the union campaign and on several occasions she was required to speak to Gonzalez to stop the latter from distributing union literature during working hours. Therefore, she avoided conversations with Gonzalez because of the instructions to supervisors. Caraballo heard rumors among the operators that the plant would close if the Union won the election and reported such rumors to Delbrey who called supervisors together and instructed them to refer any employees with questions to him. He also held meetings with employees in the cafeteria. Caraballo further testified that there is a plant rule against employees talking during working time. She reported to Delbrey that Gonzalez was talking about the Union during working hours. Delbrey told her that in order to avoid problems she should ignore Gonzalez. Ada Irma Zayas, who worked next to Gonzalez, and Josefa Quinones, who works five or six machines behind her, testified they had never heard Caraballo tell Gonzalez or any other employee that if the Union won the election the plant would be closed, or to remember what happened at Compex. Delbrey is no longer employed by Respondent. During the Union's campaign he was general manager . Beginning about 3 weeks before the election, Delbrey testified, he received inquiries from individual employees asking whether it was true that if the Union won the election the factory would close down. He avoided asking those individuals the source of such rumors but did inquire whether a supervisor had made such statements and had received a reply in the negative. He advised the individual questioner that the rumor was not true, and as support cited the new machines that were being brought into the plant. Later, when he had received approximately 10 such inquiries within the period of 5 days, Delbrey decided to speak to employees as a group about it. He held one general meeting 5 days before the election followed by meetings with employees in groups of 15 to 20. Delbrey testified that at such meetings he told employees not to pay attention to threats of any kind and that the rumors of plant closing were not true. He informed the employees that the plant was currently receiving new equipment. He 2 Zayas recalled that Delbrey talked about new machines but denied that he said anything about the Union when admittedly he was discussing the election arrangements. Quinones, who attended one of the smaller group meetings, denied she heard Delbrey mention the rumors or new machinery. Mojica testified that she did not hear Delbrey say anything about the rumor but also testified that after he spoke about the election regulations employees began asking questions . They asked Delbrey if the rumors were true, and he told them, on the contrary, they were going to get more work to do; the Company was bringing in new machines for them. She then explained that Delbrey just answered questions . Mateo asserted that Delbrey said nothing about the rumor but did say the Company was going to bring in new machinery , employees were going to have better working also instructed them that if anyone knew of any person, employee or supervisor, who was saying that the plant would close or making any type of threat, that individual should tell him and he would take action right away. Several witnesses were asked whether they were present at a meeting at which Delbrey made the foregoing statements. Their recollections were not consistent.2 Some of such inconsistency may be attributable to employees attending different meetings and variances in what Delbrey stated at each, and some may be caused by differences in ability to clearly recollect. I am inclined to conclude, however that a substantial portion of the apparent inconsistency may have been caused by differing nuances in the languages and in the interpretation. On the whole I find Delbrey's testimony corroborated by other witnesses, including those whose testimony is set forth above. I do not credit the testimony of Beltran or Gonzalez. Both were given to gross exaggeration and neither was able to substantiate the broad assertions of repeated unlawful statements by the named supervisors. This casts grave doubts as to their veracity concerning the single incidents they related. Beltran could not even recall the name of the employee who was working next to her and who assertedly was present at the incident involving de Jesus. Further, there is substantial variance in Beltran's testimony on direct and on cross-examination as to precisely what was said by de Jesus. With respect to the incident involving supervisor Vega, Beltran indicated it took place in the presence of a group of employees. Yet her testimony stands uncorroborated, and it was only with great difficulty that Beltran identified another similar statement by Vega despite her testimony that such incidents were frequent. It appeared that Beltran was again caught in her own generalizations and exaggerations. She gave no setting for such comment which might have bestowed an air of truth to her assertions. It is clear that employees, and Beltran in particular, were fully aware that the Compex plant at Coamo, where employees were represented by the Union involved herein, was closed by a lengthy and bitter strike which had been well publicized in local newspapers, and that the plant closing was known to be a result of the strike and not a retaliation against employees because they selected representation by the Union. Similarly, Gonzalez, who claimed that both Maldonado and Beltran could verify her testimony of unlawful comments daily by Supervisor Caraballo, was not corroborated by either. Nor did Luz Maria Raspaldo, who testified for the General Counsel, verify the testimony of either Gonzalez or Beltran for she admitted she had not heard Caraballo or de Jesus so speak. conditions, and there was going to be a tot of work. Santiago testified about a meeting at which Delbrey told employees they should vote the way they felt, but she did not refer to the rumor or to new machinery. Grin testified that at the meeting she attended Delbrey did not talk about the rumors of the plant closing down . She stated, however, that she was in the group who asked Delbrey if it was true if the Union won the election the plant would close, and that Delbrey replied "No," on the contrary, they were bringing in new machinery. The testimony generally given by these employees was not significant in relation to the primary issues in the case. Therefore, although they all seemed to some degree anxious not to give any testimony damaging to the Respondent, I find it unnecessary to individually evaluate credibility. SALINAS MFG. CORP. On the other hand, I found de Jesus a particularly convincing witness. I credit her denial of the incident related by Beltran. I also accept as truthful Vega's denials that she made the statements attributed to her by Beltran, and Caraballo's version of her problems and exchanges with Gonzalez during the election campaign. Accordingly, I find that the allegations of unlawful conduct herein have not been substantiated by a prepon- derance of the credible testimony, and shall recommend the dismissal of the complaint in its entirety. I also recommend that in considering the Union's objections to the election conducted on April 5, 1973, that the Board find no merit in Objection 3, on the basis of the testimony presented at the hearing herein. Upon the basis of the foregoing, and the entire record I make the following: s In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended order herein CONCLUSIONS OF LAW 577 1. Respondent is an employer engaged in commerce and in operations affecting commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. The evidence fails to show that Respondent violated the Act as alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and pursuant to Section 10(c) of the Act, it is hereby recommended that there issue the following: ORDERS It is hereby ordered that the complaint be, and it hereby is, dismissed in its entirety. shall, as provided by Section 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