Acacio Guerra

National Labor Relations Board - Board Decisions

Jan 15, 1970

180 N.L.R.B. 741 (N.L.R.B. 1970)

ACACIO GUERRA , COLUMBIA CASUALS, INC.
Acacio Guerra , Individually ; Columbia Casuals, Inc.;
Guerra Garments ; and Island Pond Mfg. Co. and
Upstate New York & Vermont District Council,
International Ladies' Garment Workers' Union,
AFL-CIO
Columbia Casuals, Inc. and Guerra Garments and
International Ladies' Garment Workers' Union,
AFL-CIO, Petitioner. Cases 1-CA-6632,
1-RC-10370, and I -RC- 1 037 l
January 15, 1970
DECISION, ORDER, AND DIRECTION
BY MEMBERS FANNING, BROWN, AND JENKINS
On September 8, 1969, Trial Examiner Samuel
Ross issued his Decision in the above-entitled
proceeding, finding that Respondents had engaged in
and were engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that they cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that
Respondents had not engaged in certain other
alleged unfair labor practices and recommended
dismissal of those allegations of the complaint. He
further found that certain of the Union's objections
to the elections in Cases I-RC-10370 and
1-RC-10371 should be sustained, and recommended
that the election in Case 1-RC-10370 be set aside
and that a revised tally of ballots be prepared in
Case 1-RC-10371. He further recommended that if
the revised tally gave the Union a majority of valid
votes cast in Case 1-RC-10371, it should be
certified. If the Union did not receive a majority, a
new election was recommended. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision together with a supporting brief, and the
General Counsel' filed a brief in support of the Trial
Examiner 's Decision.
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 made at the hearing 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.
'On October 20, 1969 , the General Counsel filed a motion to reopen this
case and remand and consolidate it with a pending complaint case, Case
I-CA-6845, against this same Employer. On or about November 5, 1969,
the Charging Party, by telegram , joined in this request . On November 7,
1969, the Board issued an Order denying the Motion.
'We disagree with the Trial Examiner ' s conclusion that the record
ORDER
741
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, and
hereby orders that the Respondents, Acacio Guerra,
Individually; Columbia Casuals, Inc.; Guerra
Garments, Newport, Vermont; and Island Pond
Mfg. Co., Island Pond, Vermont, their officers,
agents , successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges
unfair labor practices not found herein.
IT IS FURTHER ORDERED that the election
conducted in Case 1-RC-10370 on March 25, 1969
be, and it hereby is, set aside, and that Case
1-RC-10370 be severed and remanded to the
Regional Director for Region I for the purpose of
conducting a new election among the employees in
the unit found appropriate, at such time as the
Regional Director deems that the circumstances
permit the free choice of a bargaining
representative.
IT IS HEREBY DIRECTED with regard to the election
held on March 25, 1969, in Case 1-RC-10371, that
the Regional Director for Region I shall, pursuant
to the Board's Rules and Regulations, within 10
days from the date of this Direction, open and count
the ballot of Alma Lamoureux and, thereafter,
prepare and cause to be served upon the parties a
revised tally of ballots, including therein the count
of the above ballot; and
IT IS HEREBY FURTHER DIRECTED that if the results
according to the revised tally indicate that the
Petitioner has received a majority of total votes
cast, including the above-named challenged ballot,
the Regional Director shall certify Petitioner as the
exclusive representative for collective-bargaining
purposes of the employees in the appropriate unit.
However, if the revised tally of ballots shows that
Petitioner has not received a majority of the total
supports a finding that Respondent deliberately padded the eligibility lists
to affect the election results and , therefore, find it unnecessary to
determine whether such conduct would violate Section 8(a)(I) of the Act.
We accordingly delete paragraph 1(c) of his Recommended Order and the
related provision of the notice
'We find without merit Respondents ' allegations of bias on the part of
the Trial Examiner There is no basis for finding that bias or partiality
existed because the Trial Examiner resolved important factual conflicts in
favor of the General Counsel' s witnesses " Total rejection of an
opposed view cannot of itself impugn the integrity of a trier of fact "
N L R B v Pittsburgh Steamship Co, 337 U S. 656, 659. Moreover, it is
the Board 's established policy not to overrule a Trial Examiner's
resolutions as to credibility except where the clear preponderance of all the
relevant evidence convincingly shows that the resolutions are incorrect
Standard Dry Wall Products , Inc, 91 NLRB 544, enfd. 188 F 2d 362
(C.A. 1). We have carefully examined the record and find no basis for
disturbing the Trial Examiner's credibility findings
'Member Jenkins would sustain the challenge to the ballot of Alma
Lamoureux, and modify the Trial Examiner's other conclusions
accordingly
180 NLRB No. I l l
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ballots as provided above, then it is ordered that the
election held on March 25, 1969, in Case
1-RC-10371, be set aside , and that Case
I-RC-10371 be severed and remanded to the
Regional Director for Region I for the purpose of
conducting a new election among the employees in
the unit found appropriate, at such time as the
Regional Director deems that the circumstances
permit the free choice of a bargaining
representative.
Inasmuch as a second election in Case
1-RC-10370 has already been ordered herein, and in
the event that a second election in Case 1-RC-10371
is necessary, the following shall apply:
[Direction of Second Election' omitted from
publication.]
'In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc.. 156 NLRB 1236; N L R.B. v. Wyman -Gordon Company.
394 U.S 759 Accordingly , it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters, must be
filed by the Employer with the Regional Director for Region I within 7
days after the date of issuance of the Notice of Second Election by the
Regional Director The Regional Director shall make the list available to
all parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Trial Examiner: Upon a charge filed
March 10, 1969, and amended on April 25, 1969, by
Upstate New York & Vermont District Council,
International Ladies' Garment Workers' Union,
AFL-CIO (herein called the Union), the General Counsel
of the National Labor Relations Board issued a complaint
on May 7, 1969, which alleges that Acacio Guerra, an
individual, Columbia Casuals, Inc., Guerra Garments, and
Island Pond Mfg. Co. (herein collectively called
Respondent, and separately called Guerra, Columbia,
Guerra Garments, and Island Pond, respectively) have
engaged in unfair labor practices within the meaning of
Sections 8(a)(1) and (3) and 2(6) and (7) of the Act. In
substance, the complaint alleges: (1) that the named
separate Respondents constitute a single-integrated
employer and enterprise within the meaning of the Act;
(2) that Respondent discharged and/or laid off employees
Gladys Lawson and Vivian Farrar, and thereafter refused
to reemploy them because of their membership in and
activities in support of the Union; and (3) that
Respondent engaged in other conduct which interfered
with, restrained, and coerced employees in the exercise of
their rights guaranteed by Section 7 of the Act. The
answer to the complaint denies the foregoing and the
commission of the charged unfair labor practices.
In Cases 1-RC-10370 and 10371, the Petitioning Union
filed separate petitions for certification as the
collective-bargaining representative of the employees of
Columbia and Guerra Garments, respectively. Pursuant to
two Decisions and Directions of Election of the Regional
Director dated February 14, 1969, separate elections were
conducted on March 25, 1969.' Thereafter on April 2,
1969, the Petitioning Union filed timely Objections to
Conduct Affecting the Results of [both of] the Elections,
and on May 5, 1969, the Regional Director issued a
Consolidated Supplemental Decision on Challenges and
Objections in which he overruled some of the Union's
objections, and concluded that a hearing was required to
resolve the remaining objections and the merits of the
Union' s challenges to five voters. On May 7, 1969, the
Regional Director issued an Order consolidating the two
representation cases with the complaint of unfair labor
practices for the purpose of hearing, ruling, and decision.
Pursuant to due notice, a hearing on these consolidated
cases was held before me at Newport, Vermont, on June
10, 11, 12, and 13, 1969. Upon the entire record, and my
observation of the witnesses and their demeanor, and after
due consideration of the briefs filed by the General
Counsel and the Respondent, I make the following:
FINDINGS OF FACT
1. COMMERCE
Columbia is a Vermont corporation located at 32
Central Street, Newport, Vermont, which is engaged in
the business of manufacturing and selling ladies' dresses,
and admittedly is principally owned and directed by its
president, Acacio Guerra. Guerra Garments is a
copartnership engaged in the same business as Columbia
and located on the floor below it which assertedly is
owned in equal shares by Acacio Guerra and his
"brother-in-law" Roland Barber,' and admittedly is
managed and directed by Guerra. Island Pond Mfg. Co. is
the trade name for a third ladies' dress manufacturing
business located at Island Pond, Vermont, which started
in business in March 1969, and assertedly is wholly owned
by Barber, and clearly is both managed and directed by
Guerra, if not also owned by him and/or his mother.3
During the hearing, the Respondent stipulated, after the
foregoing testimony was adduced, that for the purpose of
these proceedings, all three companies constitute a
single-integrated employer within the meaning of the Act.
In the light of that stipulation, and since the answer as
amended at the hearing admits that both Columbia and
'The Petitioning Union failed to receive a majority of the votes cast in
either election There were, however, a substantial number of challenged
ballots in both elections , and in the case of Guerra Garments, these
challenges were sufficient in number to affect the outcome of the election
'Barber is the husband of Guerra' s wife 's sister.
'Barber 's asserted half ownership of Guerra Garments and sole
ownership of Island Pond was testified to by Guerra However, Guerra
admitted : that Barber supplied no capital or any other consideration for his
alleged interest in these businesses; that Barber has "difficulty speaking
English"; that Barber has no knowledge of the business and is employed by
Columbia as a "trainee supervisor" learning the business, that although
Barber assertedly owns Island Pond, he spends very little time there and
receives no compensation from that company; that Barber does not sign
checks for any of the three companies ; that Guerra 's mother owns the
machinery and equipment at Island Pond and receives a weekly salary
therefrom ; and that Guerra secures the business for that company (as well
as for the other two ), repairs its machines , and advises his mother
regarding "the flow of the work ," " problems," and "new styles and
everything ." In addition, Guerra admitted that the business at Island Pond
was started because his "family" sold a factory in Massachusetts and the
equipment owned by his mother "had to be removed," that "they asked
me if I can use it." and that he replied , "Well, I will start a factory at
Island Pond. [Emphasis supplied .]" I conclude from the foregoing, and my
lack of regard for the reliability of Guerra 's testimony, that Barber's
titular ownership, if any, of Guerra Garments and Island Pond was merely
as steward and alter ego for Guerra, and that the latter also dominated
and managed the three businesses
ACACIO GUERRA, COLUMBIA CASUALS, INC. 743
Guerra Garments manufactured and shipped products
valued at more than $50,000 annually from Vermont to
points outside the said State, I find that all three
companies, and Acacio Guerra, individually,' constitute a
single-integrated employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges and [ further find that the Union
is a labor organization within the meaning of Section 2(5)
of the Act.
111. THE UNFAIR LABOR PRACTICES
A. Background
In March 1968, the Union began a campaign to
organize the employees of Columbia. Thereafter, as found
by the Board,' Guerra, Individually, and Columbia
engaged in the following unfair labor practices to
discourage union membership and support: coercively
interrogating employees regarding their union sympathies;
soliciting employees to withdraw from the Union;
threatening employees with plant closure if they selected
the Union to represent them; promulgating and enforcing
a rule which prohibited employees from soliciting union
membership on company premises during nonworking
time; and discharging two employees because of their
activities in support of the Union.
B. The Discriminatory Termination and Refusal to
Reemploy Gladys Lawson
Gladys Lawson was hired by Guerra to work as a
sewing machine operator for Columbia in August 1965.
Prior to that employment, she had worked in the garment
industry since 1953. During her employment by Columbia,
Mrs. Lawson received three merit increases. On March
22, 1968, Guerra fired Mrs. Lawson, but he reinstated her
on April I, 1968. Lawson's discharge was alleged in the
earlier unfair labor practice case against Guerra and
Columbia to be a violation of Section 8(a)(3) and (1) of
the Act. Lawson testified in that case in July 1968 as a
witness for the General Counsel. Subsequently, on
January 9, 1969, the Board, affirming the decision of the
Trial Examiner, found that Guerra and Columbia had
fired Lawson because of her activities in support of the
Union, and ordered them to make her whole for the loss
of pay she suffered as a result of that discrimination.
In August 1968, about a month after Lawson testified
in the prior case, Guerra engaged in further harassment of
Lawson.' According to Lawson's credited testimony which
was not controverted by Guerra, on August 12, 1968,
Guerra accused Lawson without cause of going to the
restroom five or six times a day when in fact she was
doing so two or three times a day. Guerra instructed
Lawson to confine such visits to coffeebreak time. There
was then only one 10-minute coffeebreak each day.'
'Mount Hope Finishing Company, 106 NLRB 480, 497-499,
enforcement denied on other grounds 211 F.2d 365 (C.A. 4)
'Acacia Guerra , Individually and Columbia Casuals , Inc., 174 NLRB
No. 13.
'In the earlier case , the Board , affirming the Trial Examiner , found that
Guerra had harassed Lawson in violation of Section 8 (a)(I) of the Act.
'Two days later, Guerra also argued with Mrs. Lawson about the
sequence in which she was performing her work of setting collars and
On November 1, 1968, Mrs. Lawson went out of the
shop during lunch hour, received a supply of union
literature from Celesta Britch, a former employee of
Guerra's, brought the leaflets back into the shop, and
distributed them among the employees 8 At that time,
Guerra was standing at the front of the shop and observed
what Lawson was doing, but made no comment.' That
same afternoon about 2.50 two other employees who
performed the same sewing operations as Lawson (setting
collars and facings), finished their work on the style of
dresses on which all three were working, and were
assigned to do like work on another style of dresses.
However, when Lawson finished her assignment 10
minutes later at 3 p.m , she was told by Floorlady Sadie
Keement that there was no further work for her and that
she would be called back when she was needed I" Lawson
was never called back to work. She thereafter made four
attempts to be reemployed by Guerra with the following
results.
1. On November 14, 1968, Mrs Lawson telephoned
Floorlady Keement and asked her whether there was any
work for her and received a negative reply.
2. In December, Lawson again asked Keement whether
any work was available for her and was told there was
none.
3 In January 1969, which admittedly is "the busy
season,"" Mrs. Lawson telephoned the plant and asked
for Guerra, was told by Inspector Judd that he was right
there, heard Guerra's voice (which she recognized) talking
to someone and laughing, but he did not come to the
telephone. Lawson replaced the receiver after waiting 5
minutes and called the plant again about a half hour later.
This time, the telephone receiver was simply removed
from its cradle at the plant and no one spoke to her.
Lawson again heard Guerra talking and laughing and she
once more gave up the attempt to reach him At 10:30
a.m., Lawson called the plant for the third time that day.
Mrs. Agnes Parker, the bookkeeper, answered the
telephone, and Lawson asked to speak to Guerra. On
Parker's insistence to know who was calling, Lawson
identified herself and was told that Guerra was out of
town. She then asked that Guerra call her at his
convenience, but he never returned the call.
4. In February 1969, at the suggestion of the Vermont
Department of Employment Security, Lawson,
accompanied by Celesta Britch and the latter's sister,
facings, and instructed her to do the work in a manner which required
handling each dress three times instead of once . When Lawson then
complied literally with Guerra's instruction , he accused her of "trying to
give [him] trouble "
'Similar union leaflets were being distributed outside the shop that noon
by Mrs Britch and Alvina Loiselle , an employee of Guerra who worked
for Columbia
'The finding that Guerra was present at the front of the shop when the
leaflet distribution occurred is based on the credited testimony of Lawson
and Loiselle who saw him there. Guerra denied seeing Lawson or any one
else passing out union literature that day, but I do not believe his
testimony in this or in any other controverted respect for the following
reasons His demeanor on the witness stand was one of indifference and
boredom with the proceedings His answers to questions were frequently
vague , evasive, and not responsive In addition , he asserted a lack of
memory of many matters which obviously were within his knowledge I
regard his testimony as generally unreliable and credit it only when it
constitutes an admission against interest or confirms other testimony which
I regard as reliable
"The workday at Columbia usually ended at 3.30 p in
"Floorlady Keement, a witness for Respondent , admitted on
cross-examination that the busy season starts right after Christmas and
gets into full swing in January.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visited the Columbia plant and she and Mrs. Britch asked
Guerra if there was any work for them. Guerra replied
that there was none at the present, but that "we will call
you as soon as Sadie [Keement] needs someone.""
According to Guerra, Lawson was laid off, and not
discharged, on November 1, 1968, and the only reason
therefor was "lack of work." There is no evidence that
Lawson's work during her 3 years of employment for
Guerra at Columbia was other than satisfactory. In the
light of Guerra's testimony that Columbia first started in
business in 1965, Lawson was one of its most senior
employees. Moreover, as previously noted, she had a total
of 15 years' experience in the garment industry. When
Lawson was laid off, the two employees who were
working at the same operation as she (Silverine Wright
and Hazel Curter) were retained, notwithstanding they had
less seniority than she. Indeed, according to Lawson's
undenied credited testimony, Curter had worked for
Guerra not more than 6 months. During her employment
by Columbia, Lawson had performed many operations,
including darts "and all the operations in the shop except
the special machines." For the last year and one half, she
had been working only on setting collars and facings, and
occasionally on zippers, all of which concededly were
operations to which only more experienced operators are
assigned . After Lawson's layoff, Guerra admittedly hired
new employees to perform sewing operations which
Lawson had previously performed capably.
All of the foregoing, including the timing of Lawson's
layoff on the very day she distributed union leaflets in the
plant, Guerra's animosity towards and opposition to the
Union, Lawson's previous discharge because of her union
activities, the retention of less senior employees when
Lawson was laid off for lack of work, the subsequent
hiring of new employees to perform work which Lawson
was capable of performing, the absence of any plausible
explanation for not recalling Lawson (if indeed there was
no work for her at the time of her layoff), and the
runaround she received when she attempted to secure
reinstatement , establish a strong and persuasive prima
facie case that the termination and refusal to reinstate this
capable, experienced employee were motivated by
antiunion considerations.
According to Guerra, Lawson was only I of 60
employees who were laid off for lack of work in
November at or about the same time. Floorlady Keement
similarly testified that Lawson was laid off because "there
wasn 't any work," that other employees were laid off
during November for the same reason, and that the layoff
progressed until "there were only three or four working at
the machines." No payroll records or other documentary
evidence, obviously available, was offered by Respondent
to support the testimony of Guerra and Keement in this
regard. To the contrary, a stipulated summary of the
payroll records of all the employees who, according to
Keement, worked at setting collars and facings at the time
Lawson was laid off discloses that other than Lawson,
there was in fact no layoff of any such workers until 7
weeks later during the week ending December 21, 1968,
when most, but not all, were out for a period of I to 2
weeks. The summary also disclosed that all of them,
except Lawson, resumed working full time during the
week ending January 4, 1969, and worked continuously
thereafter." In the light of the foregoing, it is obvious that
"The findings above in respect to Lawson' s attempts to secure
reinstatement by Guerra are based on her credited, uncontroverted
testimony.
no credence can be placed either in the testimony of
Guerra or Keement that "lack of work" was the reason
for Lawson's termination on November I, 1968, or in
their testimony that her termination was a part of a
general layoff for lack of work at that time. I conclude
from the foregoing that the reason asserted by Respondent
for Lawson's termination is a transparent pretext to
conceal the real reason therefor.
The real reason for Lawson's termination is fairly
obvious from the record herein. Guerra was unalterably
opposed to the representation of his employees by the
Union. Lawson was a leading union advocate and had
been discharged by Guerra once before because of her
union activities. She was terminated for the second time
on the very day, November I, that union organizational
activities resumed and she distributed union leaflets to the
employees in the plant, and was observed doing so by
Guerra. I conclude from all the foregoing that Lawson's
termination was motivated by her union activities, and
that thereby the Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (I) of
the Act.''
I am further persuaded by the record that contrary to
Guerra's and Keement's testimony that Lawson's
termination was a temporary layoff for "lack of work," it
was in fact a permanent discharge with no intention of
rehiring her. In this regard the record discloses that
notwithstanding Lawson's repeated attempts to secure
reinstatement previously described, she was never rehired,
but that all of the other collar setters who were laid off
for lack of work 7 weeks after Lawson, were recalled to
work in l or 2 weeks, and thereafter worked continuously.
Moreover, Keement admitted that as of 3 weeks before
the hearing in this case, the Respondent employed two
more collar setters than when Lawson was terminated."
When asked why, in the light of the admittedly subsequent
availability of work, Lawson was never recalled, Keement
testified, " Because I wasn't told to," and that she "called
nobody back unless Mr. Guerra told me to." On the other
hand, it is significant that when Guerra was asked the
same question , he first evasively testified that Lawson was
not recalled to work because "we have sufficient help,
good, productive help," and then that it was because "I
don't think Mrs. Sadie Keement has ever asked me to call
her back to work." There is no evidence that Lawson's
work was other than "good" and "productive." Moreover,
as owner and principal operating manager of Columbia, it
is obvious that Guerra required no request from Keement
or anyone else to know and fill his personnel needs.
"The findings above are based on the stipulated correct summary of the
Respondent 's payroll records of Silverme Wright, Hazel Curier, Betty
Lacourse, Susie Hodgden, Rose Blais, Angeline Lessonde , and Alice
Hinton , who, according to Keement's testimony , were all the employees
who did collar setting and facings when Lawson was terminated
"See Shattuck Denn Mining Corporation v. N.L R B , 362 F.2d 466,
470 (C A 9), where the court aptly stated.
Actual motive , a state of mind, being the question, it is seldom that
direct evidence will be available that is not also self-serving In such
cases, the self-serving declaration is not conclusive ; the trier of fact may
infer motive from the total circumstances proved Otherwise no person
accused of unlawful motive who took the stand and testified to a lawful
motive could be brought to book . Nor is the trier of fact - here the
trial examiner - required to be any more naif than is a judge. If he
finds that the stated motive for a discharge is false , he certainly can infer
that there is another motive . More than that , he can infer that the
motive is one that the employer desires to conceal---an unlawful
motive---at least where , as In this case, the surrounding facts tend to
reinforce that inference. [Emphasis supplied.]
"Florence Laframboise and Mary Carron.
ACACIO GUERRA, COLUMBIA CASUALS, INC. 745
I am persuaded by the foregoing that no plausible or
credible reason has been furnished for the failure to
reemploy Lawson, and conclude therefrom that her layoff,
allegedly for lack of work, was at all times intended by
Guerra to be a permanent termination of her employment.
For all the foregoing reasons, I find that the refusal to
reemploy Lawson, like her earlier "layoff," was motivated
by her union activities, and that the Respondent thereby
engaged in further unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
C. The Discriminatory Discharge of Vivian Farrar
Vivian Farrar was hired by Guerra in April 1968, and
originally was assigned to work for Columbia. After 2
months, she was transferred to Guerra Garments where
she set collars, sewed on facings, and repaired defective
collars. According to Farrar's credited testimony which
was not controverted, Guerra complimented her work a
number of times, told her she was a good worker, and
asked her to recommend for employment anyone she
knew who was as good as she. In addition, just before
Christmas in 1968, Guerra offered Farrar a promotion to
the position then held by Florida Turcotte, "the quality
control supervisor," but she declined the offer.
On February 27, 1969, about 26 employees of
Columbia and Guerra Garments attended a meeting called
by the Union in connection with its organizational
campaign and the impending Board elections. Farrar was
one of those who attended this meeting. During its
progress, several employees stated that they "needed the
work very badly," that they were afraid to express an
opinion favorable to the Union because they were afraid
that Guerra would close the shop, and that they would
lose their jobs if the Union won the election. Mrs. Farrar
replied that the employees should not be afraid, that they
would be better off with the Union because they would
make more money, that she believed in the Union, and
that there was no reason to fear that the shop might close
if the Union won because there were plenty of other job
opportunities available."
Faye Digesse and Annette Cabana are two Columbia
employees who drove together to the union meeting in
Digesse's car. Both of these employees admittedly are
"fairly close friends" of Floorlady Sadie Keement, and,
according to the credited testimony of Alvina Loiselle,
Digesse and Cabana are also two of a group of five
employees with whom Guerra is "very friendly" and
frequently talks and banters." According to the credited
testimony of Celesta Britch, during the union meeting,
Digesse expressed her opposition to the Union as follows:
"I know how the unions operate, and I want no part of
them." Britch also credibly testified two of Guerra's other
favorites, Messier and Lacourse, also made derogatory
remarks about the Union during the meeting. At the
conclusion of the meeting, as Digesse, Cabana, Lacourse,
Messier, and another employee stood together in the entry
way "where the girls hang their coats," Digesse exhorted
the others in the group named above to "hurry up,"
because she had "to call Sonny."' °
"The findings above are based on a composite of the credited testimony
of Mrs . Farrar , Gladys Lawson , Audrey Benway, and Celesta Britch,
whose testimony in this regard was substantially corroborated by Annette
Cabana , a witness for Respondent.
"The other three of this group of Guerra 's favorites are Betty Lacourse,
Bernice Messier , and Mrs . Morin.
"Sonny was the nickname by which Guerra was known to most of his
employees . The findings regarding Digesse 's statement at the conclusion of
On the following day, February 28, 1969, Farrar's
statements at the union meeting were the subject of
conversation of "everybody in the shop."" Moreover,
Digesse testified that although she did not remember, on
the day after the union meeting, she might have
mentioned to Guerra what happened at the meeting.
Digesse also admitted that she might have discussed what
transpired at the meeting with Floorlady Keement at the
morning coffeebreak on the day following the meeting.'" I
conclude from all the foregoing, including the relatively
small number of employees who worked in Guerra's shops
and his close association with them as evidenced by their
reference to him as Sonny, that Guerra acquired
knowledge on the day after the union meeting that Farrar
had exhorted employees to support the Union, and had
said the night before that the employees should not be
deterred from supporting the Union by a fear that Guerra
might close the shop, since they and she could find ready
employment elsewhere.
Guerra has no rule which prohibits his employees from
conversing during working hours, and in fact, it is quite
usual for employees to engage in conversation while
working." In addition, according to Farrar's
uncontroverted and credited testimony, Guerra specifically
instructed her to consult with Audrey Benway or Idel
Bonneau (who worked alongside her) whenever she
encountered trouble with her work. Farrar further credibly
testified that during her "whole year" of employment by
Guerra, she had neither been told that she talked too
much, nor warned not to do so.
the union meeting are based on the credited testimony of Gladys Lawson,
Celesta Britch , and Alvina Loiselle Digesse, a witness for Respondent,
denied making the above statement , and she also denied calling Guerra
"that night ." I do not credit Digesse's denial that she made the statement
attributed to her by the credited witnesses for the following reasons: Her
testimony , generally, was neither frank nor forthright , her responses to
questions were frequently evasive and occasionally self-contradictory, and
her demeanor was one of hostility and contempt for these proceedings. I
regard her testimony in this and most other respects as unworthy of
reliance I deem it unnecessary to resolve the credibility of Digesse's
testimony that she did not call Guerra "that night," for as found
hereinafter , I am persuaded by the record that he obtained knowledge of
the statements made at the union meeting the next day Cabana, the only
other witness called by Respondent to refute the testimony credited above,
testified only that she did not hear Digesse make the statement , that she
left the meeting with Digesse, and that Digesse did not call Guerra while
the two of them were together that night Although I regard Cabana's
testimony as likewise generally unreliable, I consider it unnecessary to
discredit her testimony in this respect because it does not constitute a
denial that Digesse made the statements which the credited witnesses
attributed to her
"The quotes are from the testimony on cross-examination of Annette
Cabana who is credited in this regard
"Digesse later specifically denied that she told Guerra or Keement what
Farrar said at the union meeting , but I regard her specific denials as
unworthy of credence in the light of her prior contradictory testimony of
lack of memory , her concession that she might have told Guerra and
Keement what happened at the meeting, her quite apparent friendship with
Guerra, his mother , and Keement, and her obvious opposition to the
Union as evidenced by her statements at the meeting As the Supreme
Court said in N L R B v Walton Mfg. Co, 369 U S 404, 408, quoting
with approval from the opinion of Judge Learned Hand in Dyer v
MacDougall, 201 F 2d 265, 269 (C A 2)
For the demeanor of a witness
. , may satisfy the tribunal , not only that the witness ' testimony is
not true , but that the truth is the opposite of his story ; for the denial of
one, who has a motive to deny, may be uttered with such hesitation,
discomfort , arrogance or defiance , as to give assurance that he is
fabricating , and that, if he is, there is no alternative but to assume the
truth of what he denies
"The foregoing is based on the credited testimony of Audrey Benway
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the day following the union meeting, Farrar worked
as usual at "setting collars and putting on facings" on
dresses Audrey Benway and Idel Bonneau were doing
similar work at their machines which adjoined Farrar's.
Vivian Brown, the floorlady at Guerra Garments, had
delivered mixed up bundles of work to these three
employees, and as a consequence, the three of them "had
to talk back and forth" to ask whether the other two had
the size and facings which they needed. That afternoon,
Guerra came over to Farrar's machine while she was
working and said he wanted to talk to her. She got up and
walked with Guerra a short distance from where she
worked Guerra then said according to Farrar's credited
testimony that "he was sorry [for] what I did because he
had big plans for me in five or six years," and that "I am
talking too much." Guerra did not explain that he was
referring to talking while working, and Farrar testified
that she "knew it was on account of the [ union] meeting
[the night] before because, gosh, I was there a whole year,
and he never said anything." That ended the conversation
between Guerra and Mrs. Farrar and she returned to
work.
Later that day, Mrs Vivian Brown, the floorlady, told
Farrar "not to come in Monday" Farrar asked Brown
whether she was fired or not, and Brown replied, "Just
don't come in until further notice " When Farrar further
questioned Brown, the latter said, "I don't know nothing
[sic] else. You will have to ask Sonny." Farrar then went
upstairs to Columbia's premises and asked Guerra "if he
was just laying me off" or "just firing me " Guerra
answered, "No, dust don't come back until further notice "
Still uncertain of her status, Farrar asked Mrs. Agnes
Parker, the bookkeeper, to check with Guerra, and after
going upstairs, Parker returned and informed Farrar that
"I was just laid off until further notice." Farrar later
learned that she had been fired when she applied for
benefits to the Vermont Department of Employment
Security.
Guerra first testified that he fired Farrar for "too much
conversation " He then amplified his answer and testified
that he fired her for "too much conversation which
affected - which resulted in no production," and that
"she was talking all day, in other words; and she produced
nothing." When then asked whether he fired Farrar for
talking too much or for not producing, Guerra answered,
"For not producing." He further testified that he did not
care if she talked provided that she produced "and it
didn't affect the work of the other individuals."
Guerra admittedly maintains no production records.
Although he testified that he "thinks" he warned Farrar
three times about poor production, he was unable to state
even approximate dates when he assertedly gave her these
warnings and he testified that he did not know whether
her production picked up after the alleged warnings. As
previously noted, I regard Guerra's testimony as generally
unworthy of reliance, and in the light of Farrar's
undenied, credited, testimony that she had been
complimented for her work a number of times and had
been offered a promotion about 2 months before her
discharge, I do not believe Guerra's vague testimony of
prior warnings for poor production. Moreover, as
and Alvina Loiselle The only witness to the contrary was Annette Cabana
who testified that "we are not supposed to talk when we work " However,
I do not credit Cabana 's testimony in this regard because for demeanor
and other reasons, I regard her testimony as generally unworthy of reliance
and because in this respect, Guerra conceded that he is not concerned with
conversation by the employees , as long as it does not interfere with
production
previously noted, I have credited Farrar's testimony that
she had never been told by Guerra that she talked too
much nor warned not to do so.
According to Guerra, the immediate events which
motivated his decision to discharge Farrar were as
follows. On February 28, 1969, the date of Farrar's
termination, Guerra was notified by Floorlady Vivian
Brown that Farrar was "constantly conversing
continually." Guerra told Brown to count her work, and
assertedly was informed that she had set only 18 collars in
a period of 7 1/2 hours. Guerra then assertedly told Mrs.
Turcotte, the quality control supervisor, to time the
operation and it allegedly took her "four minutes a
garment." Guerra testified that he then told Farrar "that
there was too much conversation on her part and to please
cut it out." He further testified that Farrar "went back [to
work] and she continued talking," and he decided to fire
her.
It is, of course, obvious that if Farrar was discharged
by Guerra, for poor production, for excessive
conversation, or for any reason other than union or
protected, concerted activities, her discharge would not
violate the Act. However, I do not believe the reasons
asserted by Guerra for Farrar's termination. My grounds
for so concluding are as follows.
1. Floorlady Brown, although a witness in this
proceeding, was not asked by Respondent to corroborate
Guerra's testimony regarding either Brown's alleged
complaint that Farrar was talking constantly, or regarding
her alleged count on February 28, 1969, of Farrar's
production. The Respondent also failed to call Quality
Control Supervisor Florida Turcotte to corroborate
Guerra's testimony that she had "timed the operation"
that day. No explanation was offered for the failure to
present this obviously available testimony Moreover,
since the full working day for Guerra's employees was 7
1/2 hours, and, according to Guerra, the alleged count of
Farrar's production was made during the course of the
working day and before its termination, it is obvious that
no reliance can be placed in his uncorroborated testimony
that Farrar set only 18 collars during a period of 7 1/2
hours. I infer from all the foregoing, the absence of
comparative, or indeed, any production records, and from
my lack of regard for Guerra's veracity, that Brown and
Turcotte, if called and/or asked, would not have
corroborated Guerra's testimony in this regard 22
2. Although Guerra concededly was unconcerned with
conversation as such, and only with that which interfered
with production, he nevertheless told Farrar only that she
was talking too much and made no reference to her
allegedly poor production. I infer from the foregoing, and
from the fact that there was no rule which prohibited
talking, that when Guerra told Farrar on February 28,
1969, that she talked too much, he was referring to her
statements at the union meeting the night before
3. Farrar was not told by Guerra, Brown, and Parker
that she was being fired, but only that she was being laid
off. This, in the light of Guerra's latter statements to the
Vermont Department of Employment Security, was false.
Moreover, no reason was given to Farrar for any
termination of her services at that time. No explanation
was offered for the failure to forthrightly tell Farrar that
she was being fired and the reason therefor. These
circumstances suggest that the reasons later asserted are
"See 2 Wigmore, Evidence Section 285 (3d ed .), Whnin Machine
Works, 100 NLRB 279, 285, Hilma H. Erikson and Erik E Erikson
d/b/a Detroit Plastic Products Company, 121 NLRB 448, 499
ACACIO GUERRA, COLUMBIA CASUALS, INC.
afterthoughts which are unworthy of credence."
4. There is no evidence that Farrar's conversations
interfered with the work of other employees. To the
contrary, Audrey Benway, who worked alongside her,
credibly testified, without contradiction, that on the day
Farrar was discharged, she did not talk with her any more
"than usual," that Farrar's conversation pertained
"mainly about our work," that it is customary for
employees to converse while they are working, and that
Farrar's conversations never bothered her or interfered
with Benway's performance of her work. Benway also
credibly testified that Farrar "did very good work."',
5. Finally, I am persuaded that the reasons asserted for
Farrar's termination are unworthy of credence in the light
of her undenied and credited testimony that she was
complimented on her work and offered a promotion only
2 months earlier.
The real reason for Farrar's discharge is not difficult to
infer, especially in the light of the pretextual, discredited
reasons asserted therefor." On the day preceding her
discharge, Farrar had espoused the Union's cause, and
had urged employees support the Union and not to fear
discharge or a shutdown by Guerra of his plant. Guerra
was opposed to the representation of his employees by the
Union. As found above, Farrar's statements at the union
meeting came to Guerra's attention on the next day when
it was the subject of discussion by everyone in the shop.
Farrar, a satisfactory employee until then, was discharged
the same day without any reason being given to her.
Indeed, she was falsely told that she was only being laid
off. I conclude from all the foregoing that Farrar's
termination was motivated by her support of the Union
and Guerra's opposition thereto. Accordingly, I find that
thereby, the Respondent engaged in further unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.i6
D. Interference, Restraint , and Coercion of
Emplo vees
Paragraph 30 of the complaint in this case contains 12
subparagraphs of conduct allegedly engaged in by
Respondent in violation of Section 8(a)(l) of the Act.
Each of these allegations will now be considered:
30.(a) This subparagraph alleges that on November 1,
1968, Guerra engaged in surveillance of the union or
protected concerted activities of his employees. The only
testimony which conceivably could support this allegation
of the complaint was that on the day in question, Guerra
stood near the doorway of his plant during the employees'
lunch hour and observed the distribution of union leaflets
on the sidewalk and in the plant. In the light of the open
nature of the distribution, and its situs, I cannot perceive
how Guerra's observation of this event could possibly
constitute unlawful surveillance." I therefore will
recommend dismissal of this allegation of the complaint.
"KraJewski Manufacturing Co, Inc. v N.L R B., 413 F.2d 673 (C A
I)
.It may be noted in this regard that at the hearing on Farrar 's claim for
benefits before the Vermont Department of Employment Security, the
referee's decision states that three coworkers of Farrar ( Benway, Bonneau,
and Rose Blais) testified that her "talking had never affected their
production," and that she produced "as much work as the majority of
other workers ." G. C. Exh. 3.
"Shattuck Denn Mining Corporation Y. N L R. B. supra.
"Krajewski Manufacturing Co.. Inc. v. N.L R B, supra
"Dumas, Inc. d/b/a Sterling Manufacturing Company, 169 NLRB No.
126; Milco, Inc., 159 NLRB 812, 814.
747
30.(b), (c ), (g), and (j) These subparagraphs of the
complaint allege that between January 1969, and on or
about March 10, 1969, Respondent violated Section
8(a)(I) of the Act, by Guerra's threats to employees of
discharge , plant closure, and the possible relocation of his
operations to another , more distant , site, if the Union won
the impending election , and by transferring and moving
equipment and employees from Newport to Island Pond,
Vermont . The record in respect to these allegations
discloses the following:
The Union filed its separate petitions for designation as
the representative of the production and maintenance
employees of Columbia and Guerra Garments on
December 30, 1968. Immediately thereafter , in January
1969, Guerra started setting up another factory to make
ladies' dresses at Island Pond , Vermont In connection
with the commencement of operations at Island Pond,
Guerra moved machinery and equipment owned by his
mother from a plant in Massachusetts to the new factory
site about the middle of January 1969,28 and promoted
Vivian Brown to the position of floorlady at Guerra
Garments for training in anticipation of her assuming like
duties at Island Pond.
According to the credited testimony of Alvina Loiselle,
in the latter part of January 1969 or early in February,
she heard Guerra on different occasions tell some of the
employees , "he could close the shop if the union came
in," that "he had a shop in Island Pond [and] could
always go there, take his work there," and that, "he
would hire [a] new bunch of girls to get rid of them."29 In
the context of the preparations then being made by
Guerra for the opening of the new plant at Island Pond, it
is quite evident his statements to the employees conveyed
to them a threat of the loss of jobs if they designated the
Union as their representative at the impending election I
therefore find and conclude that the Respondent thereby
interfered with, restrained , and coerced employees in the
exercise of rights guaranteed by Section 7 of the Act, and
thus engaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
On an undisclosed date after making these threats,
Guerra advertised in the newspaper for applicants for
employment at the new site, and later on about March 15,
1969, when operations actually began at the new factory,
transferred some employees from Columbia and Guerra
Garments to work at Island Pond . 90 In addition, when
operations at Island Pond commenced , bundles of work
which were at Columbia ' s premises at Newport were
transferred to Island Pond . Although this, according to
the credited testimony of Loiselle, created speculation
among the Newport employees as to where the work had
gone , it admittedly did not cause any loss of employment
for the employees of Columbia."
"See fn 3, supra There is no evidence that any machinery or equipment
was moved from Newport to Island Pond.
"Guerra denied that he ever in 1969 threatened employees with "closing
the shop," or "taking work away ," but I regard his denials as unworthy of
belief and do not credit them
"According to the undenied and credited testimony of Alvina Loiselle,
among the employees so transferred were Faye Digesse, Janet Bowen,
Vivian Brown, Monique and Josie Lavallee , and Mrs. Landry and her
young daughter. There is no testimony that any of these employees was
requested or compelled to transfer against her will, and it is not alleged or
contended that the Respondent violated Section 8 (a)(3) of the Act by
transferring employees.
"Guerra admitted that when the Island Pond plant started , bundles of
work were transferred from his Newport plants to Island Pond, but he
explained that this was Island Pond work that was delivered to Newport
because his carrier did not then have an ICC franchise to deliver in Island
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Notwithstanding that no machinery or equipment was
transferred to Island Pond from Guerra's Newport plants,
and no evidence that employees were transferred to the
new plant against their will, there remains for
consideration the question of whether the Island Pond
plant was opened for the purpose of discouraging and
dissuading the employees at Columbia and Guerra
Garments from supporting the Union at the impending
elections
Guerra testified that the reason he opened the new shop
at Island Pond when he did was that the town had no
industry, there was "a tremendous labor force" available
there which was "being wasted," and that his family "had
to remove" the machinery and equipment from the
factory which they had sold in Massachusetts. I regard
Guerra's testimony about his reasons for starting up the
Island Pond shop when he did as unworthy of credence,
and conclude that its timing was motivated by antiunion
considerations I base these conclusions on the following.
As previously noted, I regard Guerra's testimony as
generally unworthy of credence The installation of the
machinery and equipment at Island Pond commenced in
January 1969, immediately after the Union filed its
petitions with the Board to represent the employees of
Columbia and Guerra Garments. Although this allegedly
was based on a need to remove the machinery and
equipment from the Massachusetts plant, no documentary
evidence, which Guerra admitted was available, was
offered to show when that plant was sold. But even
assuming that the sale of the plant in Massachusetts
coincided in time with the filing of the Union's
representation petitions, it does not follow that Guerra
thereby needed to start a new plant merely because the
machinery and equipment "had to be removed." For
example, no explanation was offered why the machinery
was not either sold or utilized in Guerra's existing plants.
Moreover, there was no evidence of any shortage of an
available labor force in Newport, and I am satisfied from
my appraisal of Guerra while testifying, that he was not
motivated by civic virtue to provide employment
opportunities for the residents of Island Pond
Guerra's real purpose for opening a new plant at Island
Pond is fairly inferable from the record His motive is
disclosed by his threats to the Newport employees that if
the Union won the elections at Columbia and Guerra
Garments, "he could take his work to Island Pond," and
by the timing of the opening of the new plant at Island
Pond on or about March 15, 1969, less than 2 weeks
before the scheduled Board elections at Columbia and
Newport.32 It is also significant in this regard that when
Guerra had only the Columbia plant, and the Union
commenced organizing those employees in March 1968,
Guerra then similarly set up and started the operations of
Guerra Garments and threatened the Columbia employees
with plant closure."
I conclude from all the foregoing that Guerra's purpose
in opening the new plant at Island Pond when he did was
to dissuade employees of Columbia and Guerra Garments
Pond I credit his undenied explanation in this regard.
"Guerre 's arrangement with his landlord at Island Pond was that he
would pay no rent until manufacturing operations commenced A delay of
an additional 2 weeks before starting production would thus have cost
Guerra nothing additional In the light of the foregoing , the starting of
operations at the new plant on March 15 and the transfer of employees
from Newport to Island Pond just before the elections quite clearly was
intended to convey to the employees just before they voted that Guerra was
now able to carry out, if necessary , the threats which he had made earlier
"Acacio Guerra . Individually and Columbia Casuals , Inc , supra
from supporting the Union at the impending Board
elections, and that Respondent thereby engaged in further
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
30.(d), (e), and (f) These subparagraphs of the
complaint allege that Guerra personally, and through his
agents, Fay Digesse, Bernice Messier, Betty Lacourse,
Annette Cabana, and Idell Bunnell, engaged in
surveillance of the union meeting of February 27, 1969,
and created the impression that the union activities of the
employees were under surveillance. The five-named
employees are rank-and-file sewing machine operators of
Columbia and Guerra Garments, and not supervisors. It is
undisputed that all five attended the union meeting in
question
The only testimony to support the allegation that their
attendance at the meeting was as Guerra's agents is that
of Alvina Loiselle (which is credited), that on the day of
the meeting, she heard Guerra say to these employees,
"Well, girls I suppose you will be going to the meeting,"
and that he then laughed.90 Loiselle further credibly
testified that on the day following the union meeting, she
saw Guerra laughing and talking with the same girls, but
she gave no testimony that she heard what was said
between them.
Both Digesse and Cabana, the only two of the alleged
"agents" of Guerra who testified, denied that they went to
the union meeting at his request. In addition, Guerra
similarly denied, not only that he asked any employee to
attend on his behalf, but also that he was even in town on
the day of the union meeting.
Although, as previously noted, I regard the testimony
of Guerra, Digesse, and Cabana, as generally unworthy of
credence, and notwithstanding my finding above that
Guerra acquired knowledge of the statements made and
what happened at the union meeting, I deem the
above-credited testimony of Loiselle as insufficient to
establish, either that the five-named employees attended
the union meeting at Guerra's request and/or on his
behalf or that these employees were designated by Guerra
as agents of Respondent in that regard. I therefore
conclude that the General Counsel has not established by
the requisite "preponderance of the testimony taken," that
the Respondent has engaged in surveillance of the union
activities of its employees, or in conduct which created the
impression of such surveillance , and I will recommend the
dismissal of those allegations of the complaint.
30.(h) This subparagraph of the complaint alleges that
Respondent violated Section 8(a)(1) of the Act by
"submitting a false and fraudulent voter eligibility list to
the Board's First Regional Office" on February 24, 1969.
The record in respect to this allegation of the complaint
discloses as follows.
"Guerra testified that he was not in Newport, but was in New York
City on February 27, 1969, and did not return to Newport until February
28 In attempted corroboration of this testimony , Guerra's counsel offered
in evidence the bill of a New York City hotel (Resp Exh 2), but it
disclosed on its face that he had checked out of the hotel on February 26
Guerra then testified that he checked back into the hotel because his return
flight was canceled because of inclement weather Guerra testified that an
additional hotel bill, which would disclose that he was in New York City
and not in Newport, Vermont, on February 27, 1969, was in the possession
of his accountant at the latter's office in Montpelier , Vermont At the close
of the hearing, Respondent was offered the opportunity of later submitting
and incorporating the assertedly missing hotel bill into the record as its
next exhibit However , as of this date, 2 months later, no such exhibit has
been offered . I infer therefrom that no such bill exists, and that Guerra's
testimony that he was in New York City on the day of the union meeting
is unworthy of credence
ACACIO GUERRA, COLUMBIA CASUALS,
On December 31, 1968, the Regional Office advised
Guerra by two letters that petitions had been filed by the
Union to represent the employees of Columbia and
Guerra Garments. The letters advised Guerra to submit
an alphabetized list of the employees described in the
petitions for the payroll period immediately preceding the
date of the letters, together with the job classifications of
said employees. The letters further advised that if elections
were later directed or agreed to, he would be required to
furnish the Board with additional lists of all the eligible
voters and their addresses within 7 days after such
direction or agreement.
On February 14, 1969, the Regional Director issued his
Decisions and Directions of Elections in the Columbia and
Guerra Garments representation cases. These Decisions
found and described the two separate appropriate units to
be all of the production and maintenance employees of
Columbia and Guerra Garments, and specifically excluded
therefrom "office clerical employees, professional
employees, guards and supervisors as defined in the Act."
The two Directions of Elections specified the employees
who would be eligible to vote as follows: "Eligible to vote
are those in the unit who were employed during the
payroll period immediately preceding the date below
(February 14, 1969) ." Footnote 5 of the Decisions
directed Guerra to furnish within 7 days election eligibility
lists with the names and addresses "of all the eligible
voters."
Notwithstanding the clear language of the Directions
of Elections which required that Columbia and Guerra
Garments furnish lists of the names and addresses of the
employees in the unit who worked for the respective
companies during the payroll period for the week ending
February 8, 1969,1 6 the lists which were submitted to the
Regional Office admittedly including the names of all
employees who had worked for the two companies at any
time between January I, 1969, and February 15, 1969,
whether or not they were still so employed on the latter
date. In addition the lists included the names of a number
of persons who quite obviously were not within the
appropriate unit. These included Mrs. Agnes Parker, the
bookkeeper who, as an office clerical employee, was
specifically excluded from the unit, Durwood Guerra, the
school age young son of Guerra who worked at Columbia
only sporadically, and Roland Barber , the brother-in-law
of Guerra and titular half owner of Guerra Garments and
asserted sole owner of Island Pond.36 In addition, the lists
submitted to the Regional Office contained the names of
five assertedly eligible employees who, as found below,
were all supervisors as defined in the Act. These five were
"Quality Control Supervisor" Florida Turcotte and
Floorladies Sadie Keement, Solange Vachon, Vivian
Brown , and Joyce Brien."
"This was the payroll period immediately preceding the February 14,
1969, date of the Directions of Elections.
"Columbia ' s payroll records for the only 3 weeks in evidence disclose
that Durwood Guerra did not work at all during the week ending February
8, 1969 , that he worked only 5 hours during the following weeks, and that
he did not work during the week of the election which ended on March 28,
1969. As previously noted (see fn. 3, supra), Barber admittedly was
employed by Columbia as a "trainee supervisor ," or "trainee manager,"
and his rate of pay was $2 per hour , 40 cents more than the rank - and-file
employees received During the course of the hearing , Respondent's
counsel stipulated that the Union's challenges to the votes of young Guerra
and Barber be sustained , but he refused to concede that they were
ineligible to vote . His latter concession obviously is not required As the
son of Columbia ' s president and principal stockholder , young Guerra had
no community of interest with the unit employees (even if he had worked
other than as a casual employee ), and he at no time was eligible to
INC. 749
Guerra admittedly is in his plants 2 or 3 days a week
and even then is not there all day. Guerra makes frequent
visits to New York City to obtain work for Columbia,
Guerra Garments, and Island Pond According to the
Consolidated Supplemental Decision on Challenges and
Objections in the representation cases, there were on the
date of the elections (March 25, 1969) 79 persons
employed by Columbia and 17 at Guerra Garments.
1. Florida Turcotte
At the time the eligibility lists were submitted, Florida
Turcotte was the "quality control supervisor" and she had
been so identified by Guerra to his employees both at
Guerra Garments and Columbia. Guerra had also so
identified Turcotte at the hearing on Mrs. Farrar's
application for unemployment compensation before the
Vermont Department of Employment Security According
to the credited undenied testimony of Gladys Lawson,
Guerra fired an employee (Mrs. Hilliker) because she
questioned Turcotte's authority to inspect her work, and
he testified in Hilliker's ensuing case for unemployment
compensation that she should have known that Turcotte
was quality control supervisor. Turcotte inspects the work
of employees both upstairs at Columbia and downstairs at
Guerra Garments while they are sewing. She tests
applicants for employment on their sewing ability before
Guerra hires them. Her rate of pay was $1.90 per hour, 30
cents more than the rate paid to all sewing employees I
find on these undisputed facts that she had authority to
effectively recommend hiring and firing, and thus clearly
was a supervisor as defined in the Act.
2. The four floorladies on the eligibility lists
Guerra employs only one floorlady at a time for
Columbia and one for Guerra Garments. When the
eligibility lists were submitted, Sadie Keement was the
floorlady at Columbia and Vivian Brown occupied that
position at Guerra Garments. However, before the date of
the elections, Brown had transferred to the same position
at Island Pond and was replaced at Guerra Garments by
Solange Vachon 98
The principal duty of the floorlady is to keep the
sewing machine operators supplied with work. According
to a composite of the testimony of the employees and the
floorladies to the extent credited, and subject only to
general instructions from Guerra regarding the style of
dresses which he wants the employees to work on, the
floorladies assign work to the operators, and on occasion
switch their assignments, report to Guerra if operators,
participate in the election Foam Rubber City 2 of Florida, Inc., d/b/a
Scandia , 167 NLRB No 81 Similarly, as the titular half owner of Guerra
Garments, "trainee supervisor " or "trainee manager" of Columbia, and
close relative of Guerra, Barber likewise had no community of interest
with the employees of Columbia and was ineligible to participate in the
election Banco Credito Y Ahorro Ponceno , 160 NLRB 1504, 1510-11,
Associated Electronic Enterprises , Inc, 80 NLRB 295, 297, 0 Philip
Faucher d/b/a Superior Bakery, 78 NLRB 1172, 1173
"Respondent 's counsel stipulated that the Union' s challenges to the votes
of Turcotte and Brown should be sustained He refused to stipulate,
however, that these two persons, or that any of the five named above, were
supervisors within the meaning of the Act.
"Joyce Brien previously had worked as a floorlady at Columbia, and
latgr had the same position at Guerra Garments, but she went on
maternity leave of absence in January or February 1969 and was replaced
by Vivian Brown In June 1969, when Brien testified at the hearing in these
cases, her baby was 2 weeks old, and she had not yet returned to work for
Guerra Garments.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
especially new ones, are producing capably or not,
admonish employees "to get the work out" when they are
talking too much," tell Guerra when they need additional
operators, and notify the operators to go home when work
runs out." The pay of floorladies, though not identical, is
substantially greater than that of the operators who
received $1.60 per hour. Keement's pay was $2.05 per
hour, Brown ' s was $2, and Vachon was paid $1.85.
Significantly, Brown interviewed applicants for
employment at Island Pond and effectively recommended
to Guerra their employment or not. In addition, as
previously noted, when Guerra is not present, which is
frequently, the only supervision of the operators is that
supplied by the floorladies "
On the foregoing record, I find that the floorladies
clearly are supervisors within the meaning of the Act, and
were improperly included on the eligibility lists.
Of course, the mere fact that the eligibility lists which
were submitted to the Regional Office included ineligible
names is not in itself sufficient to establish that
Respondent willfully and knowingly submitted the lists
with the fraudulent intent of thereby affecting the outcome
of the elections. However, the sequence in which ineligible
names were added to the lists, the close relationship and
identification of many of the improperly added persons
with Guerra, and the spurious and implausible
explanations offered for their inclusion on the lists impel
the conclusion, which is made, that precisely that was the
motive for their placement on the lists of persons
assertedly eligible for voting at the election The record in
this regard discloses as follows:
As previously noted, the Directions of Elections clearly
required that the Respondent submit alphabetized lists of
all the eligible employees in the described appropriate
units who were employed during the payroll period for the
week ending February 8, 1969, but instead, the
Respondent submitted lists of all employees who had
worked for the two companies at any time from January
1, 1969, to February 15, 1969, without regard to whether
or not they were still employees on the latter date. Guerra
admitted that he instructed his bookkeeper, Mrs. Agnes
Parker, to so prepare the lists, and his explanation for
giving that instruction was, "that was what I thought they
asked me for," and that "in fact," he had spoken to "an
official from the Labor Board," and was told that this
"was the proper thing to send."
I regard Guerra's explanation for the failure to follow
the requirements of the Directions of Elections as patently
implausible, and I do not believe his testimony in this
respect. The instruction to alphabetically list the
employees in the unit who worked during a specified
payroll period was clear and unambiguous. Guerra
admittedly is a college graduate with a Bachelor of Arts
degree in political science, and it is inconceivable that he
did understand what was required. In addition, although
asked, he was unable to state the name of the "official"
who allegedly so instructed him. Since I regard it
incredulous that any "official" of the Labor Board would
so advise Guerra , and in view of my general lack of belief
in his testimony, I regard this explanation as unworthy of
credence. Moreover, Guerra was represented by competent
counsel in the representation proceeding, and even
"Floorlady Brien so testified
"As found above, Sadie Keement so instructed Lawson, and Brown did
likewise to Farrar
"Although Barber works at Columbia, he admittedly speaks little
English and that with difficulty, and is subject to Keement's instructions
assuming , which I do not, that he did not understand the
instruction, he had ready access to proper advice on the
subject." I conclude from all the foregoing that the failure
to follow the instruction of the Directions of Elections was
not based on any misunderstanding of the requirements."
I am, moreover, persuaded by the sequence of the
names on the Columbia eligibility list, and the patently
implausible explanations therefor, that the inclusion of
many of the names of ineligible voters was deliberate and
not merely the result of error or misunderstanding. Thus,
an examination of the Columbia list discloses that in
accordance with the instructions of the Direction of
Election, the names are listed in alphabetical order, but
that after following that order up to the name of Silverine
Wright, Mrs. Parker then added the names of Guerra's
son, Durwood Guerra, his brother-in-law, Roland Barber,
her own name, Agnes Parker, and then, those of nine
other employees, only two of whom" worked for
Columbia during the eligibility week ending February 8,
1969. Mrs. Parker's implausible explanation (which I do
not credit) for these significant additions to the list after
the alphabetical sequence was that she prepared it from
the individual payroll sheets of the employees which she
maintained in a binder in alphabetical order, but that
some of the pages must have stuck together when she
leafed through the binder, and that she added the
additional names when she rechecked the list a second
time against the individual payroll sheets. This
explanation clearly is untrue in respect to the sequence in
which the names of Durwood Guerra, Roland Barber, and
her own appear on the Columbia eligibility list, and I
therefore also do not believe it for the addition of the
others who were not on the payroll during the eligibility
period. I conclude, contrary to her denial, that she added
these three names, those of the supervisors, and the
employees who did not work during the eligibility period,
pursuant to instructions from Guerra." It is, moreover,
significant in this regard that Parker listed her own name
and voted,'' notwithstanding that she admittedly knew she
was ineligible to vote, and that she advised Vivian Brown,
who, in addition to being a supervisor, no longer worked
for Guerra Garments on the date of the election, to do
likewise.01
I conclude from all the foregoing, not only that the
eligibility lists submitted by Respondent for Columbia and
Guerra Garments to the Regional Office included names
of persons who, as found above, clearly were ineligible to
"I note in this regard that copies of the lists submitted to the Regional
Office also were sent by Guerra' s bookkeeper to Respondent's counsel, and
that the latter was present in Newport , Vermont, on the date of the
elections.
"It is rather significant in this regard that the bookkeeper, Agnes
Parker, testified , contrary to Guerra , that it was her "own idea," not
suggested by Guerra , to include on the eligibility lists, the names of all the
employees who worked for the two companies at any time after January 1,
1969, whether or not they were still so employed Since I am persuaded by
Mrs Parker ' s demeanor on the witness stand that her testimony was
motivated , not by truth or accuracy, but solely by a desire to absolve
Guerra from responsibility for the inclusion of ineligible persons on the
lists of employees assertedly eligible to vote , I do not credit her testimony
in this respect Moreover, since her explanations hereinafter described, for
including many ineligible employees on the lists, were patently implausible
and unworthy of credence, I regard her testimony as generally unreliable
"Jennie Carter and Betty Coty
4 N.L.R B v. Walton Mfg Co, 369 U S. 404 , 408, quoting with
approval from Dyer v MacDougall , 201 F.2d 265, 269 (C.A 2) An
appropriate excerpt from that decision appears in footnote 20, supra.
"Her vote was challenged by the Union.
"Brown so testified Her vote also was challenged by the Union.
ACACIO GUERRA , COLUMBIA CASUALS, INC.
vote, but also that the inclusion of those names was
deliberate and willful and was motivated by an intent to
thereby pad the lists and affect the election results. I
further find and conclude that the Respondent thus
interfered with the Board's investigation of whether or not
the employees wanted to bargain collectively through a
representative of their own choosing, and thereby engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act .41
30.(i) This subparagraph of the complaint alleges that
Guerra, through his agent, Henry Webb, created the
impression of surveillance of union activities, "and warned
an employee not to become or remain involved in union
activity."
The record in respect to this alleged violation of
Section 8(a)(I) of the Act was as follows: Audrey Benway
credibly testified that, on a date which she could not recall
except that it was before the Board elections, her
brother-in-law, Henry Webb, conveyed to her a message
from Guerra that she "not have anything to do with the
union because they were using me, and he didn't want me
to get involved." Webb credibly testified that he was
asked by Guerra to deliver that message about a month
before he actually did so."
I regard this statement by Guerra to Mrs. Benway via
Webb as noncoercive, and I fail to see how it creates any
impression of surveillance of her union activities. I will
therefore recommend the dismissal of this subparagraph
of the complaint.
30.(k) This subparagraph of the complaint alleges that
on or about March 20, 1969, Respondent granted his
employees a new benefit consisting of an afternoon
coffeebreak to discourage support of the Union.
The record in respect to this alleged violation discloses
that prior to the impending Board elections on March 25,
1969, Guerra's employees enjoyed only a morning
coffeebreak of 10 minutes, with the single exception that
during the summer, an occasional afternoon coffeebreak
was given when the weather "was very hot." According to
the credited testimony of Alvina Loiselle, about 4 or 5
days before the Board elections, an additional regular
coffeebreak of 5 minutes at 2 p.m. was inaugurated and
thereafter given every day.
It is undisputed that no employee of Columbia and
Guerra Garments requested the additional coffeebreak.
Guerra's only explanation for granting this respite to his
Columbia and Guerra Garments employees was that a
like afternoon break had been given by his Supervisors
Turcotte and Brown to the Island Pond employees when
that plant started operations on about March 15, 1969,
and he decided that "if they had one at Island Pond, I
was also going to give one at Newport." I do not believe
Guerra's explanation for granting this benefit to the
Columbia and Guerra Garments employees just before the
Board election. As Guerra himself testified, the afternoon
coffeebreak at Island Pond was given because their hours
of afternoon work are " long," and he admitted that those
at Newport were fewer. The timing of this unasked for
benefit just before the Board elections, Guerra's
unconcealed animus towards the Union, the numerous
unfair labor practices found above by which he sought to
discourage adherence to the Union, and my lack of regard
"Cf. Vail Manufacturing Company, 61 NLRB 181, 209; Grand-Central
Chrysler, Inc, 155 NLRB 185, 187-188 ; Smith 's Transfer Corporation,
162 NLRB 143, 158.
"Guerra denied asking Webb to deliver any message to Benway for him,
but I regard his denial as unworthy of credence.
751
for both the veracity and plausibility of his explanation,
all persuade me that this benefit also was introduced to
discourage support of the Union at the impending
elections. I therefore conclude that Respondent thereby
engaged in further unfair labor practices within the
meaning of Section 8(a)(1) of the Act.50
30.(l) This final subparagraph alleges that the
Respondent violated Section 8(a)(1) of the Act by paying
its employees to vote at the Board elections.
The record in respect to this allegation discloses that
the employees' lunch period normally begins at 12 noon.
The voting at the elections was scheduled to begin at 12
noon at the Municipal Building, a few blocks away from
the plant. At or about 11:30 a.m on the day of the
elections, the Respondent turned off the power which
operates the sewing machines, and the employees were
told that they could go to vote and would be paid for the
extra half hour so provided.
The implication of the complaint allegation is that the
Respondent purchased the votes of its employees. Clearly
the evidence establishes no such thing, but only that the
employees were permitted to vote on company time. The
General Counsel cites no authority to support the
proposition that permitting employees to vote on
company-paid time violates Section 8(a)(l) of the Act,
and my own research has not uncovered any. To the
contrary, the Board decisions in representation cases hold
by implication that allowing employees to vote on paid
time is not even a ground for setting aside an election." I
therefore will recommend dismissal of this allegation of
the complaint.
IV. THE REPRESENTATION CASES
A. The Objections to the Elections
The objections to the elections conducted by the Board
among the employees of Columbia and Guerra Garments
in essence allege as grounds for setting aside the elections
the same conduct which is alleged in the complaint as
violations of Section 8(a)(1) and (3) of the Act I have
found above that during the period between December 30,
1968, when the Union filed its petitions in the
representation cases, and March 25, 1969, when the
elections were held, the Respondent engaged in substantial
violations of Section 8(a)(1) and (3) of the Act, by the
refusal to reemploy Gladys Lawson because of her
activities in support of the Union," the unlawful discharge
and failure to reinstate Vivian Farrar for like reasons,
threats of plant closure and discharge if the employees
selected the Union as their collective-bargaining
representative, starting operations in a new plant just
before the Board elections to dissuade employee support
of the Union, interfering with the Board's investigation of
its employees' representation desires by willfully
submitting false and padded eligibility lists to the
Regional Office, and by granting its employees a new and
unrequested benefit in the form of an additional regular
afternoon coffeebreak just before the Board elections to
undermine union adherence. In the light of those findings,
I conclude that Objections 2, 3, 5, and 7 to the Columbia
"Cf Regal Aluminum , Inc, 171 NLRB No 189; N L R.B v Exchange
Parts Company . 375 U S 405, 409.
"Cf. The Falmouth Company. 115 NLRB 1533, 1535-37, EJ Kelley
Company, 99 NLRB 791, 792, John S Barnes Corporation , 90 NLRB
1358, 1359
"Lawson 's initial illegal discharge occurred before the Union filed its
representation petitions, but as found above, she applied for and was
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election, and Objections 2, 4, and 6 to the Guerra
Garments election, have merit and should be sustained."
B. The Challenged Ballots
The Guerra Garments election resulted in six votes for
the Union, six against it, and there were five ballots
challenged by the Union, sufficient to affect the results of
the election. These challenges have been referred to me for
resolution. The five voters who were challenged were
Joyce Brien, Vivian Brown, Florida Turcotte, Fabienne
Lessard, and Alma Lamoureux.
As found above, Brien , Brown, and Turcotte are
supervisors within the meaning of the Act, and thus are
excluded from the appropriate unit. In addition, the
record discloses that on the date of the election, Brown
and Turcotte were employed at Island Pond, and no
longer worked at Guerra Garments. Finally, the
Respondent stipulated that the challenges to the ballots of
Brown and Turcotte should be sustained. For all these
reasons, I conclude that the challenges to the ballots of
Brien , Brown, and Turcotte be sustained.
The payroll record in evidence of Fabienne Lessard
discloses that she is a casual employee who works for
Guerra Garments on an irregular basis for relatively few
hours She thus has little, if any, community of interest
with the wages and working conditions of the regular
employees of the Company. In any event, the Respondent
stipulated that the challenge to her ballot be sustained
because she was not employed by Guerra Garments either
during the eligibility period or on the date of the election
For all these reasons, I conclude that the challenge to her
ballot be sustained.
Alma Lamoureux was hired by Guerra Garments in
March 1968, with the understanding that she would
discontinue working when she had earned the maximum
permitted her without affecting her social security annuity.
She accordingly quit work in October 1968, was called
back again in January 1969, and has worked steadily since
then. The Board now holds that employees otherwise
within the appropriate unit will not be excluded therefrom
merely because they limit their working time and earnings
so as not to decrease their social security annuity." Since
Lamoureux otherwise is properly within the appropriate
unit , I conclude that the challenge to her ballot should be
overruled.
In view of my findings above, I recommend that the
Regional Director open and count the challenged ballot of
Alma Lamoureux and serve upon the parties a revised
tally of ballots in respect to the Guerra Garments election,
unlawfully refused reemployment in February 1969 because of her support
of the Union
"1 regard the evidence adduced at the hearing insufficient to establish
either that the Respondent engaged in surveillance of the union activities of
the employees or in conduct which reasonably could be regarded as
creating the impression of such surveillance . For reasons previously stated,
I also find no merit in Objection 8 to the Columbia election, or in
Objection 7 to the Guerra Garments election, insofar as they are based on
the employees voting on company -paid time In respect to the rest of the
same numbered objections, I also regard as without merit the contention
that the elections were adversely affected merely because Floorlady
Keement stood on the sidewalk outside the Newport Municipal Building
during the voting and engaged in undisclosed conversations with some
employees . Harold W Moore , d/b/a Harold W Moore & Son, 173
NLRB No. 191; cf Mllchem . Inc, 170 NLRB No 46.
"Holiday Inns of America . Inc.. d/b/a Holiday Inn of Oak Ridge,
Tennessee , 176 NLRB No 124, Indianapolis Glove Co v N L R B., 400
F 2d 363 (C.A 6)
and either certify the Union if it has received a majority
of the valid ballots cast, or conduct a new election if the
Union has not received such a majority. I further
recommend that the election in Columbia be set aside and
a new election directed.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
VI THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I will recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having further found that the Respondent
discriminated against Gladys Lawson and Vivian Farrar
by terminating their employment and thereafter refusing
to reinstate them because of antiunion considerations, I
will recommend that the Respondent be ordered to offer
them immediate reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of earnings they may have
suffered by reason of the discrimination by the payment to
each of them of a sum of money equal to the amount she
normally would have earned from the date of her
termination to the date of her reinstatement, less her net
earnings during said period, with backpay computed on a
quarterly basis in the manner established by the Board."
In view of the nature and extent of the unfair labor
practices committed, the commission of other unfair labor
practices reasonably may be anticipated .16 I will therefore
recommend that the Respondent be ordered to cease and
desist from "in any other manner" infringing upon rights
guaranteed to employees by Section 7 of the Act, in
addition to those rights found to have been violated
herein.
I will also recommend that the Respondent preserve
and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records necessary to
analyze and determine the amount of backpay due under
the terms of this recommended remedy.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following.
Conclusions of Law
1. Respondent, Acacio Guerra, Individually, Columbia
Casuals, Inc., Guerra Garments, and Island Pond Mfg.
Co., constitute a single-integrated employer engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
"F. W. Woolworth Company, 90 NLRB 289; backpay shall include the
payment of interest at the rate of 6 percent per annum to be computed in
the manner set forth in Isis Plumbing & Heating Co, 138 NLRB 716.
"N.L R B v Entwistle Mfg Co , 120 F.2d 532, 536 (C.A. 4)
ACACIO GUERRA, COLUMBIA CASUALS, INC. 753
2. Upstate New York & Vermont District Council,
International Ladies' Garment Workers ' Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discriminating against Gladys Lawson and Vivian
Farrar, by terminating their employment and thereafter
refusing to reinstate them because of antiunion
considerations , the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
4. By the foregoing conduct , by threatening employees
with discharge , plant closure, and other reprisals to
discourage support of the Union , by commencing
operations at a new plant , and by granting benefits to
employees j ust before the Board elections , all for the same
purpose, and by submitting to the Regional Office a
willfully false and padded list of assertedly eligible
employees to affect the outcome of the elections, the
Respondent has engaged in and is engaging in unfair labor
practices of Section 8(a)(l) 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.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
I recommend that the Respondent, Acacio Guerra,
Individually, Columbia Casuals, Inc., Guerra Garments,
and Island Pond Mfg. Co., their officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in and activities on behalf
of Upstate New York & Vermont District Council,
International Ladies' Garment Workers' Union,
AFL-CIO, or any other labor organization of its
employees, or in any other manner discriminating in
regard to hire or tenure of employment or any term or
condition of employment.
(b) Threatening employees with discharge, plant
removal or closure, or other reprisals, or granting them
benefits, to discourage union membership or support.
(c) Interfering with the Board's conduct of elections by
furnishing false or fraudulent eligibility lists.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to
self-organization, to form labor organizations, to join or
assist Upstate New York & Vermont District Council,
International Ladies' Garment Workers' Union,
AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from engaging in such activities, except to
the extent that such rights may be affected by an
agreement requiring membership in a labor organization
as a condition of employment, as authorized by Section
8(a)(3) of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer Gladys Lawson and Vivian Farrar immediate
and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges previously enjoyed, and make
them whole for any loss of pay they may have suffered as
a result of the discrimination against them in the manner
provided in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(c) Notify Gladys Lawson and Vivian Farrar if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces
(d) Post at both plants located in Newport and in
Island Pond, Vermont, copies of the attached notice
marked "Appendix."57 Copies of said notice, on forms
provided by the Regional Director for Region 1, after
being duly signed by Acacio Guerra on behalf of the
Respondent, shall be posted by him immediately upon
receipt thereof, and be maintained by him 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.
(e) Notify the Regional Director for Region 1, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.SB
I FURTHER RECOMMEND that the complaint be dismissed
insofar as it alleges violations of the Act other than those
found above.
"In the event that this Recommended Order is adopted by the Board,
the words " a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region I , in writing , within 1 0 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
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, I hereby notify my employees
that:
After a trial at which all sides had the chance to give
evidence, a Trial Examiner of the National Labor
Relations Board has found that I violated the National
Labor Relations Act, and has ordered me to post this
notice.
The Act gives all employees these rights.
To engage in self-organization,
To form, join, or help unions;
To bargain collectively through a representative of
their own choosing,
To act together for collective bargaining or other
mutual aid or protection; and
To refrain from any and all these things
I WILL NOT do anything that interferes with these
rights. More specifically,
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I WILL NOT discourage membership in Upstate New
York & Vermont District Council, International
Ladies' Garment Workers ' Union , AFL-CIO, or any
other labor organization , by discharging or refusing to
reinstate any of my employees , or in any other manner
discriminating against my employees in regard to their
hire or tenure of employment or any term or condition
of employment.
I WILL NOT threaten employees with discharge,
layoff, plant closure or other reprisals to discourage
participation in union membership and activities
I WILL NOT interfere with the conduct of Board
elections by furnishing false or fraudulent lists of
employees who are eligible to vote.
I WILL NOT in any other manner interfere with,
restrain , or coerce my employees in the exercise of their
right to self-organization, to form labor organizations,
to join or assist Upstate New York & Vermont District
Council , International Ladies' Garment Workers'
Union , AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid
or protection , and to refrain from any or all such
activities.
I WILL offer Gladys Lawson and Vivian Farrar
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
any seniority or other rights and privileges previously
enjoyed , and make them whole for any loss of pay
suffered as a result of the discrimination against them.
I WILL notify Gladys Lawson and Vivian Farrar if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
Dated By
ACACIO GUERRA,
INDIVIDUALLY ; COLUMBIA
CASUALS , INC.; GUERRA
GARMENTS ; AND ISLAND
POND MFG. CO.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office, 20th Floor,
John F. Kennedy Federal Building , Cambridge & New
Sudbury Streets, Boston , Massachusetts 02203, Telephone
617-223-3300.