Allure Shoe Corp.

National Labor Relations Board - Board Decisions

Aug 31, 1962

138 N.L.R.B. 395 (N.L.R.B. 1962)

ALLURE SHOE CORPORATION 395
in any event been modified in this respect," -we would not have directed
a separate election for these so-called "staff employees."
Accordingly, we find that the following employees of the Employer
at its Clintonville, Wisconsin, plant constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9(b) of the Act: 12
All salaried office employees, excluding executives, field representa-
tives, office managers, department heads, professional and confidential
employees, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
I' D V. Displays Corp, 134 NLRB 568.
12 Included within the general coverage of the unit are those employees and classifica-
tions specifically found above as being appropriately part of a salaried office unit. Of
course, the inclusion within the unit of any particular job title or individual does not mean
that similar jobs or these employees , if promoted or reclassified , are to be automatically
excluded . In all cases , the proper test for exclusion from the unit is whether the in-
dividual , although a salaried office employee , is within a category specifically excluded
from the above unit description.
Allure Shoe Corporation and Local 885, Retail , Wholesale and
11 epartment Store Union , AFL-CIO and Cipriano C. Dopico,
Paulina Garcia . Cases Nos. 12-CA-1937, 12-CA-1982, 12-CA-
2007, 12-CA-2127, and 12-CA-2132. August-31, 1962
DECISION AND ORDER
On May 22, 1962 , Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above -entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices , and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Interme-
diate Report . He also found that the Respondent had not engaged
in certain other unfair labor practices , and recommended dismissal of
the complaint as to them . Thereafter, the Respondent and Local 885,
Retail, Wholesale and Department Store Union , AFL-CIO , filed ex-
ceptions to the Intermediate Report and supporting briefs.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three -member
panel [Chairman McCulloch and Members Rodgers and Fanning].
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 Interme-
1 Local 885 's exceptions and briefs were filed on behalf of itself and on behalf of
Samuel Rivera , Gladys Rivera , Ana Canut , Alejandrina Zamora, Pauline Garcia, and
Alphonso Delgado
138 NLRB No. 47.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
diate Report and the entire record in the case, including the excep-
tions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner 2
2 The notice is hereby amended by adding the following note immediately below the
signature at the bottom of the notice:
"NOTE -We will notify any of the above-named employees 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 after discharge from the Armed Forces."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed on May 16, 1961, by Local 885, Retail, Wholesale and De-
partment Store Union, AFL-CIO, herein sometimes called the Union, on September
18, 1961, by Cipriano C. Dopico, an individual, and on September 21, 1961, by
Paulina Garcia, an individual, the General Counsel, by the Regional Director for
the Twelfth Region (Tampa, Florida), issued his consolidated complaint, dated
August 25, 1961, and amended on September 19, 1961, and January 2, 1962, against
Allure Shoe Corporation, herein called Respondent. With respect to the unfair
labor practices, the complaint, as amended at the hearing, alleges, in substance, that
(1) on specified dates Respondent discharged, and thereafter refused to reemploy,
16 named employees because of their union and concerted activities; (2) named
supervisors and agents of Respondent engaged in specified acts of interference, re-
straint, and coercion; and (3) by the foregoing conduct, Respondent engaged in
unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Na-
tional Labor Relations Act, as amended, herein called the Act. In its duly filed
answer, as subsequently amended, Respondent denies generally all unfair labor
practice allegations.
Pursuant to-due notice, a hearing was held before me at Miami, Florida, at
various dates during the period from January 15 to February 15, 1962. The General
Counsel and the Respondent were represented and afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce relevant evidence, to
present oral argument, and to file briefs. On April 9, 1962, the Respondent filed
a brief, which I have fully considered.
Upon the entire record i in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Florida corporation , is engaged in Miami , Florida, in the
manufacture , sale, and distribution of women's shoes. During the 12 months pre-
ceding the issuance of the complaint, the Respondent manufactured , sold, and shipped
products, valued in excess of $100,000, from its plant at Miami, Florida, to points
located outside the State of Florida.
Upon the above-admitted facts, I find , as Respondent admits in its answer, that
Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated , and I find , that Local 885, Retail , Wholesale and Depart-
ment Store Union, AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Union's organizational campaign among Respondent's employees began in
December 1960. The complaint, as amended at the hearing, alleges, and the Gen-
eral Counsel contends, that (1) Respondent, through its supervisors, engaged in
'Obvious errors in the typewritten transcript of testimony are noted and corrected.
ALLURE SHOE CORPORATION 397
conduct proscribed by Section 8(a)(1) of the Act, including coercive interrogation
and threats of economic reprisals for supporting the Union, and (2) Respondent
was discriminatorily motivated in violation of Section 8(a)(3) of the Act in the
termination of 16 named employees during the period from February to May 1961.
Respondent denies that its supervisors engaged in any conduct proscribed by the
Act and that it was discriminatorily motivated in effecting the terminations, con-
tending that the employees in question were terminated for specific reasons unrelated
to their alleged union or concerted activities.
A. Background
In June 1957, the United Shoe Workers of America, AFL-CIO, attempted to
organize Respondent's employees. The Board found, with court approval, that
during this organizational campaign, Respondent violated Section 8(a)(1) and (3)
of the Act by telling an employee that her husband would be hired if the Union did
not organize the employees, threatening another employee with discharge and re-
prisals if she joined the Union or solicited memberships, requesting an employee
to report concerning events at union meetings, interrogating an employee as to
whether she favored the Union and requesting her to furnish names of union ad-
herents, granting wage increases to deter continued union activity, denying overtime
work to an employee because of her union activities, discharging an employee be-
cause of his union activities and thereafter, as an inducement to restoration of em-
ployment, seeking to persuade this discriminatorily discharged employee to declare
in writing that the discharge had been valid and that a pending charge before the
Board was without merit. Allure Shoe Corporation, 123 NLRB 717, enfd. in these
respects, 277 F. 2d 231 (C.A. 5).2 The United Shoe Workers of America, AFL-CIO,
lost a representation election held that year (Case No. 12-RC-120, not published
in NLRB volumes).
In 1959, the United Shoe Workers of America, AFL-CIO, again attempted to
organize Respondent's employees and filed a representation petition with the Board
for an election (Case No. 12-RC-575 not published in NLRB volumes). Prior to
the election, which was held on August 14, 1959, Anthony Ballerino, at that time
foreman of the making room with admitted authority to hire and fire, told his
assistant, Manuel Zamora, that after the election he would get rid of all the union
leaders and active element in the Union. Ballerino instructed Zamora to eavesdrop
on the employees to try to overhear what they were saying about the Union, and
both Ballerino and Zamora engaged in such conduct. During that period Ballerino
ordered Zamora to watch and to keep an eye on Alphonso Delgado, an employee in
the making room, because Delgado was active in the Union and was giving out
union cards.3 The Union lost the election.
B. Interference, restraint, and coercion
In December 1960, Local 885, Retail, Wholesale and Department Store Union,
AFL-CIO, the Charging Union in this proceeding, herein called the Union, began
an organizational campaign among Respondent's employees, about 60 percent of
whom were Spanish-speaking Cubans. By March 11, 1961, the Union had obtained
signed authorization cards from at least 30 percent of Respondent's approximately
300 production employees and on that date filed a representation petition with the
Board. Meetings at the union hall, attended by Respondent's employees, were held
regularly every Wednesday evening, beginning with March 8, 1961. The election,
which the Union lost, did not take place until August 18, 1961, some 3 months after
the end of the period covered by the allegations in the complaint.
This section deals with the conduct of Superintendent Anthony Scherzinger, As-
^sistant Superintendent Anthony Ballerino, Forelady Era Petris, more commonly
referred to as Boots, and Foreman Simon Gold, all of whom admittedly possessed
and exercised the authority which rendered them supervisors within the meaning
of the Act. The General Counsel contends, as alleged in the complaint, that during
the period from January to May these supervisors engaged in unlawful conduct
such as coercive interrogation, attempting to induce employees to engage in surveil-
lance and to report on the union membership and activities of other employees, in-
forming employees that their union activities were under surveillance, threatening
2 The court did not enforce a further finding of the Board that a second employee was
discriminatorily discharged.
8 The findings as to the conduct of Ballerino and Zamora are based on the credited and
,undisputed testimony of Manuel Zamora.
398 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
employees with economic reprisals for continued union activity and -support, and
promising employees economic benefits for ceasing their union activities and support.
1. Superintendent Anthony Scherzinger
Anthony Scherzinger was first employed by Respondent in August 1960 as plant
superintendent.
During the months of March and April 1961, Scherzinger, on numerous occasions
during working hours at the plant, unsuccessfully interrogated Samuel Rivera and
Leo Medford, two active union solicitors who were on the Union's organizational
committee, concerning the names of employees who had attended union meetings
or were union members. Scherzinger frequently asked Medford on the morning
after a union meeting whether she enjoyed the dance the preceding evening, an
obvious reference to the union meeting and so understood by Medford. When
Medford replied in the affirmative, Scherzinger then inquired as to who had at-
tended. On one occasion Scherzinger walked up to Medford and to Otmara Guer-
rero, another active union solicitor on the Union's organizational committee, and
asked if Medford had joined Otmara's club yet. When Otmara replied in the affirm-
ative, Scherzinger asked if she had a card for him, stating that he would like to
sign one. On another occasion when the English-speaking female employees were
congregated outside the plant after lunch to enjoy a smoke, Scherzinger told them
that the Cuban employees were the ones who were working for the Union and that
he did not think that "the Cuban people had any right to come over here and try
to start trouble like this."
In response to Scherzinger's inquiries, Samuel Rivera always replied that he did
not know the names of the union employees. On one such occasion, Scherzinger
stated, "you don't want to talk to me" and walked away in anger. On another oc-
casion, Samuel Rivera was present in the office where Assistant Superintendent
Ballerino told Mrs. Rivera in Spanish that she was only producing at the rate of
50 cents per hour. Mr. Rivera remarked in English that Foreman Si Gold had
stated a few days earlier that Mrs Rivera was making over $10 a day, so that
someone was lying to them. At that point, Scherzinger, who was also present,
stood up and, angrily pounding the desk, accused Rivera of being the liar and
offering to put it in writing over his signature. When Samuel Rivera asked why
he was being called a liar, Scherzinger replied that it was because Rivera knew the
names of the employees in the Union and did not want to tell him. Rivera replied
that maybe he was a liar in that respect.
Scherzinger also spoke about the Union to employee Paulina Garcia on a num-
ber of occasions in April after she started on piecework. Garcia's earnings on
piecework were higher than they had been on straight time. Scherzinger would
tour the plant with a list of the daily piecework earnings of the employees. On
such occasions, he told Garcia that she was a very good operator, pointed out her
high earnings on piecework, and then warned that the piecework was a good thing
for her but that the Union was not good for her.
The findings in the preceding paragraphs are based on the testimony of Samuel
Rivera, Leo Medford, Otmara Guerrero, and Paulina Garcia, all of whom impressed
me as being credible witnesses. Scherzinger did not testify with respect to any of
the above-described specific incidents but merely denied that he ever said anything
to the employees about the Union. Scherzinger did not impress me as a frank
and candid witness. He testified in a manner which indicated to me more of a
concern not to give answers which might be regarded as unfavorable to the Re-
spondent than to disclose the true facts as he knew them. Under all the circum-
stances, including my observations of the demeanor of the witnesses while testifying
under oath, I do not credit Scherzinger's denials. I find that Scherzinger made the
statements and engaged in the conduct hereinabove set forth. I further find that
his statements to Paulina Garcia carried an implied threat that if the Union got
into the plant, Respondent would take her off piecework where her earnings were
high.
2. Assistant Plant Superintendent Anthony Ballerino
Anthony Ballerino had been foreman of the making room for about 6 years. In
August 1960 he was promoted to the position of assistant plant superintendent.
^Otmara Guerrero was an active union solicitor and a member of the union organi-
zational committee, and attended all union meetings. Ballerino, who spoke Spanish.
frequently talked to her at the plant during working hours about the Union and
sought to induce her to disclose the names of the employees attending union meet-
ings. On an early occasion, Ballerino told her that he knew she liked the Union
and was on the organizational committee, that he wanted to persuade her that she
ALLURE SHOE CORPORATION 399
was doing the wrong thing, that she could benefit herself by working with the Com-
pany and have a raise in salary, and that, although he had someone who kept him
informed of everything that went on with regard to the Union, he also would like
to have her give him the names of the employees who were in favor of the Union
and who were attending meetings. On another occasion he spoke to her for a long
time in his office and told her that the unions here in the South are a lot different
from the way they are in the North and that the Company would always do what
they wanted regardless of the Union. He also told her that this long conversation
in his office would create the, impression among her fellow workers that she was
now on the Company's side. On another occasion, after Ballerino had observed
Guerrero spearing for a few minutes to, Union Representative Klein outside the
plant, he asked her if she had some type of friedship with the union representative.
When she replied that she was acquainted with him, Ballerino urged her to use
her head and tell him the names of the employees attending the union meetings,
promising to, help, her if she would disclose the names. Guerrero refused, stating
that while she thought she deserved a raise she did not want it at the expense of
"selling my fellow workers down the river." On still another occasion late in
April, Ballerino talked to her in his office and told her that he had already given
her sufficient time to think things, over but that he was going to give her one more
opportunity to disclose the names of those on the organizational committee and
the ones attending union meetings. He again stated that he always had someone
at the meetings to keep him informed but that he also wanted her to act as an
informer. She replied that her decision was the same and that she was never going
to inform on her fellow workers.
On the morning following a union meeting, Ballerino came over to Gladys Rivera
while she was working at her machine in the stitching room and asked if she would
tell him the names of the employees who had attended the union meetings. When
she replied that she did not know, Ballerino walked away. Gladys Rivera, the
wife of Samuel Rivera, was also an active union solicitor and a member of the union
organizational committee, and attended all the union meetings.
Alphonso Delgado, an employee in the making room, where Ballerino had been
the foreman prior to occupying his present position, was one of the first active union
solicitors and members of the union organizational committee. During the morn-
ing coffee break on March 9, Delgado spoke to two employees about going to Del-
gado's home for the purpose of giving one of them a union card and having the
other one sign a, union card. During the lunch period, Delgado left the plant with
employee Zapata to drive to Delgado's home, located about 10 or 12 streets from
the plant. Ballerino also left the plant and waited in his car until Delgado drove by
and then followed Delgado's car to the latter's house. As Delgado and Zapata en-
tered Delgado's home, Ballerino drove by very slowly, watching the house. Zapata
signed a union card in Delgado's home. When they returned to the plant, Ballerino
was standing outside on the sidewalk and did not answer Delgado's greeting as the
latter passed by to enter the plant.
The foregoing findings are based on the credited testimony of employees Otmara
Guerrero, Gladys Rivera, and Alphonso Delgado, all of whom impressed me as
being sincere and forthright witnesses. Ballerino denied ever talking to Guerrero
about the Union prior to her discharge, or ever asking her for the names of employees
attending union meetings or ever telling her that she had one last chance to give him
the names. He also denied ever talking of Gladys Rivera about the Union or ask-
ing her who had attended a union meeting. He denied ever following Delgado home
during a lunch period. While some inconsistencies may appear in the testimony of
Guerrero and Delgado with respect to other matters, the same observation may
be made with respect to the testimony of Ballerino. In addition, some allowances in
this respect must be made for the language difficulties of Guerrero and Delgado and
the fact that both testified through an interpreter. They testified with such detailed
specificity and particularity as normally do not accompany a fabrication. On the
other hand, Ballerino testified in English in a manner which convinces me that he
was not being candid and truthful in these matters. Moreover, the conduct attributed
to him is consistent with his undenied conduct during the union campaign in 1959
when he was foreman of the making room ( see findings under section A, Background,
supra). Under all the circumstances, I do not credit Ballerino's denials.
3. Forelady Boots Petris
Petris had been. forelady. over the, prefitting, or cement assemblers in the stitching
room for over 4 years at the time of the instant hearing. Vice President Goodman
testified that her recommendations with respect to hiring and firing are given weight
and that in many instances she herself might have the authority to hire and fire.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Petris herself testified that whenever there was a shortage of work available , Si Gold,
foreman of the entire stitching room, would tell her that they had to let people go•
and "then we discuss it together as a usual thing." Petris spoke to the employees
partly in Spanish and partly in English.
During the Union's organizational campaign early in 1961, Petris frequently'
talked about the Union at the plant to Elsa Pupo, an employee in her department.
On one occasion after a number of employees had been laid off, Pupo mentioned
these layoffs to Petris, adding that she had heard that more employees were to be
laid off. Petris replied that if Pupo has not signed a union card she need not be
afraid of anything. One Saturday when Pupo was working overtime, Petris showed
her a card from a hotel workers union, and stated that she had belonged to that
union when she had worked at a hotel and that all they did was take her money. She
told Pupo that unions were no good and warned her not to get herself mixed up in
it. Petris frequently told the girls in her department that the Union was no good.
One day, Petris asked Pupo if she liked the Union. Pupo replied that she did not_
know too much about it because she was a foreigner but that she thought that the best
thing for the employees was to have the Union at the plant. A few days before her
employment termination on April 19, 1961, Petris approached Pupo at her work and
said that she had been told that Pupo had signed a union card and wanted to know
whether or not that was true. As Pupo had in fact signed a union card on March 12•
and did not wish to lie, she merely made no reply.
The findings in the preceding paragraph are based on the testimony of Elsa Pupo
who testified in a sincere and forthright manner and impressed me as an honest and
credible witness. She was very emphatic in her recollection that Petris had told her
that she did not have to worry about anything if she had not signed a union card and
her testimony was not shaken in any significant respect on cross-examination. Petris
admitted that she did not like the Union because of her past experience with a hotel
workers union and that she spoke to Elsa Pupo and to other employees about that.
Petris admitted that she and Pupo had started working at the Company about the
same time and that they had "quite a few personal conversations." She testified that
Pupo wanted to talk to her about the Union as friend to friend rather than as em-
ployee to supervisor. She denied telling Pupo that she did not have to worry about
anything if she had not signed a union card. She testified that Pupo asked her what
to do if she had signed a card and did not want to join the Union, and that she
(Petris) replied that Pupo did not have to do anything. She admitted that there
may have been more to the conversation but "right offhand" could not "recall it."
She further denied ever asking Pupo whether it was true that she signed a union'
card. I am convinced that Elsa Pupo testified truthfully and do not have the same
conviction with, respect to Petris. Under all the circumstances, I do not credit
Petris' denials.
Carmen Blanco testified that many times Petris told the group of employees do-
ing the hand cementing work that anyone who joined the Union would be laid off,
and that on one occasion Petris asked her if she had signed a union card. Ana Canut
testified that Petris told her that the Union was no good and full of racketeers, and'
that she overheard Petris tell Elsa Pupo that there would be no more work if the
Union came in. Adoracion Delgado testified that Petris asked her if she had signed
a union card and was attending meetings. On cross-examination she further testi-
fied that she had heard Petris tell other employees more than once that those who
formed the Union would be fired. Petris denied having made the above statements
or inquiries.
Carmen Blanco stated in her pretrial affidavit that "none of my supervisors have
ever asked me anything about the Union, neither Boots Petris, Simon Gold nor Tony
Ballerino." When confronted with this statement on cross-examination, Blanco testi-
fied that she had made a mistake in her affidavit, that she had a poor memory and
is sometimes forgetful, and that it was not until a later time that she realized that
Petris had made these statements and inquiries. Ana Canut stated in her pretrial
affidavit that "no company supervisor said anything to me particularly about the
Union." She testified that she may have misunderstood because she regarded Bal-
lerino as the supervisor. Moreover, her testimony as to what she overheard Petris
say to Pupo was in response to a very leading and suggestive question. The pretrial
affidavit of Adoracion Delgado, dated April 27, 1961, does not include any reference,
to her testimony that Petris told other employees that those who formed the Union
would be fired. A consideration of the foregoing factors leads me to conclude that
these three employees are not reliable witnesses and that their testimony should not,
be credited unless it is undenied or corroborated by other evidence. I therefore do,
not credit their testimony hereinabove set forth.
ALLURE SHOE CORPORATION 401
4. Foreman Simon Gold
Simon Gold was foreman over the entire stitching room where over 120 employees
worked.
On one occasion in April, Gold told Otmara Guerrero that he knew about her union
activities, that he appreciated her being a good worker and would like to see her
stay there, and that she should "use her head."
Guerrero's testimony in this respect stands undenied because Gold was employed
in a foreign country at the time of the instant hearing. However, I regard Guerrero
as a credible witness and am convinced and find that she testified truthfully. I find
that Gold's statement constituted a warning that Otmara Guerrero's continued adher-
ence to and activities on behalf of the Union might jeopardize her employment with
Respondent.
5. Concluding findings
I find that, under the circumstances previously set forth, Respondent interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed by
Section 7 of the Act and thereby violated Section 8(a)(1) of the Act by the con-
duct of-
(a) Superintendent Scherzinger in interrogating employee Leo Medford about her
attendance at union meetings and the names of employees who had attended, in
asking whether Medford had joined Otmara's club, an obvious reference to the Union,
in telling the English-speaking female employees that the Cuban employees were
starting trouble by working for the Union, and in the implied warning to Paulina
Garcia that if the Union got into the plant Respondent would take her off piecework
where her earnings were high.
(b) Assistant Superintendent Ballerino in repeatedly seeking to induce Otmara
Guerrero to disclose the names of employees who attended union meetings and
who were on the organizational committee, promising a wage increase' and to help
her if she would act as an informer in this respect, telling her that Respondent
already had one informer who kept him advised concerning everything that went on
with regard to the Union, and detaining her in his office for a long period in order
to create the impression among the employees that she was now on the Respondent's
side; in asking Gladys Rivera to tell him the names of the employees who had
attended a union meeting the preceding night; and in engaging in surveillance of
Alphonso Delgado on the occasion when he drove an employee home during lunch
period to have him sign a union card.
(c) Forelady Boots Petris in telling Elsa Pupo, at a time when employees were
being laid off, that Pupo did not have to worry about being laid off if she had not
signed a union card, pointing out that unions were no good and not to get herself
mixed up in it, and asking Pupo if she liked the Union and whether or not it was
true that Pupo had signed a union card.
(d) Foreman Simon Gold in warning Otmara Guerrero that her continued ad-
herence to and activities on behalf of the Union would jeopardize her employment
with Respondent.
It is well settled that the above-described interrogations by high-ranking super-
visors, at times in the context of warnings of economic reprisals and promises of
benefits, is coercive and violative of Section 8(a) (1) of the Act .4 In this connection,
I have not predicated any unfair labor practice findings on Scherzinger's conduct in
interrogating Samuel Rivera and in accusing him of lying because he stated he did
not know the names of the employees in the Union. Respondent contends that such
conduct was not unlawful because Mr. Rivera was a supervisor within the meaning
of the Act. However, as the Order herein recommended in this respect will not
be affected by any additional findings of unlawful conduct by Scherzinger with
respect to Samuel Rivera, I deem it unnecessary to, and do not, make any findings
in this respect or pass upon the alleged supervisory status of Mr. Rivera.
C. Discrimination with respect to hire and tenure of employment 5
The complaint as amended at the hearing alleges, and the General Counsel con-
tends, that Respondent discharged and failed and refused to reemploy 16 named em-
ployees because of their union and concerted activities in violation of Section
* See, e . g., Burke Golf Equipment Corporation, 127 NLRB 241, 245; Allure Shoe Corpo-
ration case, supra, and N.L.R.B. v. Lester Bros., Inc, 301 F. 2d 62 (C.A. 4).
5 Unless otherwise indicated , the factual findings in this section are based on credited
testimony and evidence which is undisputed or admitted.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8 (a) (3) and (1) of the Act. The Respondent contends that these employees were
terminated and not reemployed for lawful reasons.
1. Samuel Rivera, Gladys Rivera, Elsa Pupo, Ana Canut, Alejandrina Zamora, and
Paulina Garcia
a. The General Counsel's case
Samuel Rivera and Gladys Rivera: Samuel Rivera was employed continuously
from 1958 until May 8, 1961, assisting Foreman Gold in the stitching room. His
wife, Gladys Rivera, was employed from 1958 until April 27, 1961, at which time
she was a machine stitcher in the stitching room.
Mr. and Mrs. Rivera signed union cards in the early part of March 1961, when
Alphonso Delgado solicited them at their home. Both were on the union organiza-
tional committee and attended the weekly meetings held at the union hall. In addi-
tion, the Riveras visited the homes of other employees after working hours to solicit
,their signatures to union cards and were successful in obtaining 35 signed cards in
this manner.
As previously found, on a Thursday morning after a union meeting held the preced-
ing evening, Assistant Superintendent Ballerino approached Mrs. Rivera whilc she was
working at her machine and asked if she would tell him the names of the employees
who attended union meetings. She replied that she did not know. Also, as previously
found, Superintendent Scherzinger frequently interrogated Mr. Rivera for the names
of employees who were in the Union. Rivera always replied that he did not know.
On one such occasion, Scherzinger stated, "You don't want to talk to me" and walked
away in anger.
As late as Sunday, March 5, 1961, Respondent thought enough of Mrs. Rivera's
work to send a telegram to her home, advising her that there would be no work
on Monday but to report for work on Tuesday. During the latter part of March
and early April, both Foreman Gold and President Alfred Gerd, on separate oc-
casions, sought to persuade Mr. Rivera to accept the job of assistant foreman in the
stitching room to fill a vacancy created by the resignation of Assistant Foreman
Rodriguez, an admitted supervisor within the meaning of the Act. Rivera refused
the offer because of his fear that this was a trap to get rid of him for his union
activities. About April 11, Foreman Gold held a meeting in his office with Mrs.
Rivera and other employees concerning production and cited Mrs. Rivera as an ex-
ample of a good producer by pointing out that she was producing at the rate of $10
a day. She was not working on piece rates at that time. Mr. Rivera, who spoke
English and Spanish, was present at this meeting in order to translate for Gold who
did not speak Spanish. The next day Mrs. Rivera was summoned to the office where
Ballerino and Scherzinger were present. Samuel Rivera was also present, having
received permission from Foreman Gold to translate for his wife. Speaking in
Spanish, Ballerrno told Mrs. Rivera that she would have to find another job because
she was producing at the rate of 50 cents an hour. Mr. Rivera then stated in English
that someone must be lying because only the other day Foreman Gold pointed
out that his wife was producing at the rate of $10 a day. At that point, as previously
found, Scherzinger stood up, pounded the desk, and angrily accused Samuel Rivera
of being the liar because he knew the names of the employees in the Union but did
not want to disclose them. Mr. Rivera replied that maybe he was lying. The
meeting ended with Ballerino's announcement that Mrs. Rivera would be put on
piecework for a 2-week probationary period. Foreman Gold then called the
Riveras into the threadroom and told them that all this trouble was happening to
them because of Samuel's refusal to take the assistant foreman's job.
During the next 2 weeks, Scherzinger, Ballerino, Gold, and Foreman Hirschberg
kept watching Mrs. Rivera at work. They would stand with their arms crossed or
their hands in their pockets, about 2 feet in front of her machine, looking directly
at her. This made Mrs. Rivera very nervous. On April 27, Foreman Gold told
Mrs. Rivera that there was no more work for her and that he did not know when
she could return to work. During layoffs on prior occasions, Foreman Gold had
told her when to report back to work and she had received telegrams recalling her.
She has never been recalled.
After the incident in the office where Scherzinger called Samuel Rivera a liar for
having stated that he did not know the names of the employees in the Union, Scher-
zinger kept watching him at work and continued to ask him to disclose these names,
which Rivera refused to do. On May 8, Foreman Gold told Samuel Rivera that he
had to lay him off. When asked for the reason, Gold could, give no reason but
repeated that "I have got to lay you off." He pounded Rivera on the back and said,
ALLURE SHOE CORPORATION 403
"Sammie, no hard feelings?" Rivera has not been recalled and no company repre-
sentative ever gave him a reason for his termination.
Elsa Pupo: Elsa Pupo was employed by Respondent from November 1956 until
April 19, 1961. She worked in the cementing and assembling departments of
the stitching room under the immediate supervision of Forelady Petris. Of the
approximately 20 employees in this department, only 4 had worked for Respondent
longer than Pupo. Forelady Petris complimented Pupo on being a good and careful
worker. Toward the end of her employment she was assigned to special samples,
a type of work which required special handling and was assigned only to the better
workers. Pupo was given more overtime work than the other girls in her depart-
ment. Except for an occasional day or two, she had never been laid off during
previous slack periods but merely worked fewer hours.
Pupo signed a union card on March 12, 1961. Forelady Petris frequently talked
to Pupo about the Union On one occasion after a number of employees had
been laid off, Pupo mentioned these layoffs to Petris, adding that she had heard that
more employees were to be laid off. Petris replied that if Pupo had not signed a
union card, she need not be afraid of anything. One Saturday when Pupo was
working overtime, Petris showed her a card from a hotel workers union, stated that
she had belonged to that union when she had worked at a hotel and that all they
did was to take her money. She told Pupo that unions were no good and warned
her not to get mixed up in it. One day Petris approached Pupo at her work and
asked if she liked the Union Pupo replied that she did not know too much about
it because she was a foreigner but that she thought that the best thing for the
employees was to have the Union at the plant. A few days before her employment
termination on April 19, Petris approached Pupo at her work, stated that she had
been told that Pupo had signed a union card, and asked whether or not that was
true. As Pupo did not wish to lie, she merely made no reply.
Before the end of the workday on April £9, Foreman Gold told Elsa Pupo that
she was being laid off temporarily, without giving her any reason for the layoff.
At that time Pupo had already started some work which she would have continued
on the following day
During the next week, Pupo called Assistant Superintendent Ballerino on the
telephone, told him that she had heard that he was accusing her of being a Com-
munist and had laid her off for that reason, and threatened to sue him fer such an
accusation. Ballerino denied the accusation and stated that Pupo had not been
laid off for that reason. Pupo then asked why she had been laid off, pointing out
that he knew she was a good worker and that new employees had been hired after
her layoff. Ballerino merely replied that when the foreman had work available
she would be called. Foreman Gold also told Pupo in response to two subsequent
inquiries that she would be called when work was available. Despite the fact
that new employees were hired in that department, Elsa Pupo has never been recalled
Ana Canut: Ana Canut was employed for over 5 years in the cementing and as-
sembling departments of the stitching room under the immediate supervision of
Forelady Petris. Her work had never been criticized by any supervisor. Upon her
return to work after a 2-day illness in January 1961, 'Petris stated that as long as
she was forelady of this department, Canut would have a job there because she was
a good worker. She often worked overtime and had never been laid off except
for vacation periods.
Ana Canut signed a union card on March 11, 1961, and thereafter attended meet-
ings at the union hall on March 22 and April 3. She was laid off on April 19 and
at that time was told by Petris that she would hear from them "very soon." Despite
the fact that new employees were thereafter hired in that department, Ana Canut
has never been recalled.
Paulina Garcia: Paulina Garcia was employed in the stitching room from January
1957 until her termination on April 28, 1961. At the time of her termination, her
immediate supervisor was Leon Hirschberg. She worked on the folding machine
and most of the time on bootstringing. Of the two other girls doing that type of
work, Garcia had been employed longer than one of them, Mary Navarro, and in
fact, at the foreman's request, taught Navarro how to do that work. During the
last month of her employment, she was on piecework and was earning more money
than on straight time
Paulina Garcia signed a union card on March 8. 1961, and attended a meeting
at the union hall on April 19. During April while Garcia was on piecework, Scher-
zinger began to talk to her about the Union. He would tour the plant with a list
of the daily piecework earnings of the employees. On such occasions he would tell
Garcia that she was a very good operator, would point out her high earnings on
662353-63-vol. 138-27
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
piecework, and then would warn her that the piecework was a good thing for her
but the Union was not. As previously found, these statements carried an implied
threat that if the Union got into the plant, Respondent would take her off piece-
work where her earnings were high. Her immediate supervisor, Foreman Leon
Hirschberg, an admitted supervisor within the meaning of the Act, spoke about the
Union to Garcia and other employees in small groups during lunch and break pe-
riods. He told them that the Union was no good, that he had belonged to one in
New York and knew from his own experience that unions were no good and that
this one in particular was no good.
On April 28, 1961, Paulina Garcia was laid off by Foreman Gold. Contrary to
the past practice in case of layoffs, she was not told when to return to work. On
June 16, she telephoned to Ballerino and asked when she should come back to
work. He replied that he would let her know .when work was available. Although
Navarro, who had less seniority than and had been laid off before Garcia, was
called back to work, Paulina Garcia was never recalled.
Alejandrina Zamora: Alejandrina Zamora was employed in the stitching room
from March 1945 until March 10, 1961, under the immediate supervision of Assistant
Foreman Rodriguez. During the last 2 years of her employment, she worked on
piecework and averaged over $108 a week. Of the six other operators doing the
same type of work, only one was senior to Zamora in length of service.
Zamora joined the Union early in its campaign and signed a union card on Feb-
ruary 14, 1961. She was on the Union's organizational committee , solicited em-
ployees to sign union cards and distributed cards to them when they left work.
About 3:30 p.m. on March 10, Superintendent Scherzinger sat down beside her
machine and kept looking closely at her without saying anything. About 4:30 that
afternoon when she finished her work for the day, Assistant Foreman Rodriguez told
her that Scherzinger and Ballerino wanted to see her in the office. In the office
Scherzinger handed her two checks and said something which she did not understand.
Zamora asked Ballerino what was going on. Ballerino told her in Spanish that
Scherzinger had said he did not need her at the present time. Zamora asked what
was the reason, pointing out to Ballerino that she was the best operator in her de-
partment, had never had a layoff, and had a lot, of work to do. He said he did not
know why she was being let go . Thereafter, Zamora telephoned to Ballerino on
three occasions to see if there was any work for her and each time Ballerino said
she would be informed when work was available. Zamora has never been recalled.
Conclusions with Respect to General Counsel's Case
A consideration of the foregoing convinces me that the General Counsel has pre-
sented a prima facie case of unlawful discrimination in the termination and failure
to reemploy these six employees. The evidence warrants an inference, which I
make, that Respondent was aware of their union activities, support, or adherence.
Respondent was clearly opposed to the Union. When these facts and the circum-
stances surrounding the terminations, hereinabove detailed, are viewed against the
background of the coercive conduct herein found to be violative of the Act (see sec-
tion B, supra) and resorted to concurrently with the discharges, a prima facie case
that these discharges were dictated by antiunion considerations is clearly established.
"To overcome the force of the General Counsel's prima facie case, it was incum-
bent upon the Respondent to go forward with proof at least equally persuasive as
that presented by the General Counsel negating the inference of unlawful conduct
flowing therefrom." 6 With this in mind, I now turn to a consideration of Re-
spondent's defenses.
b. The Respondent's case
Respondent contends that the above-named six employees were discharged along
with others because of information, which came to its attention and which it in good
faith believed to be reliable, that these individuals were pro-Castro or pro-Communist
sympathizers. Respondent is not accusing any individual employee of actually
being pro-Castro or pro-Communist. In fact, the truth or falsity of the allegations
or charges made against these individuals was not litigated in this proceeding. All
that Respondent contends is that it in good faith relied on this derogatory informa-
tion as the basis for the discharges and that therefore the discharges were for causes
unrelated to any alleged union membership or activities. In support of the Re-
spondent's contentions, the Respondent adduced the following evidence and
testimony:
G 'Wells Dairies Cooperative, 110 NLRB 875, 891
ALLURE SHOE CORPORATION 405
Over 60 percent of Respondent 's approximately 300 production employees spoke
only Spanish or substantially only Spanish . Many of them were Cuban refugees
and exiles. The politics in neighboring Cuba and the philosophy of Fidel Castro
was of great interest to the Spanish -speaking employees in Respondent 's plant as well
as to the Spanish-speaking population in Miami.
In the latter part of August or early in September 1960, a bucket of red paint was
splashed on Respondent 's front door. Ballerino was informed by Cuban employees
that this was a sign which meant that Respondent was "employing people that are
pro-Castro and that are communistic." The incident was discussed between Baller-
ino, Vice President Goodman and President Gerd, and both the police and the FBI
were informed.
In the latter part of November 1960, Ballerino received an anonymous telephone
call at the plant from a Spanish-speaking individual who told Ballerino that there
were "pro-Castro people" working in the plant who had "Communistic tendencies"
and that it would be in everyone's interest for Respondent to do something about
it. He then mentioned a list of names which Ballerino wrote down . That evening,
Goodman received an anonymous telephone call at the plant, which referred to the
earlier call to Ballerino and stated that the individuals named to Ballerino should
be terminated immediately. These calls were again discussed with President Gerd.
On November 28, 1960, Goodman called the police and turned over about 30
names to Detective Sergeant Leonard of the Metro Intelligence Unit, with a request
that he check and let Goodman know whether the accusations were accurate. A few
days later, Leonard reported to Goodman that his investigation disclosed that the
individuals whose names had been submitted to him were pro-Castro or leaned to-
ward Castro, without revealing his sources or the specific basis for his evaluations.
The same names were also given to the FBI, which refused to furnish any evaluation
to Respondent.
About the middle of December, Ballerino received another anonymous telephone
call at the plant from the Spanish-speaking individual, who gave Ballerino additional
names and warned that "measures" would be taken unless the people were removed
from the factory Respondent thereupon increased its insurance coverage to cover
bomb damage.
In early January 1961, a local Miami radio station broadcast the information that
"in a shoe factory located on N.E. 59th Street [Respondent's location] it was
rumored that there were collections made on the sidewalks by Cubans known as pro-
Fidel with the exact purpose to buy blood plasma to send to Cuba." Although Re-
spondent questioned the station manager, it was unable to identify the source of
this information.
On January 7, Ballerino received at the plant a letter in Spanish, criticizing Re-
spondent for its past conduct in employing "well known Communists" and exhorting
Respondent to "put a stop to it." Two additional names were furnished in this let-
ter. This letter was signed by Don Ligo, who was unknown to Respondent despite
its efforts to ascertain his identity.
On January 16, Ballerino received at the plant an anonymous letter in Spanish,
listing 23 alleged pro-Castro employees and urging their discharge. Ballerino made
notations on the letter concerning the operations performed by the listed individuals
to determine how badly production would be affected if they were all discharged at
that time.
In the latter part of February or early part of March, Ballerino received at the
plant a third anonymous telephone call from the Spanish-speaking individual, who
stated that Respondent had made some progress in terminating employees against
whom accusations had been made but that Respondent was now being given a dead-
line of I week to complete the cleanup.
On March 10, Goodman gave Detective Sergeant Leonard another list of about
26 names, with a similar request for a check on the accusations. About 19 of the
names on this list had also appeared on the list previously given to Leonard on Nov-
ember 28. Within a few days, Leonard again reported that all names "checked"
out as being pro-Castro sympathizers. On March 20, Goodman furnished three more
names to Leonard, who gave the same affirmative report a few days later.
On April 10, a group of eight employees, designated as the "Committee of Eight,"
met with Ballerino and gave him the names of employees whom they denounced
as being pro-Castro. Ballerino wrote all the names down on a yellow sheet of paper.
All but eight of the names appearing on this list had already been turned over to
Sergeant Leonard on the occasions previously mentioned Two of the employee
members of this committee had been furnishing Ballerino with information as to al-
leged pro-Castro employees since 1960.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 18, a letter was given to Ballerino at the plant, signed by 13 employees.
This letter denounced the "Garcia couple" for "their communistic activities" and
requested their separation from Respondent.
Meanwhile, in the early part of March, Respondent's President Gerd, Vice
President Goodman, and Assistant Superintendent Ballerino met to discuss the situa-
tion. After considerable discussion, Gerd determined and announced that it would
be the policy of Respondent to get rid of the employees believed to be pro-Castro
or pro-Communist as soon as possible, consistent with maintaining production and
deliveries, and he instructed Goodman and Ballerino to carry out this policy.
The effectuation of this policy varied somewhat as to the individual involved, the
particular job he held, or the need for his services. Employees who occupied a
critical position or whose services were needed, such as Manola Garcia and Samuel
Rivera, were retained for a longer period because of the inability to obtain qualified
replacements. The terminations were primarily disguised as "seasonal" and for "lack
of work." When the need for a layoff arose due to lack of work or seasonal slack
and the foremen asked Ballerino for advice on whom to select for layoff, Ballerino
would submit a list weighted heavily with the alleged pro-Castro group. Except
n the case of Alejandrina Zamora, the true reasons for the terminations were known
only to Gerd, Goodman, and Ballerino. Zamora was discharged outright by Scher-
zinger, although work was admittedly available for her, after Goodman had men-
tioned to Scherzinger early in March the fact that Respondent had to discharge
the employees who were believed to be pro-Castro sympathizers and named Zamora
as an employee in that category.
c. Concluding findings
(1) As to Samuel Rivera, Gladys Rivera, Ana Canut, Alejandrina Zamora, and
Paulina Garcia
Although undoubtedly exaggerated by Respondent, it is true, as the record
demonstrates to my satisfaction, that there were two opposing factions at the plant
concerning Castro and Cuban politics, and that the antagonism generated by them
was brought to Respondent's attention. Ana Canut, Alejandrina Zamora, and
Paulina Garcia are among the 23 names listed in the anonymous letter submitted to
Ballerino on January 7 and denounced as Castro sympathizers. All five appear on the
list, made by Ballerino on April 10, of those allegedly denounced by the Committee
of Eight. In addition, some of the members of the Committee of Eight identified
the names on that list whom they had denounced. Thus Quintero, who himself had
signed a union card, identified Paulina Garcia, Samuel Rivera, and Gladys Rivera.
Jose Arencibia Rivera, who had also signed a union card, testified that he had
denounced Gladys Rivera and Alejandrina Zamora to Ballerino back in 1960
Garcia was again denounced in the letter of April 18, signed by 13 employees and
given to Ballerino. It is also true that all those who names had been submitted to
Sergeant Leonard and, with one exception, all those whose names appear on Bal-
lerino's list of April 12, were no longer in Respondent's employ by the end of May
1961, whether as a result of voluntary resignations or discharges.
The most impressive and convincing evidence supporting the Respondent's position
is the testimony of Sergeant Leonard, an obviously neutral witness in the instant
controversy. Leonard is a detective sergeant with the Public Safety Department
of Dade County, Florida, attached to the Criminal Intelligence Unit. He testified
with his official file and notes before him, referred to them to refresh his recollection,
and read from them the names which had been submitted to him by Goodman.
He testified that up until August 20, 1961, Goodman had talked to him frequently
on the telephone about these matters but had given him a list of names only on
three occasions, November 28, 1960, March 10, 1961, and March 20, 1961. He
read into the record from his notes all the names given to him by Goodman on each
of the three occasions. He further testified that within a few days after each occasion,
he had reported back to Goodman that all names submitted had checked out as being
pro-Castro or leaning toward Castro. Ana Canut, Alejandrina Zamora, and Paulina
Garcia were among the names read by Leonard as having been submitted to him on
November 28, 19,60, and again on March 10, 1961; Samuel Rivera and Gladys Rivera
were among the names read by Leonard as having been submitted to him on
March 10, 1961.
A consideration of all the foregoing convinces me, and I find, that Respondent has
successfully negated the inference of unlawful conduct flowing from the General
Counsel's prima facie case as to the five employees. I further find that the preponder-
ance of the record evidence does not sustain the allegation in the complaint that
ALLURE SHOE CORPORATION 407
Respondent was discriminatorily motivated in violation of the Act in terminating
the employment of Samuel Rivera,'' Gladys Rivera, Ana Canut, Alejandrina Zamora,
and Paulina Garcia. I will accordingly recommend the dismissal of the complaint
as to them
(2) As to Elsa Pupo
The situation is different, however, as to Elsa Pupo. Her name does not appear
among those whose names were read by Leonard as having been submitted to him
by Goodman on any occasion or having been investigated by his office. When asked
why Elsa Pupo was terminated, Goodman testified that it was "due to the letters
that we had received with her name mentioned in them for her pro-Castro or pro-
communistic feelings, that the sources felt that she had." However, her name does
not appear on any such letters, nor is there any testimony that her name was men-
tioned in any telephone calls. The only place where her name appears is on the
list made by Ballerino on April 10. Yet, none of the members of the Committee
of Eight who testified could identify her name as one of those submitted or
denounced by any member of the Committee. On the other hand, Goodman and
Ballerino were at a loss to explain the failure to terminate the employment of Joaquin
Fernandez, whose name also appears on Ballerino's list of April 12 but whose name
also was not among those read by Leonard as having been furnished to him by
Goodman. Goodman at one point testified that Fernandez was not discharged
because the group which had submitted his name did not feel strongly about him
and did not push his case. However, at another point, he testified that the dis-
charges were not affected because of the pressures exerted by any groups but because
of information submitted, which Respondent believed to be true, that the individuals
were pro-Castro or pro-Communist sympathizers. Ballerino testified that he did
not get rid of Fernandez because he was not being pushed as to him and because
his name appeared only once. However, Elsa Pupo's name appears only once and
there is no evidence that anyone was pushing her case.
Upon consideration of the foregoing, and particularly the fact that Elsa Pupo, like
Joaquin Fernandez, was not reported to Sergeant Leonard for investigation but,
unlike Fernandez, was nevertheless terminated, I am convinved and find that
Respondent has not succeeded in negating the inference of unlawful conduct flowing
from the General Counsel's prima facie case as to her. The evidence does not
support Respondent's contention, which I reject in this case, that it received any
derogatory information concerning Elsa Pupo and that it discharged her in good-
faith reliance on such alleged information. As previously found, Forelady Petris
warned Pupo not to get mixed up in the Union and promised that she would not
have to be afraid of being laid off if she had not signed a union card. A few days
before her termination, also as previously found, Pupo was confronted by Petris
with a report that Pupo had signed a union card and a request for a confirmation o'
denial Pupo's silence obviously constituted a confirmation. I am convinced and
find from all the circumstances previously detailed that Elsa Pupo was selected for
termination because of Respondent's belief that she had become a supporter and
adherent of the Union. By such conduct, Respondent discriminated with respect
to the hire and tenure of employment of Eisa Pupo, thereby discouraging member-
ship in the Union, in violation of Section 8(a)(3) and (1) of the Act
2 Alphonso Delgado
Alphonso Delgado was employed as an edge trimmer in the making room from
1954 until his discharge on March 9, 1961. Until August 1960, his immediate
supervisor was Ballerino, foreman of the making room. Upon Balleiino's promo-
tion to the position of assistant superintendent, Arthur Riley became foreman of
the making room. Delgado worked on piecework, was very productive, and aver-
aged $20-$22 per day, which admittedly was far above the average earnings at the
plant. He had never previously been laid off or terminated
Delgado was active on behalf of the Shoe Workers Union in 1959 and was a union
observer in that election As previously found, during that union campaign, Bal-
lerino ordered Manuel Zamora, assistant foreman of the making room, to watch
and keep an eye on Delgado because he was active in the Union and was giving out
union cards. After the Shoe Workers Union lost the 1959 election, Delgado got
together with employees from other departments and early in 1960 went to Presi-
dent Gerd to ask for a raise and for recognition as an inside plant union. In the
presence of Sam Pipitone, the then plant superintendent, Gerd told them that a
7In view of this finding, I deem it unnecessary to, and do not, pass upon the issue as
to whether Samuel Rivera was a supervisor within the meaning of the Act
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union would not do them any good and would hinder rather than help them; Gerd
denied their request for a wage increase. In April 1960, Alphonso circulated a
petition at the plant for employee signatures, protesting Respondent's proposed
change of the vacation period from the end of June, the customary period, to the
month of May, because their children were still attending school during May. When
Ballerino saw Delgado circulating that petition among the employees, he repri-
manded Assistant Foreman Zamora for permitting Delgado to do so. B allerino asked
Zamora what kind of a foreman he was, and whether he was "for the company or
for the people." He then directed Zamora to "keep an eye on Alphonso and keep
watching him." Delgado, together with the other edge trimmers, presented this
petition to Ballerino and Sam Pipitone. The then Superintendent Pipitone told
Delgado that Respondent could not give vacations in June, and that if Delgado made
"any further problem" for the Company they would "have to get rid" of him.
Ballerino told Delgado to retrieve the petition which was still circulating among
the employees and to tear it up.
Beginning with December 1960, Delgado told Foreman Riley, who had also been
a union observer in 1959 before he became foreman, that the situation in the plant
had become very bad for the employees and that it was necessary to organize a
union to help them. Riley replied that he did not think the employees would suc-
ceed in organizing a union because they had failed so many times in the past.
Nevertheless, Delgado proceeded to organize for the Union 8 In December he
and employee Miguel Gonzalez went to the union hall where they obtained about
150 union cards. Thereafter, they made appointments with Respondent's employees
for the purpose of soliciting their signatures to these cards. These appointments
were usually at Alphonso's house or at the employees' homes. Prior to March 8,
when the Union began to hold regular meetings at the union hall, meetings were
held at the homes of Delgado and Miguel Gonzalez. An organizational committee
to lead the campaign was formed, with Delgado being one of its members. Delgado
was successful in obtaining signed union authorization cards from about 6 or 7
employees in December 1960, and about 10 employees in each of the months of
January, February, and March, 1961. These signatures were obtained by Delgado
either in his automobile outside the plant, or in the washroom during a break
period, or at his home during lunch period or after work. All the signed cards
which he had obtained were turned over by Delgado to the union officials at the
first regular union meeting at the union hall on the evening of March 8, 1961, the
day before Delgado's discharge.
As previously found, during the morning coffee break on March 9, Delgado spoke
to employee Zapata and another employee about going to Delgado's home for the
purpose of signing a union card. During the lunch period that day, also as pre-
viously found, Ballerino engaged in surveillance of Delgado while he was driving
employee Zapata to Del.-ado's home to have Zapata sign a union card. After get-
ting Zapata's signature on a union card, Delgado drove back to the plant As he
entered the plant, he passed Ballerino who did not answer Delgado's greeting. Del-
gado resumed his work at the end of the lunch period.
About a half or three-quarters of an hour later, Ballerino and Scherzinger ap-
peared with two lots of shoes upon which Delgado had worked that morning. There
were about 20 pairs of shoes in each lot Foreman Riley and the two other edge
trimmers were also present. Riley asked who had worked on these lots. After
looking at the ticket, Delgado frankly admitted that he had. Scherzinger was speak-
ing in English, stating that it was poor work and that Delgado would have to be
discharged. Delgado, who did not understand English, asked Ballerino what was
going on. Ballerino then told Delgado in Spanish that his work on those shoes was
bad and that he could not continue to work there any longer. Delgado was told
not to do any more work but to wait for his checks, which were brought to him
within a short time in full payment of all work performed by him up to that moment.9
8 Although there is some confusion in the record as to the exact date on which Delgado
signed a union card , it is clear and I find that he became active on behalf of the Union
in December 1960 and continued his activity until the date of his discharge
9 Scherzinger also testified that, according to Ballerino's translation to Scherzinger dur-
ing the incident described in the text, Delgado had admitted that the work was bad and
that Scherzinger had spoken to him about the quality of his work on a previous occasion.
Neither Riley nor Ballerino corroborated Scherzinger in this respect. Neither one testified
that Delgado had made such admissions or that Ballerino had so reported to Scherzinger.
Nor were any of the other edge trimmers who were present at that incident called to
testify with respect to this matter On the other hand, Delgado testified that the shoes
in the lots in question were well made I have already found Scherzinger not to be a
ALLURE SHOE CORPORATION 409
Respondent's Defenses and Concluding Findings
Respondent contends that Delgado was discharged for doing bad work, after hav-
ing previously been warned to that effect. Ballerino testified that the two lots of
shoes on March 9 were discovered by him during a routine tour of inspection, that
Scherzinger agreed the shoes were poorly trimmed, and that Delgado had been
doing bad work for about 5 years. He testified that Delgado had been warned
twice in 1958, three times in 1959, and on January 10, 1961. It seems unlikely
that Delgado would have been retained in Respondent's employ for 5 years if dur-
ing that period he was as poor a worker as Ballermo painted him to be. It is true
that Delgado was a fast worker and on occasion had shoes returned for him to retrim
or touch up. However, Foreman Riley testified that he had returned shoes to the
other edge trimmers also, and that he never discussed the quality of Delgado's work
with either Ballerino or Scherzinger. As the edge trimmers are paid on piecework,
they admittedly do not get credit for doing the work over. Delgado could have
redone the two lots of shoes in question in about a half hour.
Ballerino had Delgado watched because of his union activities during the 1959
campaign, as previously found. In early 1960 Delgado asked President Gerd to
recognize him and his group as an inside plant union. Gerd refused, pointing out
that a union would do them more harm than good. In April 1960, Delgado was
instrumental in having a petition circulated among the employees, protesting Re-
spondent's proposed change of vacation period. Ballerino reprimanded Assistant
Foreman Zamora for permitting Delgado to engage in this type of activity, admon-
ished Zamora to keep an eye on Delgado, and ordered Delgado to get the petition
and tear it up. Sam Pipitone, the then plant superintendent, turned down the peti-
tion and warned Delgado that if he made "any further problem" for the Company
they would "have to get rid" of him. In December 1960 Delgado informed Foreman
Riley of the employees' desperate need for union organization. Ignoring Riley's
opinion that a union would not succeed in getting established at the plant in view of
the past failures, Delgado became one of the first promoters of the Union. From
December until his discharge he was active in soliciting and obtaining employee sig-
natures to union cards, held meetings in his home, and became an early member of
the organizational committee. He obtained about 35 signed union authorization
cards. On one occasion, as previously found, Superintendent Scherzinger told a
group of English-speaking female employees that he did not think "the Cuban people
had any right to come over here and try to start trouble" by working for the Union.
During the lunch period on March 9, Ballerino engaged in surveillance of Delgado
while he was driving an employee home for the purpose of obtaining his signature
to a union card. About three-quarters of a hour after the lunch period, Delgado
was summarily discharged allegedly for doing poor work on two lots of shoes, with-
out being permitted to finish out the day's work and contrary to the past practice of
returning such work to be redone inasmuch as the edge trimmers did not receive
credit for redoing faulty work because they were paid on a piece rate.
Upon consideration of all the foregoing and the entire record as a whole, I am
convinced and find that Respondent's supervisors were aware of Delgado's union
activities, just as they were aware of his union and concerted activities in 1959 and
1960, that the alleged bad work on March 9, 1961, was seized upon as a pretext to
cloak a discriminatory motive, and that Delgado's discharge was truly motivated by
a desire to "get rid" of an employee who was believed to be making "further trouble"
for the Company by again attempting to get a union selected as the employees' bar-
gaining representative. By such conduct, Respondent discriminated with respect to
the hire and tenure of employment of Alphonso Delgado, thereby discouraging mem-
bership in the Union, in violation of Section 8(a)(3) and (1) of the Act.
3. Otmara Guerrero 10
Otmara Guerrero was employed in the stitching room for about 11h years before
her discharge on April 24, 1961. At the time of her discharge she was working on
the taping machine. She signed a union card on February 10, 1961, at the solicita-
tion of employee Alberto Gonzalez. Thereafter, she passed out union cards, actively
solicited employee signatures, attended union meetings, and was a member of the
organization committee.
credible witness in other respects Under all the circumstances, I do not credit Scher-
zinger's testimony in this respect, and find that Delgado did not in fact make such admis-
sions to Ballerino
"Her married name is Peplow.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Superintendent Scherzinger, Assistant Superintendent Ballerino, Foreman Gold,
and Forelady Petris were all aware of her strong union interest and activities. Thus,
as previously found, these supervisors engaged in the following conduct during the
months of March and April: Ballerino told her that he knew she was a union sup-
porter and was on the organizational committee, tried to persuade her that she was
doing the wrong thing, and promised her a wage increase if she would act
as a company informer and give him the names of employees attending union meet-
ings. Guerrero declined to do so. On another occasion, he had a long discussion
in his office with her about the Union, told her that unions in the South are
different from those in the North and that the Company would always do what they
wanted regardless of the Union. He also told her that her fellow workers would
now get the impression that she was on the Company's side because of her long
absence in the office. On still another occasion, after Ballerino had observed her
talking to a union representative outside the plant, he urged Guerrero to use her
head and promised to help her if she would disclose the names of the employees
attending union meetings. Guerrero again refused, explaining that she did not want
a raise at the expense of "selling my fellow workers down the river." On still
another occasion late in April, Ballerino again talked to her in his office, warning
her that he had already given her sufficient time to think things over, but offering
to give her one more opportunity to disclose the names of those on the organizational
committee and the ones attending the union meetings . Guerrero replied that her
decision remained unchanged and that she would never inform on her fellow
workers. Scherzinger asked on one occasion if Leo Medford, a fellow employee,
had joined the Otmara club. When Otmara Guerrero replied in the affirmative,
he then asked if Otmara also had a union card for him, stating that he would like
to sign one too. Gold warned Guerrero on one occasion in April that her con-
tinued support of and activities on behalf of the Union might jeopardize her employ-
ment with Respondent. Petris admitted that she might have seen Guerrero passing
out union literature and that , in response to Guerrero 's question on one occasion,
stated that she personally did not like the Union because of her past unsatisfactory
experience with a hotel workers union.
During lunch period one day in April, Guerrero took a paper coffee cup and,
as a joke, pasted a piece of paper on it containing the following in Spanish; "A
collection for Otmara, and if this goes on this way, we will starve to death." She
gave the cup to some of her fellow employees who, in turn, passed it on to other
girls in the department. The cup was then placed on Otmara's machine in plain
view of everyone, including Foreman Gold. The girls regarded it as a joke and
dropped pennies into the cup. Foreman Gold laughed about it and asked Otmara
what it said. She replied that she did not know the English translation. Gold took
the cup into the office where a Spanish-speaking clerk translated it for him, and
then returned and asked Otmara what the meaning of this was She replied that
it was only a joke and that it was not intended to offend anyone.
Guerrero's Discharge
The Respondent contends in its brief that "Otmara Guerrero was terminated for
ridiculing and interfering with the acceptance of the piece rate system through
`horseplay ' during working hours," referring to the paper coffee cup incident. The
General Counsel contends that the cup incident merely served as a pretext to conceal
Respondent 's discriminatory motivation for discharging Guerrero . The parties are
in agreement that Guerrero was discharged on Monday afternoon , April 24. The
testimony is in dispute as to whether the cup incident occurred on the same day
on which she was discharged , as the Respondent contends , or on an earlier date, as
the General Counsel contends . The testimony is also in dispute as to what occurred
in her discharge interview.
a. The General Counsel's version
Shortly after 4 p.m. on Monday, April 24, Guerrero was called into the office where
Ballerino, Scherzinger, and Gold were present. Ballerino stated that they had al-
ready given her sufficient time about the Union and wanted to know her final
decision. She replied that her decision was the same as ever. At that point Scher-
zinger pounded the table and, according to Ballerino's translation, said, "Let's finish
with this crap." Guerrero indicated her indignance over the use of such language
to her. Scherzinger then took out of his desk the paper coffee cup in which Guerrero
had made her collection, and showed it to Guerrero. She stated that the cup was
hers and asked that it be given to her. Scherzinger replied that it belonged to the
Company. When Guerrero stated that the pennies in the cup were hers, Scherzinger
ALLURE SHOE CORPORATION 411
counted 25 pennies in the cup. Guerrero then stated that if he wanted to turn the
money over to Respondent's president he could do so. Ballerino, who had been
acting as interpreter, at that point interjected that he had already told Scherzinger
that she was not afraid of anybody. Scherzinger then put a quarter on the table,
told Guerrero to take it, replaced the cup with 25 pennies in it in the desk drawer,
and indicated that the cup would be used against her. She was then told to return
to work. About 20 minutes later, Ballerino brought Guerrero two checks and told
her that this was the result of her not having helped them and "not having used her
head."
The foregoing reflects the testimony ' of Otmara Guerrero. She emphatically
denied that she was discharged on the same day on which she made the collection
in the coffee cup, and testified that she was discharged from a few days to 10 days
after the cup incident. Carmen Blanco testified that she remembered the incident
of the coffee cup collection, that it occurred on a Thursday or Friday, that she
remembered the day when Guerrero told her at the plant that she was fired, and
that this was 3 or 4 days after the cup incident.
b. The Respondent's version
Ballerino and Scherzinger testified substantially as follows: Foreman Gold brought
a paper coffee cup into the office, containing the Spanish inscription previously de-
scribed, and reported that Guerrero was taking up a collection for herself and
creating a disturbance. Guerrero was immediately called to the office, told that she
was taking up a collection against company rules and creating a disturbance, and
was discharged. Ballerino then got her checks and that was the end of it. Three
employees, who were still working for Respondent at the time of their testimony,
and Forelady Petris testified on direct examination that they no longer saw Guer-
rero at work after the day on which she took up the collection in the paper coffee cup.
c. Analysis and concluding findings
On cross-examination, one of the employees admitted that she "would not swear
positively" that she did not see Guerrero at work after the cup incident, another em-
ployee admitted that Guerrero could have worked the next day or the next 10 days
without being seen by her, and Forelady Pettis admitted that she did not know for a
fact that Guerrero was not working at the taping machine after the cup incident and
that she would not state under oath that she did not see Guerrero working at the
taping machine for 10 days thereafter. Further, Ballerino testified on cross-examina-
tion that "to the best of my recollection" Guerrero was terminated on the day that
she took up the collection, and then admitted that "possibly" his recollection might be
faulty in that respect Finally, Ballerino admitted on cross-examination that he
had received complaints from two employees about Guerrero taking up a collec-
tion "substantially before she was actually discharged" and that he did not recall
whether on that occasion he spoke to her about it or told the foreman to speak to
her. There is no evidence that Guerrero took up more than one collection.
Respondent's brief states that Guerrero was discharged for ridiculing and inter-
fering with the acceptance of the piece-rate system through "horseplay" during work-
ing hours, referring to the paper cup collection incident. No mention is made of
any alleged violation of a company rule. Ballerino testified that he discharged
Guerrero for taking up a collection without permission from the Company in viola-
tion of a company rule and for ridiculing the piecework system with the inscrip-
tion on the cup. He further testified that he told Guerrero that he was not so much
concerned about her violating a company rule, but by her conduct in "throwing
monkey wrenches into" the piecework program. While on direct examination he
had also testified that Guerrero "was not cooperative in her work, not cooperative
at all in piece work," on cross-examination he admitted that he could not recall that
she was uncooperative in any fashion. She admittedly had not worked on piece-
work. Scherzinger, on the other hand, testified that he was the one who told Bal-
lerino to discharge Guerrero, that he did not fire her for protesting about the piece-
work, but solely for taking up a collection in her department He admitted that
he did not know whether she was a good or bad worker. He further testified that
no one had the right to discharge anyone in the plant without consulting him, a
statement obviously contrary to the admitted facts. Scherzinger also testified that
he did not then, and does not to this day, know what was written on the paper
coffee cup As the cup and the original 259 pennies were saved for the instant hear-
ing and the cup was introduced into the record as an exhibit by Respondent, it seems
most unlikely to me that Scherzinger was still unaware of what was written on it.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ballerino testified that there is a company rule prohibiting collections by employees
without permission from the office, and that a notice to that effect, both in Spanish
and in English, had been posted on the bulletin board since 1957 or 1958. President
Gerd testified that while the Company has a rule against collection by employees,
it is not a written rule and that he does not remember any notice to that effect ever
being posted in the plant. Employees who were called as witnesses both by the
General Counsel and by Respondent testified that they had never seen any such notice
posted in the plant. Indeed no employee testified to being aware of the existence of
such u company rule. On the other hand, the record shows that collections of the
kind made by Guerrero occurred in a joking manner frequently and openly in this
department, without prior permission from Respondent and without anyone being
disciplined."
Upon consideration of the foregoing analysis and the demeanor of the witnesses,
I credit the General Counsel's version, including the testimony of Guerrero, and
find that (1) the cup incident for which Guerrero was discharged occurred prior to
April 24, the date of her discharge, and (2) the cup incident was seized upon as a
pretext to conceal a discriminatory motivation. In view of the conduct of Ballerino,
Scherzinger,ia and Gold, previously described, I am convinced and find that Guerrero's
discharge was truly motivated by her staunch union support and refusal to act as a
company informer and disclose the names of employees attending union meetings. By
such conduct, Respondent discriminated with respect to the hire and tenure of em-
ployment of Otmara Guerrero, thereby discouraging membership in the Union, in
violation of Section 8(a)(3) and (1) of the Act.
4. Alberto Gonzalez
Alberto Gonzalez was employed from February 12, 1960, until May 9, 1961.
He worked under the supervision of Foreman Hirschberg and Gold and was able to
operate various different types of machines, such as perforating, nailhead, booth
trimming , and handfolding. At times he was instructed by Hirschberg and Gold to
teach new employees how to operate some of these machines. There were also times
when he helped Hirschberg give out the work to the other operators. In addition,
he did incidental maintenance work, such as helping carpenters, moving machinery,
fixing lights, and oiling machinery. He did not work on piecework at any time.
Gonzalez signed a union card on March 9, 1961, and was a member of the or-
ganizational committee. He solicited employees to sign union cards outside the
plant and at the employees' homes and was successful in getting 10 signed cards
which he turned over to the Union. He also attended all the union meetings except
on one occasion when he was sick. Shortly after March 15, 1961, when Gonzalez
attended his first union meeting, Ballerino and Scherzinger for the first time began
watching Gonzalez at the plant. As Gonzalez credibly testified without dispute,
"every time I raised my head I found one of them was looking at me" and on
other occasions "when I'd look around towards the rear, one of them would be
there watching me." One Wednesday, Scherzinger asked Gonzalez if he wanted
to work that night. Gonzalez replied that he had to go to school that evening.
Whereupon Scherzinger asked, "To school or to the party?" Actually, Wednesday
night was not a school night for Gonzalez but was the regular weekly meeting
night of the Union. Scherzinger had never made such a request of Gonzalez before
the union meetings started. Indeed, the plant does not operate at night. Scherzinger
admitted that on one occasion in March, in response to employee Perez' statement
about having to attend a union meeting , he asked Perez whether some of those
fellows had told him he had to attend, pointing to Alberto Gonzalez who was work-
ing nearby.
About 2 weeks before his layoff, Gonzalez was called into the office where Ball-
erino, Scherzinger, and Gold were present. Ballerino stated that Gonzalez was
working too slow for piecework. Gonzalez explained that he was not working on
piecework because he worked on too many different jobs which were not on piece-
work. Foreman Gold then interjected that Gonzalez was correct because he was
doing a different type of work almost every day. Gold also explained that Gonzalez
u For example, there were collections where pennies were solicitated to buy one em-
ployee a pair of shoes, to get another employee a haircut, and to buy a part for another
employee's car.
120f additional significance is Scherzinger 's statement to a group of English -speaking
female employees that he did not think "the Cuban people had any right to come over here
and try to start trouble" by working for the Union, as previously found, and his angry
accusation that Samuel Rivera was lying when he stated he did not know the names of
employees in the Union , also as previously found.
ALLURE SHOE CORPORATION 413
was a good mechanic and was used whenever there was a need for a major job.
Ballerino laughed and left the office. After they left the office, Gold told Gonzalez
that he should continue to work in the same manner as previously, just doing general
all-round work.
Gonzalez was given an "indefinite" layoff on May 9, 1961. At that time Gonzalez
was working on a perforating machine and still had 8 to 10 dies of shoes upon which
he could have worked He has never been recalled to work
Respondent contends in its brief that Gonzalez was laid off indefinitely during
a seasonal layoff and was never recalled because he was a slow worker. However,
neither Ballerino nor Vice President Goodman, the only witnesses who testified for
Respondent as to the layoff of Gonzalez, testified that Gonzalez was a slow or in-
efficient worker or that he was not recalled for that reason. Both testified that he
was laid off for lack of work. Goodman further testified that he was replaced as
a nailhead operator by someone from a rehabilitation center when Respondent was
trying to institute a program for the use of handicapped workers. However, the
nailhead machine was only one of the many machines operated by Gonzalez. Indeed
Respondent's termination records list Gonzalez as a booth trim operator. More-
over, no explanation at all was given by Ballerino or Goodman as to why Gonzalez
was not recalled when his alleged replacement on that machine admittedly committed
suicide. On the other hand, while work at the plant was slow, there was still work
available for Gonzalez at the time of his layoff, as previously found. Finally,
when there was a seasonal layoff in the preceding year, Gonzalez was not laid off
"indefinitely" but was told when to report back to work.
In view of Alberto Gonzalez' extensive union activities, the efforts of Ballerino
and Scherzinger to find out the names of employees attending union meetings
and in the Union, the conduct of Scherzinger and Ballerino in watching Gonzalez
at the plant after he started to attend union meetings, Scherzinger's unusual conduct
in asking Gonzalez to work on a night when a union meeting was to be held,
despite the fact that the plant does not operate at night, and then asking Gonzalez
if he was going to attend "the party" that night, an obvious reference to the union
meeting,13 and Scherzinger's questioning of Perez as to whether Gonzalez was one
of the fellows who told Perez he had to attend union meetings, I am convinced and
find that Scherzinger and Ballerino knew or believed Alberto Gonzalez to be an active
union supporter I further find, upon consideration of all the foregoing and the
record as a whole, that the selection of Gonzalez, who was experienced in the opera-
tion of many types of machines and was also a satisfactory maintenance mechanic,
for an "indefinite" layoff and the failure to recall him at any time was truly motivated
by such knowledge or belief. By such conduct Respondent discriminated with respect
to the hire and tenure of employment of Alberto Gonzalez, thereby discouraging
membership in the Union, in violation of Section 8(a)(3) and (1) of the Act
5. Cipriano Dopico
Cipriano Dopico was employed by Respondent in the compo room from July 1959
to May 5, 1961. He started work as a four-part laster. Thereafter, he filled in on
different machines whenever there was a vacancy. He thus acquired the different
skills necessary to operate different types of machines in the compo room. At the
time of his layoff, he was doing heal seat Lasting. He had been complimented on
his work by his foreman, Mike Pipitone, an admitted supervisor within the meaning
of the Act.
Dopico signed a union card on March 7, 1961, and attended all weekly union
meetings beginning with March 8. He was the only employee in the compo room
who was on the Union's organizational committee. He solicited employee signa-
tures to union cards outside the plant before and after work and at the homes of
employees. One day in April, Foreman Pipitone asked Dopico if he liked the
Union. Dopico replied that he did. Thereupon Pipitone stated, "Oh, that is no
good," waving his hand in a manner as if to say goodby. Thereafter, Pipitone was
not "quite as amicable as he had been."
Dopico was laid off on May 5. 1961, by Foreman Pipitone, who told Dopico at that
time to report back on June 5. As Dopico had to go to the doctor on June 5, he
telephoned to Pipitone that morning and was told by Pipitone that there was no
work available yet and that there would probably be a delay of 3 or 4 more weeks
Thereafter, he telephoned to Pipitone every Monday until he received his W-2
income tax withholding forms on July 7. Each time he asked Pipitone when he was
13 Scherzinger frequently used similar terms to refer to a union meeting Thus, as previ-
ously found, he frequently asked Leo Medford on the morning after a union meeting
whether she enjoyed the dance the preceding evening
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
going to have work, and each time Pipitone gave the same reply, that it would be
another 3 or 4 weeks. Dopico made no further inquiries after July 7, because he
was led to believe by some individual that the mailing of the tax withholding papers
meant that he would no longer be employed. Meanwhile, during the period from
June 15 to August 23, 1961, five new employees were hired in the compo room.14
In addition, employees laid off at the same time as Dopico were reemployed.
Respondent contends in its brief that Dopico was not reemployed because he did
not report back on June 5, as instructed by Pipitone, and that no vacancy was avail-
able when he did seek reinstatement at a later date. Ballerino testified that Dopico
was laid off during a seasonal layoff for lack of work. He further testified that he
knew that Foreman Pipitone recalled Dopico when work was available, and that
Dopico did not come back on the date on which Pipitone had asked him to return.
Ballerino gave no explanation as to how he knew these matters. Most significantly,
Foreman Pipitone did not testify and Respondent made no showing nor claim that
he was unavailable. Under these circumstances, I credit the testimony of Dopico,
who impressed me favorably as a credible witness, concerning his telephone con-
versations with Pipitone on and after June 5. Moreover, even accepting Respond-
ent's version, no explanation is offered as to why new employees were hired for the
compo room as late as July and August in place of Dopico who had demonstrated
his skill in operating different types of machines and had filled in whenever there was
a vacancy.
Dopico was a very active supporter of, and solicitor for, the Union. He was the
only employee in the compo room who was on the Union' s organizational com-
mittee. When Foreman Pipitone learned of Dopico's union interest , he indicated
that it meant "goodby" for Dopico. After a seasonal layoff, Respondent kept
putting off the recall of Dopico with the excuse that work was not yet available
while at the same time hiring five new employees for the compo room, and reemploy-
ing other laid-off employees. I am convinced and find that Respondent's failure to
reemploy Dopico, a satisfactory employee and an experienced operator on different
types of machines, on and after June 5, 1961, was truly motivated by a desire to
rid itself of a strong and active union adherent. By such conduct Respondent
discriminated with respect to the hire and tenure of employment of Cipriano Dopico,
thereby discouraging membership in the Union, in violation of Section 8(a)(3) and
(1) of the Act.
6. Termination allegedly for lack of efficiency and potential
According to President Gerd, Respondent for the first time lost money in 1960.
Among the moves made to increase efficiency and to reduce costs was the institution
of time studies of all the operations. In February 1961, Gerd announced to Vice
President Goodman, Superintendent Scherzinger, and Assistant Superintendent
Ballerino the policy of instituting time-study ratings of efficiency and of eliminating,
as quickly as possible without interruption to production, those employees who did
not "earn their keep" or show improvement or potential, regardless of seniority
"In other words," as Gerd testified, employees were to be terminated "if they didn't
have any hopes of improving and if it looked like it was a lost cause after examining
the efficiency reports." Thus, Ballerino also testified that "the fact that an employee
was low efficient[ly] didn't necessarily mean that she would be terminated for her
efficiency. If she was cooperative and showed willingness and there was a willing-
ness, then that girl might be retained."
a. Leo Medford
Medford was employed in March 1960 as a taping machine operator. In March
1961, Foreman Gold asked Medford if she would be interested in learning the
operation of the stitching machines which were being run by Marion Lewis, who
was being promoted, adding that Lewis had recommended her. Medford agreed
to try the new assignment. Shortly thereafter, Gold instructed Medford to teach
her old job of running the taping machine to Otmara Guerrero, while she (Medford)
was being taught the operation of the stitching machines by Lewis. During'the
next 6 weeks, Medford was taught how to operate four different kinds of stitching
machines, including the threading, cleaning, and changing of bags and needles.
Upon Guerrero's discharge on April 24, Gold put Medford back on her former
14 Respondent's employment records in evidence show the following new hires: June 8-
David Lewis, 4-part Laster ; June 12-Jerry Murry and William Convrnoyer, side last and
toe last, respectively: July 27-Andy Scacciaferro, side last; and August 23-Adolfo
Navas, staple side last
ALLURE SHOE CORPORATION 415
job of running the taping machine. About a week later, Gold told Medford that
he was laying off Maria and that Medford was to run Maria's taping machine in
addition to her own. From that time until her termination on May 12, Medford
ran the two taping machines and also did some stitching on one machine whenever
they ran behind on the stitching machines.
Respondent contends in its brief that Medford was terminated "permanently" on
May 12, 1961, during a slow period because on the basis of her efficiency records
"it was determined that she had neither present efficiency nor future potential."
In support of its position, it introduced the time-study efficiency ratings for her for
the period from February 11 to the date of her termination. According to these
records, Medford did not make the piece-rate earnings.
However, according to the uncontradicted and credible testimony of Medford,
who examined these records when she testified on rebuttal, they do not fully and
accurately reflect the work which she had been doing. Thus, there were slow
periods when she was given "fill in" work which does not have a piece rate and is
not reflected on these records. Nor do the records indicate that some of the work
recoided thereon was not her normal operation and that during a considerable period
of time covered by these records she was also learning to operate the stitching
machines.15 Also, beginning with about May 1, Medford began running two taping
machines and would have to go back and forth from one to the other, as work was
needed on the respective machine. The records take no account of this arrangement
and of the time consumed in going back and forth from one machine to the other.
Medford had never received any complaints about her own production on the
taping machine, nor had she ever been warned that she would not be retained if
she did not do better.16 Moreover, assuming, contrary to my previous finning, that
Ballerino had told Medford on May 3 that she would not be retained if she did
not do better, Respondent's own production records for the week ending May 13
show that she did in fact do remarkably better. Her efficiency had improved over
50 percent and she came within a few dollars of making the piece-rate earnings for
a 40-hour week, the best record she had for any 1 week Clearly, her performance
during that week demonstrated "potential" and at the very least indicated that there
was hope of improvement and that it was not a lost cause, the test enunciated by
President Gerd for being retained. Clearly, she had also demonstrated that she
was "cooperative" and that there was a "willingness," factors which Ballerino testified
would determine whether an employee would be retained even if her efficiency might
be low.
Medford signed a union card on March 9, 1961, was appointed to the Union's
organization committee, and attended the union meetings. In addition, she solicited
the English-speaking female employees to sign union cards. About 2 weeks before
her termination, she held a union meeting at her home for the English-speaking
female employees, inviting the employees during lunch time at the plant as well
as by telephone calls. As previously found, Superintendent Scherzinger interrogated
Medford concerning who was attending union meetings. His customary way of
referring to a union meeting was to ask Medford on the morning after a union
meeting how she had enjoyed the dance the preceding night. On another occasion,
Scherzinger asked if Medford had joined Otmara's (Guerrero) club yet, another
obvious reference to the Union, and Otmara replied that she had. One time while
Marion Lewis was teaching Medford how to operate the stitching machine, Foreman
Hirschberg asked Lewis why she was spending so much time working with Medford
when Medford was working for the Union. On another occasion, Foreman Gold
is Ballerino admitted that "it's possible" she was learning to operate the stitching
machine during that time but that he did not "recall"
ie Ballerino testified that he "believed" he talked to Medford about her low efficiency
in February or March After refreshing his recollection by looking at a warning slip
initialed by him and dated May 3, he testified that it was in May that he told her about
her low efficiency and that she would not be retained if she did not do better, and that
after she left the office he made out the warning slips (Respondent's Exhibit No. 18)
Significantly, this warning slip is neither signed nor initialed by Foreman Gold, Medford's
immediate supervisor, as was the usual practice. On cross-examination 2 days later,
Ballerino testified that the last time he talked to Medford about her efficiency was about
3 or 4 weeks before her discharge . Medford , unlike Ballerino , impressed me as a forth-
right and candid witness, whose contrary testimony, set forth in the text, I credit
Upon consideration of the foregoing testimony of Ballerino, the fact that I have found
him not to be a credible witness in other respects , and his demeanor on the witness stand.
I do not credit the foregoing testimony of Ballerino . Nor can I attach any weight to
the warning notice , a self-serving document , which was initialed only by Ballerino ad-
mittedly without anyone being present and without having been shown to Medford.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told Medford to listen to Marion and that Marion could teach her more about
making shoes than the Union ever could. With the layoff of Alberto Gonzalez on
May 9, 1961, Medford became the only member of the union organization com-
mittee left in the stitching room.
Upon consideration of all the foregoing and-the entire record as a whole, including
Ballerino's antiunion conduct and his efforts to ascertain the members of the organiza-
tion committee and those attending union meetings, I am convinced and find (1) that
Ballerino as well as other supervisors of Respondent were aware of Medford's
union membership and activities and (2) that her selection for permanent termina-
tion on May 12, 1961, despite the fact that she had never been warned or criticized
about her production and had satisfied Respondent's standards for being retained
even on the basis of production records which do not fully and accurately reflect
the work she had been doing, was truly motivated by a desire to rid Respondent of
a strong union adherent. By such conduct, Respondent discriminated with respect
to the hire and tenure of employment of Leo Medford, thereby discouraging mem-
bership in the Union, in violation of Section 8(a)(3) and (1) of the Act.
b. Berta Gonzalez
Berta Gonzalez was employed by Respondent from December 30, 1957, until May
9, 1961. At the time of her termination, she was working in the packing room,
under the supervision of Evelyn Dallier. She had performed various types of work,
such as making ornaments, lacing shoes, pairing shoes with correct ornaments, clean-
ing linings, and cleaning soles. She always made the piece rate whenever there was
enough work on ornaments, and pointed this out to Ballerino on her weekly produc-
tion records. In March or April 1961 she was put on cleaning soles temporarily,
due to the illness of one of the girls. She worked on that assignment for about a
week, making up to $12 a day, which Forelady Dallier admitted was "pretty good."
When another employee performing that work died, Berta asked Forelady Dallier
to keep her on that assignment. Dallier said she would talk to Ballerino about it.
Berta also asked Ballerino to be allowed to continue in that assignment, pointing out
that she got along very well and would be able to earn "quite a bit of money." Bal-
lerino replied that that was up to Evelyn Dallier. The next day, that work was
assigned to another person. Berta had been assigned to cleaning linings for a short
time prior to her termination. She had complained to Dallier and to Ballerino
about this assignment, pointing out that that was not her regular work. Dallier
replied that she had been ordered to put Berta on that work.
On May 9, Forelady Dallier told Berta Gonzalez that she was being laid off for
2 or 3 weeks. Berta protested that she was not the most recent employee in the
department and that she still had work to do. A few days later Berta Gonzalez
telephoned to Ballerino and asked whether her termination was permanent or whether
she would be called back. Ballerino assured her that she would be recalled and
reminded her to report to the State unemployment commission so that she would
be able to receive her unemployment insurance "even if it was only for a week or
so." Berta Gonzalez has never been recalled, although Respondent's records in
evidence show that three new girls were hired in the packing department to perform
work which she had been doing.i7
Respondent contends that Berta Gonzalez was permanently terminated because of
her low production record, after having been warned several times. Ballerino testi-
fied that on March 20 he warned Berta that her efficiency was still low and that she
would be given 2 days to show that she was making an effort to make the piece rate.
Respondent's own production records show that during the following week ending
April 7, 1961, Berta made more than the minimum rate and was paid on the piece-
rate basis. These production records further show that during the weeks ending
April 21 and 27, she made the piece-rate basis. While she fell below by only $2.43
during the week ending May 6, she again earned more than her hourly rate during
the last week of her employment. Thus, Berta had demonstrated not only a "poten-
tial" but an actual ability to make the piece-rate production and had thereby satisfied
Respondent's standard for being retained.
Ballerino further testified that he was informed by Forelady Dallier on May 9
that there was work available for only one bow girl. that Berta Gonzalez and Carmen
Montero were the only two bow girls in the packing department at that time, and
that he selected Berta Gonzalez because Montero's production records showed that
she had always made the piece rate. While it is true that Montero was a better
0
17 June 27-11ilda Fernandez , ornaments ; June 29-4Mlgdalta Menda, bow girl ; and
July 26-Patricia Miller, bow girl
ALLURE SHOE CORPORATION 417
producer than Gonzalez , the fact remains that work again became available for
two bow girls as well as for other work which Berta had been doing. Despite the
fact that Berta had demonstrated in the last month of her employment that she was
able to produce on the piece-rate basis and despite Ballerino's promise to recall
her, new employees were hired instead.
Berta Gonzalez signed a union card on January 2, 1961, and attended union meet-
ings at the union hall. About 2 weeks before her termination, Berta Gonzalez ac-
cused Ballerino of having discharged her husband on account of the Union and
wanted to know if he was also looking for a pretext to get rid of her. Ballerino
denied the accusation, and stated that he was not afraid of the Union and that if the
Union got in he would know what to do.
Upon consideration of all the foregoing and the entire record as a whole, includ-
ing Ballenno's antiunion conduct and his efforts to ascertain the names of those at-
tending union meetings, I am convinced and find (1) that Ballerino was aware of
the union membership and activities of Berta Gonzalez and (2) that her selection for
permanent termination, despite the fact that she satisfied Respondent's standards for
being retained and despite Ballerino's promise to recall her, was truly motivated by
a desire to rid Respondent of a strong union adherent. By such conduct, Respond-
ent discriminated with respect to the hire and tenure of employment of Berta Gon-
zalez, thereby discouraging membership in the Union, in violation of Section 8(a)(3)
and (1) of the Act.
c. Carmen Blanco
Carmen Blanco was employed as a hand cementer in the stitching room off and
on for about 8 years until her termination on May 8, 1961. She signed a union card
on March 6, 1961, and attended union meetings. She was given an indefinite termi-
nation by Foreman Gold on May 8, 1961.
Blanco testified that in the fall of 1960 she went back to the plant to see about
her job, that she talked to Foreman Hirschberg, and that the following took place:
Hirschberg told the switchboard operator to tell Ballerino that Carmen Blanco wanted
her job back and that "she is one of the girls we laid off because they wanted the
Union in." On direct examination she testified that Hirschberg walked away and
then returned and stated that he will send her a letter if he would need her. On
cross-examination, she testified that it was the switchboard operator who told her
that Ballerino said he would send her a card if he needs her. She denied that Vice
President Goodman was present at any time during the conversation.
Hirschberg testified that Blanco asked him if there was any work for her, that he
told her there was not any at present, and that that was all there was to it. He
denied talking to the switchboard operator or making the statements attributed to him
by Blanco. He further testified that while he did not "remember exactly," he
° thought that Goodman was "standing there."
Goodman testified that he was present during the entire conversation between Blanco
and Hirschberg, that Blanco merely asked Hirschberg if she was needed, she was
told she was not, and she left. He further testified that the switchboard operator
has orders not to convey messages back to the plant herself, but to "plug in" a sep-
arate telephone located at the switchboard for the inquiring party.
I have previously discredited Carmen Blanco and found that she was not a reliable
witness. Under all the circumstance, I do not credit Blanco's testimony concern-
ing Foreman Hirschberg's statements to the switchboard operator, and accept as
true the testimony of Hirschberg and Goodman as to what occurred on that occasion.
It is Respondent's contention that Blanco was permanently terminated because of
the low efficiency based on her production records. These production records clearly
show that Blanco was about 40 percent off from the piece-rate basis, with no ap-
preciable improvement during the last 6 weeks of her employment. On cross-exam-
ination, she admitted that Forelady Petris had told her several times that she was
going too slow and that she replied she was going as fast as she could. While I am
convinced that Ballerino was aware of her union membership and activities, it never-
theless is apparent that, unlike Leo Medford and Berta Gonzalez, Blanco did not
demonstrate any "potential" for making the piece-rate production or that it was not
a lost cause in that respect.
Upon consideration of all the foregoing, I am not persuaded that the General
Counsel has sustained the allegation of the complaint that Blanco's termination was
discriminatory and violative of the Act I will accordingly recommend dismissal of
the complaint as to her.
d. Adoracion Delgado
Adoration Delgado was employed as a hand cementer in the stitching room from
June 1960 until April 19, 1961. She signed a union card on March 28 and attended
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union meetings. She also talked to the employees about the Union whenever there
was an opportunity.
Respondent contends that Adoracion Delgado was terminated permanently for
low efficiency based on her production records. These records show that, while her
production was not as low as that of Blanco, there was no marked improvement which
might indicate a potential to achieve the piece-rate production or that it was not a
lost cause in that respect. Under the circumstances, while I am convinced that Re-
spondent was aware of Adoracion Delgado's union membership and activities, I am
not persuaded that the General Counsel has sustained the allegation of the com-
plaint that the termination of Adoracion Delgado was discriminatively motivated in
violation of the Act. I will accordingly recommend dismissal of the complaint as
to her
7. Miguel Gonzalez
Miguel Gonzalez was employed as a shoe repairer under Forelady Dallier from
March 1957 until February 20, 1961. He was paid on a piecework basis since
1960.
Miguel had been active on behalf of the Shoe Workers Union in 1959, and had
acted as a union observer in that election. On January 1, 1961, he signed a card
for the Charging Union, and also became a member of the organizing committee
Therefore, he passed out cards and solicited employee signatures during breaks.
lunch periods, and after working hours. On one occasion during a coffee break.
he was ,giving some cards to another employee solicitor when he saw Ballerino and
Scherzinger looking at him about 9 feet away. I am convinced and find that
Scherzinger and Ballerino were aware that Miguel Gonzalez was an active union
adherent at the time of his discharge.
Respondent contends that Miguel Gonzalez was discharged on February 20, 1961,
for claiming credit on a lot of shoes, consisting of 22 or 23 pairs, on which he had
performed no work With respect to this incident, Ballerino, Scherzinger, and
Dallier testified, in substance, as follows: During one of his routine inspection tours
through the plant, Ballerino noticed that one particular lot of shoes had not been
repaired. He asked Forelady Dallier, who was passing by, if that lot had been
repaired. Dallier at first assumed that it had been because the lot was already
beyond the repairer's area. Upon checking, she agreed that no repair work had been
performed on that lot. Scherzinger was then called over and shown the shoes. The
ticket accompanying the case of shoes was checked and it was Miguel Gonzalez'
case. Dallier then went over to Gonzalez' work area, checked his production sheet
which is used for pay purposes, and noted that he had listed the case for credit.
Gonzalez was then called over and shown the case of shoes. He merely shrugged
his shoulders and said that they should send them back and he would repair them.
At Scherzinger's instructions, Ballerino informed Gonzalez that the Company could
not tolerate a situation where an employee takes credit for work that he did not
perform and tries to get away with it. He was then discharged on Scherzinger's
orders.
Miguel admitted that the ticket on the case of shoes was his, that he had signed
his name to indicate that he had repaired it, and that he had replied that they should
bring them back to his table and he would do them over. He testified, however, that
he had in fact repaired the shoes and that he had so stated to Ballerino. Antonia
O'Halloran, to whom this lot of shoes was turned over for repair, credibly testified
that none of the 22 or 23 pairs involved had been repaired. Under all the circum-
stances, I do not credit the testimony of Miguel Gonzalez and find that, whether by
accident or design, he had not in fact repaired the shoes in question but had signed
the ticket indicating that he had repaired them.
In view of all the foregoing, I am not convinced that the General Counsel has
sustained his burden of establishing by a preponderance of the credible evidence
that the discharge of Miguel Gonzalez was discriminatorily motivated in violation
of the Act. I wil accordingly recommend the dismissal of the complaint as to him.
8. Eduardo Cardounel
Eduardo Cardounel was employed on August 29, 1960, as a floorboy in the stitch-
ing room. On May 8, 1961, he was laid off by Foreman Gold when work became
slack The following August, Mrs. Cardounel, who was working for Respondent,
asked Ballerino if her husband would be called back to work. Ballerino replied
that work was picking up and to have her husband come in. Eduardo Cardounel
thereupon reported to the plant and spoke to Ballerino about returning to work
Ballerino told Cardounel that he had been laid off by mistake, that it was probably
because the foreman did not like the way he worked, that he (Ballerino) knew he
ALLURE SHOE CORPORATION 419
was a good worker, and that he could return to work if he wanted to. Cardounel
resumed working again on August 29, 1961 . He voluntarily quit about 21/2 months
later because he could not get along with his new foreman.
During February and March 1961, Cardounel had accompanied Samuel Rivera
when the latter went to employees ' homes, soliciting signatures to union cards.
However, Eduardo Cardounel himself did not sign a union card until April 26, 1961
Nor did he attend any union meetings prior to his layoff. He testified that Samuel
Rivera had told him not to attend any union meetings because it would make it
more difficult for Respondent to know that he was a member of the Union. In his
pretrial affidavit , dated May 10, 1961, Cardounel states that "I don 't believe that
they even suspected I was for the Union." He further testified that he did attend
union meetings after his layoff.
Upon consideration of all the foregoing , I am not convinced that the General
Counsel has sustained his burden of proving by a preponderance of the credible
evidence that the layoff of Eduardo Cardounel on May 8, 1961, was discriminatorily
motivated in violation of the Act . I will accordingly recommend the dismissal of
the complaint as to him.
IV. 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 operations of the Respondent described in section I, above,
have a close , intimate , and substantial relation to trade, traffic , and commerce
among the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that 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 found that Respondent violated Section 8(a)(3) and ( 1) of the Act
by the employment termination of Elsa Pupo, Alphonso Delgado, Otmara Guerrero.
Alberto Gonzalez , Cipriano Dopico, Leo Medford, and Berta Gonzalez, I recom-
mend that, except in the case of Alphonso Delgado, Respondent offer them imme-
diate and full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges , and make them
whole for any loss of earnings they may have suffered by reason of such discrimina-
tion by payment to each of a sum of money equal to that which each normally
would have earned as wages from the date of termination to the date of said offer
of reinstatement , less his or her net earnings during such period, such sums to be
computed in accordance with the formula established by the Board in F. W Wool-
worth Company , 90 NLRB 289 , 291-294.
In the case of Alphonso Delgado, Respondent contends that it would in any event
have discharged him because of derogatory information received concerning his
alleged pro -Castro sympathies . Alphonso Delgado appears on the list , compiled
by Ballerino on April 10, 1961, of those allegedly denounced by the Committee of
Eight. Florencio Aquino, a member of the Committee of Eight, identified the name
of Alphonso Delgado on that list as one whom he had denounced to Ballerino
Finally, Alphonso Delgado was among the names read by Sergeant Leonard as
having been given to him by Goodman on March 20 and whom he reported to
Goodman a few days later as having checked out to be pro-Castro or leaning toward
Castro. In view of Respondent 's established policy of eliminating all employees
who, it in good faith believed , were pro-Castro , consistent with production and
deliveries , and in view of the decisive weight which I have accorded to Sergeant
Leonard 's testimony as supporting Respondent 's position in this respect , I am con-
vinced and find that Alphonso Delgado would in any event have been terminated
for nondiscriminatory reasons sometime after March 20, 1961 . The exact date can
only be determined in the compliance stage of this proceeding . I therefore will not
recommend the reinstatement of Alphonso Delgado but will nevertheless recommend
that Respondent make him whole for any loss of earnings he may have suffered
from the date of his discriminatory discharge to the date when,'he would have been
terminated for nondiscriminatory reasons, in the same manner set forth in the
preceding paragraph.
In view of the nature and extent of Respondent 's violations, and because discrim-
inatory discharges go to the very heart of the Act,18 I am convinced that it may be
18 N.L R B. v Entwistle Mfg. Co, 120 F 2d 532 , 536 (C A 4)
662353-63-col 138-28
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anticipated from Respondent's past conduct that Respondent may commit other
violations of the Act in the future. Accordingly, I find it necessary in order to
effectuate the policies of the Act to recommend that Respondent cease and desist
from infringing "in any other manner" upon the rights of its employees as guaranteed
in the Act, in addition to those rights found to have been violated herein.
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. Local 885, Retail, Wholesale and Department Store Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
2. By discriminating with respect to the hire and tenure of employment of Elsa
Pupo, Alphonso Delgado, Otmara Guerrero, Alberto Gonzalez, Cipriano Dopico,
Leo Medford, and Berta Gonzalez, and thereby discouraging membership in the
aforesaid labor organization, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By the above conduct and by the conduct of Superintendent Scherzinger, Assist-
ant Superintendent Ballerino, Forelady Petris„and Foreman Gold detailed in section
III, B , 5, supra, the Respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act by the employment terminations of Samuel
Rivera, Gladys Rivera, Ana Canut, Alejandrina Zamora, Paulina Garcia, Carmen
Blanco, Adoracion Delgado, Miguel Gonzalez, and Eduardo Cardounel.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and'
upon the entire record in the case, I recommend that Respondent, Allure Shoe
Corporation, Miami, Florida, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf of Local 885, Retail,
Wholesale and Department Store Union, AFL-CIO, or in any other labor organiza-
tion, by discriminatorily discharging its employees, or by discriminating in any
other manner in regard to their hire and tenure of employment or any term of
condition of employment.
(b) Interrogating employees concerning their own and other employees' union
membership, activities, sympathies, and the names of employees attending union
meetings, in a manner constituting interference, restraint, and coercion within the
meaning of Section 8 (a) (1) of the Act.
(c) Asking employees to report and inform on the union membership and ac-
tivities of other employees, and promising wage increases or other economic benefits
for acting as such informer.
(d) Engaging in surveillance of employees' union activities and leading employees
to believe that it has informers attending union meetings.
(e) Warning employees that, they would be assigned to less remunerative work if
the Union got into the plant and that their continued union adherence and activities
would jeopardize their jobs, and promising that they need not fear a layoff if they
had not signed a union card.
(f) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights to self-organization, to form labor organizations, to
join or assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, 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.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Offer to -Elsa Pupo, Otmara Guerrero, Alberto Gonzalez, Cipriano Dopico,
Leo Medford, and Berta Gonzalez immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their seniority and other
rights and privileges, and make them and Alphonso Delgado whole for any loss of
pay they may have suffered by reason of the discrimination against them, in the
manner set forth in the section entitled "The remedy."
ALLURE SHOE CORPORATION 421
(b) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records relevant to the amount of
backpay due and to the reinstatement and related rights provided under the terms
of this recommended order.
(c) Post at its plant in Miami, Florida, copies of the notice attached hereto marked
"Appendix." 19 Copies of said notice, to be furnished by the Regional Director for
the Twelfth Region (Tampa, Florida), shall, after being duly signed by a representa-
tive of the Respondent, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that such notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Twelfth Region, in writing, within 20
days from the date of this Intermediate Report and Recommended Order, what steps
the Respondent has taken to comply herewith 2°
I further recommend that the complaint be dismissed insofar as it alleges that Re-
spondent violated the Act by the employment terminations of Samuel Rivera, Gladys
Rivera, Ana Canut, Alejandrina Zamora, Paulina Garcia, Carmen Blanco, Adora-
tion Delgado, Miguel Gonzalez, and Eduardo Cardounel.
IB In the event that these recommendations be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted tor the words
"Pursuant to a Decision and Order."
p In the event that this Recommended Order be adopted by the Board this provision
shall be modified to read : "Notify said Regional Director, in writing, within 10 days from
the date of this order , what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of Local 885,
Retail, Wholesale and Department Store Union, AFL-CIO, or in any other
labor organization, by discriminatorily discharging any of our employees, or by
discriminating in any other manner in regard to their hire and tenure of employ-
ment or any term or condition of employment.
WE WILL NOT interrogate employees concerning their own and other em-
ployees' union membership, activities, sympathies, and the names of employees
attending union meetings, in a manner constituting interference, restraint, and
coercion within the meaning of Section 8 (a) (1) of the Act.
WE WILL NOT ask employees to report and inform on the union membership
and activities of other employees, and we will not promise wage increases or
other economic benefits for acting as such informer.
WE WILL NOT engage in surveillance of employees' union activities, and we
will not lead employees to believe that we have informers attending union
meetings.
WE WILL NOT warn employees that they would be assigned to less remunera-
tive work if the Union got into the plant and that their continued union ad-
herence and activities would jeopardize their jobs, and we will not promise
that they need not fear a layoff if they had not signed a union card.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor organi-
zations, to join or assist the above-named or any other labor organization, to
bargain collectively through representatives of their own choosing, to engage
in other concerted activities for the purpose of collective bargaining, or other
mutual aid or protection, and to refrain from any and all such activities.
WE WILL offer to the following named employees immediate and full
reinstatement to their former or substantially equivalent positions, without prej-
udice to their seniority and other rights and privileges, and we will make them
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Alphonso Delgado whole for any loss of pay they may have suffered by
reason of the discrimination against them:
Elsa Pupo Otmara Guerrero
Alberto Gonzalez Cipriano Dopico
Leo Medford Berta Gonzalez
All our employees are free to become, remain, or refrain from becoming or re-
maining, members of the above-named or any other labor organization.
ALLURE SHOE CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Ross
Building, 112 East Cass Street, Tampa 2, Florida, Telephone Number, 223-4623,
if they have any question concerning this notice or compliance with its provisions.
King's Department Store , Inc. and Retail Textile Clerks Local
Union No. 454 , AFL-CIO. Ocise No. 27-CA-1157. Auqust 31,
1962
DECISION AND ORDER
On May 14, 1962, Trial Examiner Herman Marx issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint, and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Intermediate Report. There-
after, the General Counsel filed exceptions to the Intermediate Report
and a supporting brief, and the Respondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.2
[The Board dismissed the complaint.]
1 With respect to the allegation of surveillance, we agree with the Trial Examiner's con-
clusion that the General Counsel failed to sustain his burden of proof In this connection,
we construe the Trial Examiner's findings as a resolution of credibility against the General
Counsel's witnesses.
9 We hereby correct the following inaccuracies in the Intermediate Report, which do not
materially affect the Trial Examiner ' s findings , conclusions , or recommendations Under
"III B, The allegations of interference, restraint, and coercion," contrary to the Trial
Examiner, we find that the record shows that Respondent's store manager, Gilcreast
assembled the employees for a meeting on the day following his return to Denver, rather
than on the same day (see transcript, p 77). Also, contrary to the Trial Examiner,
we find that the record shows that the Board agent called employee Layton in the evening
to make arrangements apparently for an interview during the day (see transcript p 50),
as Layton saw him the next morning.
138 NLRB No. 43.