Briggs, Arthur, Inc.

National Labor Relations Board - Board Decisions

Nov 3, 1982

265 N.L.R.B. 299 (N.L.R.B. 1982)

ARTHUR BRIGGS, INC.
Arthur Briggs, Inc. and Knitgoods Workers' Union,
Local 155, I.L.G.W.U., AFL-CIO. Cases 2-
CA-17519, 2-CA-17825, 2-CA-18066, and 2-
RC-18849
November 3, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On May 14, 1982, Administrative Law Judge
Robert T. Snyder issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and General Coun-
sel filed a statement in support of the Administra-
tive Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces u that the resolutions are incorrect. Standard Dry Wall Prductr
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
We do not adopt the Administrative Law Judge's finding that Gold-
stein was "meek and easily dominated or intimidated" and would credit
Goldstein's testimony with respect to Maldonado's strike misconduct
without relying on such finding.
We also find it unnecessary to rely, in issuing a bargaining order, on
the Administrative Law Judge's finding that the election results were
"close."
' In adopting the Administrative Law Judge's conclusion that Re-
spondent violated Sec. 8(a)(Xl) of the Act by its deliberate surveillance of
union leafletting on the day of the election, designed to discourage union
activity, and that this surveillance was objectionable conduct that war-
rants setting the election aside, we also rely on Woodland Molded Platcsia
Corp., 250 NLRB 169 (1980), and cases cited therein. See, generally,
Cannon Electric Company, 151 NLRB 1465, 1468-69 (1975).
s We find that the nature of Respondent's unfair labor practices war-
rants the issuance of a broad cease-and-desist order, under the standards
set forth in Hickmott Foods, Inc.. 242 NLRB 1357 (1979). and we have
modified the Administrative Law Judge's recommended Order and notice
accordingly.
We will also order Respondent to expunge from its records any refer-
ence to its unlawful refusal to reinstate Paul Lynch, and to any other un-
lawful discipline against him, and to notify Lynch that it has done so. See
Sterling Sugars Inc., 261 NLRB 472 (1982).
265 NLRB No. 38
Arthur Briggs, Inc., Bronx, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph l(d):
"(d) In any other manner interfering with, re-
straining, or coercing its employees in the exercise
of the rights guaranteed them in Section 7 of the
Act."
2. Insert the following as paragraph 2(b), and re-
letter the subsequent paragraphs accordingly:
"(b) Expunge from the records of Paul Lynch
any and all written reports, notations, or memoran-
da reflecting its refusal to reinstate him, or other
unlawful discipline against him, and notify him in
writing that this has been done and that evidence
of this refusal to reinstate him, or of other unlawful
discipline, will not be used as a basis for future dis-
cipline against him."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to close our plant if
Knitgoods Workers' Union, Local 155,
I.L.G.W.U., AFL-CIO, becomes our employ-
ees' collective-bargaining representative, and
WE WILL NOT keep under surveillance the
union and protected concerted activities of our
employees.
WE WILL NOT discourage membership in
Knitgoods Workers' Union, Local 155,
I.L.G.W.U., AFL-CIO, or in any other labor
organization, by refusing to reinstate strikers,
upon their unconditional request, to existing
vacancies with full seniority rights and privi-
leges.
WE WILL NOT refuse to recognize and bar-
gain in good faith with the aforementioned
Union as the exclusive bargaining representa-
tive of our employees in the following appro-
priate unit:
All full-time and regular part-time produc-
tion and maintenance employees employed
by us at our Bronx, New York facility, ex-
cluding all office clerical employees, guards
and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
299
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exercise of rights guaranteed in Section 7 of
the National Labor Relations Act.
WE WILL offer Paul Lynch immediate and
full reinstatement to his former job or, if that
job no longer exists, to a substantially equiva-
lent position of employment, without prejudice
to his seniority or any other rights or privi-
leges previously enjoyed, and WE WILL make
him whole for any loss of wages which he
may have suffered by reason of our discrimina-
tion against him, together with interest.
WE WILL expunge from the records of Paul
Lynch any and all written reports, notations,
or memoranda reflecting our refusal to rein-
state him, or other unlawful discipline against
him, and WE WILL notify him in writing that
this has been done and that evidence of this re-
fusal to reinstate him, or other unlawful disci-
pline, will not be used as a basis for future dis-
cipline against him.
WE WILL recognize, effective from the date
beginning August 20, 1980, and, upon request,
bargain collectively and in good faith with
Knitgoods Workers' Union, Local 155,
I.L.G.W.U., AFL-CIO, as the exclusive repre-
sentative of all employees in the appropriate
unit described above, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement.
ARTHUR BRIGGS, INC.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge: These
are consolidated cases heard in New York on July 12,
14, and 15, 1981. Upon charges filed by Knitgoods
Workers' Union, Local 155, I.L.G.W.U., AFL-CIO,
herein called the Union, a consolidated complaint in
Cases 2-CA-18519, 2-CA-17825, and 2-CA-18066 was
issued on June 29, 1981, alleging that Arthus Briggs,
Inc., herein called Respondent, violated Section 8(a)(1)
of the Act by threatening employees with plant closure if
the Union became its employees' collective-bargaining
representative and by keeping under surveillance em-
ployees who were engaged in protected concerted activi-
ties; violated Section 8(a)(1) and (3) by refusing to rein-
state two striking employees upon their unconditional
offer to return to work at the conclusion of a strike con-
ducted by certain of its employees against Respondent;
and violated Section 8(a)(1) and (5) by refusing and fail-
ing to bargain collectively with the Union as the repre-
sentative of its employees in a unit appropriate for the
purposes of collective bargaining; and alleging that these
unfair labor practices are so serious and substantial in
character as to warrant the issuance of a remedial bar-
gaining order.
Case 2-RC-18849 arises out of a representation elec-
tion conducted by the Regional Director on May 5,
1981, upon a petition filed by the Union in a unit com-
posed of all full-time and regular part-time production
and maintenance employees employed by Respondent at
its Bronx, New York, facility. Among 28 employees who
voted in the election,' 15 voted against the Union, 9
voted for the Union, 2 ballots were void, and 2 ballots
were challenged. After the Union filed timely objections
to the election, on July 9, 1981, the Regional Director
issued a notice of hearing on the objections and an order
consolidating cases. Concluding that inasmuch as the
unfair labor practice allegations in the outstanding con-
solidated complaint encompassed the conduct alleged as
objectionable, and the issues raised thereby could best be
resolved on the basis of record testimony at a hearing,
and in order to avoid duplication findings, unnecessary
costs, or delay, the Regional Director ordered a hearing
be held on the objections and that it be consolidated
with the hearing scheduled on the consolidated com-
plaint. In its timely filed answer, Respondent denied the
commission of any unfair labor practices alleged.
Upon the entire record, including my observation of
the demeanor of the witnesses and after careful consider-
ation of the post-hearing briefs filed by Respondent and
the General Counsel, I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT AND THE STATUS
OF THE UNION
Respondent is a New York corporation with an office
and place of business located in Bronx, New York,
where it is engaged in the manufacture and nonretail sale
and distribution of knit goods and related products. In
the course and conduct of its business operations, Re-
spondent annually sells and ships from its Bronx, New
York, facility goods and materials valued in excess of
$50,000 directly to points outside the State of New York.
Respondent admits and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, and that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES AND
OBJECTIONS.
A. The Union's Organizing Drive, Bargaining
Demand, and Strike and the Employer's Responses,
Including Alleged Unlawful Prepetition Conduct
In July 1980,2 Norman Lewis, a union organizer, re-
ceived a telephone call from employee Paul Lynch. A
group of Respondent's employees had met and deter-
mined they needed a union. One of them, Lucas Colon,
who was Spanish-speaking, asked Lynch to make the call
i The tally of ballots listed the approximate number of eligible voters
as 42.
2 All references to dates hereinafter are to 1980, unless otherwise
noted.
300
ARTHUR BRIGGS, INC.
as he did not speak English well. The day following the
call, Lewis met with a small group of employees, at
noontime, a block or two from the factory. Present with
him were employees Raphael Ramos, Lucas Colon, and
Christian Delamos. Another meeting was arranged with
the aim of involving more workers. This second meeting,
held on July 16, in Crotona Park, two blocks from the
plant, was attended by 16 to 18 employees. Lewis ex-
plained the benefits of unionization and a dozen or more
employees signed union authorization cards. A third
meeting was held a week later to which Lewis brought a
Spanish interpreter to assist him in communicating with
the workers. Additional authorization cards were signed
on this occasion. Both Paul Lynch and Antonio Maldon-
ado were among the most active employees on behalf of
the Union. Maldonado made home visits to solicit cards
among Spanish-speaking employees and Lynch distribut-
ed cards to four or five other workers.
By the summer of 1980, Paul Lynch had been em-
ployed as a presser by Respondent for over 21 consecu-
tive years, having started in 1959. Arthur Briggs, an el-
derly man in his late seventies, had operated the same
business since 1940, initially as sole proprietor and, since
its incorporation in 1956, as president and sole sharehold-
er. Briggs testified as to his knowledge of an interest
taken over the years by the Union in organizing his em-
ployees. He acknowledged he knew and had seen a
union organizer, Willard Aldrich, handing out union
pamphlets in front of the factory on a number of occa-
sions in the past, most recently 2 or 3 years before.
Briggs also believed that Lynch and Aldrich, both black
men, were friends and acknowledged he had seen them
talking during the Union's earlier organizing effort.
Then, on August 19, Briggs saw Aldrich once again in
front of the plant entrance giving out union pamphlets.
According to Lynch, later in the day on August 19,
just before quitting time, Briggs called Lynch to the
plant office and told him "I see your old friends are
back. I had spoken to you and told you my place was
too small and I can't afford to have no union." Briggs
identified the "friends" as the Union. Briggs also said he
was going to close the place if the Union came in. Briggs
then pulled out an old clipping containing a list of com-
pany names and said he had done work for Lord Jeff
and the Union put that company and others on the list
out of business.
By August 11 the Union had obtained 22 valid authori-
zation cards among the 36 full-and regular part-time pro-
duction and maintenance employees,3 and by August 20
the Union had 23 cards. On August 20 shortly before
closing time, Lewis and Aldrich visited Respondent's
Bronx facility. They rang a bell and, as they were ad-
mitted through the main entrance door into an office
area by a young female, Lewis asked for Mr. Briggs.
Lewis and Aldrich moved toward the plant floor and
were met by Briggs who came toward them. Lewis in-
troduced both himself and Aldrich, identified himself and
3 Respondent admits both the appropriateness of this unit for the pur-
poses of collective bargaining within the meaning of Sec. 9(b) of the Act
and that as of August II a majority of the emplyees in the unit had desig-
nated and selected the Union as their representative for the purposes of
collective bargaining.
Aldrich as from the Union, and told Briggs they were
there because they represented a majority of his workers,
and the Union sought recognition and would like to sit
down and talk or he should call Mr. Green, the manager
of the Union, and set up an appointment.s
According to Lewis, Briggs, became agitated and ex-
cited; he said he was not interested in the Union and "if
he really knew who we were and he had an opportunity
to prevent us from entering his plant, he would have."
He said other shops under contract with Local 155 and
the I.L.G.W.U. had gone out of business and asked if the
Union had gotten jobs for the employees who had lost
them. Briggs continued, as far as the people are con-
cerned, if they wanted better conditions they could go
elsewhere and get employed. When Lewis responded
that they represented a majority of the people and
wanted to sit down and discuss wages, hours, and condi-
tions of employment, Briggs responded by saying,
"Look, I don't need this," and he pulled out a "for sale
sign" and said, "I will put this plant up for sale if the
Union comes in." Briggs commented he did not want to
hear anything about the Union, and repeated that if the
plant would become union he would close the plant and
sell it and retire to Florida. He added he did not need
the headache.
Aldrich testified that after Lewis had introduced the
two of them, and explained their majority status and
desire to negotiate, Briggs said he "didn't want to know
nothing [sic] about the Union and if he had known that
we were from the Union he wouldn't have let us in."
Briggs rejected Lewis' offer of a business card and then
started talking about how many shops the Union had
closed or put out of business, and that he "didn't want
no [sic] part of the Union and he was going to sell the
place before he would recognize the Union." Briggs then
picked up a sign in his office; he said, "This is a for sale
sign and I will put it out and retire because I don't need
it." Briggs continued, "I am 78 years old, I don't need
the business." When Lewis then asked him why he
should sell the place just because the Union represented
a majority of his people, Briggs replied, "I don't want to
recognize the Union."
While Lewis recalled other people being in the plant,
he said they were some distance from them and he did
not know if any workers overheard the conversation.
The meeting ended by Briggs requesting they leave the
premises.
The organizers had arranged for the workers to wait
after quitting time so they could be informed of the re-
sults of the meeting with Briggs. There were 23 or 24
employees waiting up the street some distance from the
plant. The organizers explained what had happened
when they had made their demand, repeating Briggs'
words to them, including his threat to close up the place
4 Respondent admitted the allegations of par. 8 of the complaint that
on or about August 20 the Union, orally and in person at Respondent's
facility, requested Respondent to recognize it as the exclusive collective-
bargaining representative of Respondent's employees in the P and M unit
previously described and to bargain collectively with it as the exclusive
collective-bargaining representative of said employees with respect to
their rates of pay, wages, hours of employment, and other terms and con-
ditions of employment.
301
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and go to Florida, and expressed the view that it was an
unfair labor practice to state he wanted to close the
place.5 Lewis spoke to the workers in both English and
Spanish and where he had difficulty in communicating
with them employee Christian Delamos translated for
him. Various workers-among them Lynch and Maldon-
ado-then said they wanted to strike and all of the em-
ployees present then voted to go on strike the following
morning.
Early the following morning, August 21, 20 to 23 em-
ployees arrived outside Respondent's premises; a picket
line was formed and the strike commenced. Among
other legends on the signs were ones accusing Respond-
ent of being "Unfair to Labor."6 There were 23 to 25
employees engaged in the strike. Lynch and Maldonado
were designated to be in charge of the picketing in Al-
drich's absence and took turns starting up the line early
in the morning. Maldonado, in particular, remained in
front of Respondent's premises on Sundays in addition to
the other days, since Briggs was at the premises on
weekends.
The picketing continued until sometime in November,
and the strike continued until December 15, when the
Union notified Respondent it was discontinuing to strike
and made an unconditional offer on behalf of the striking
employees to return to work.
From August 25 until September 15, Respondent vol-
untarily closed the factory, although both Briggs and his
son-in-law and vice president, David Goldstein, contin-
ued to come to the premises every day.
On Sunday, September 7, Maldonado was stationed
outside the factory with a picket sign when Briggs
emerged from inside the building at or about I 11 a.m. car-
rying a case of soda. According to Maldonado, Briggs
asked him to carry it to his station wagon parked around
the corner. As the two of them walked along, Briggs
brought up the subject of the strike. He said he wanted
to speak with Maldonado to straighten out the case, that
Maldonado should speak to the guys, his coworkers, and
tell them that he did not want the Union because he had
to pay a lot of money for the Union, a sum of S72,000 a
year, and that he would prefer to close than let the
Union in and that he would prefer to close in a couple of
months. Maldonado replied that he would try and speak
to the guys and tell them this. Maldonado left the case at
Briggs' car, went back to get the picket signs, and went
home.
On October 10, the Union filed the certification peti-
tion in Case 2-RC-18849.
Briggs denied ever talking with Lynch about the
Union, and specifically at closing time on August 19, the
day before the union officials came to the plant. He also
denied uttering any threats to Maldonado on September
7. Briggs was an evasive, obstinate, and contradictory
witness whose testimony I find to be essentially unreli-
able. Briggs testified initially as an adverse party called
& Lynch, who was present, testified that he could not recall telling
union representatives about Briggs' conversation with him the day
before.
* The complaint does not allege, and the General Counsel disclaimed
during the hearing, that the strike was either caused or prolonged by the
unfair labor practices which are the subject of this proceeding.
under section 611(c) of the Federal Rules of Evidence
during presentation of the General Counsel's case.
Briggs explained that in over 40 years in business he
was aware of quite a few shops that had become union-
ized and then had failed and gone out of business. Briggs
then agreed that it was his belief that the Union was a
destructive force in that regard. Shortly afterward
Briggs categorically denied he ever had the belief that
unions are a destructive force. He then noted that when
the organizers had come to the plant he had told Aldrich
that in many cases unions have put companies out of
business. At one point Briggs acknowledged fear that his
own shop could be put out of business by the Union, yet
he refused to answer what his state of mind was regard-
ing the Union on August 20 when the organizers visited
his shop, stating, "And I do not wish to discuss it," and
then claimed he did not understand a question asking es-
sentially the same information. Yet, at the same time,
Briggs acknowledged that the union agents made no
wage or other economic demands on Respondent during
their visit.
Briggs asserted that he told the agents that the did not
believe they had a majority of his people, but he did not
ask them to show proof, and even if they had he would
not have negotiated with the organizers because he did
not believe they had the authority to do so and this was
the only objection he had at the time and he told them
so.
At first Briggs denied that his employees knew as of
September that he did not like the idea of a union
coming in his shop but immediately was forced to retract
that answer when shown his pretrial affidavit taken by a
Board agent which contained a sworn statement directly
contrary. Further, according to Briggs, only "a few" of
his employees went on strike on August 21, which is di-
rectly contrary to the substantial weight of the evidence.
In other places in his testimony, Briggs' responses co-
incided with those of Lewis and Aldrich regarding their
August 20 meeting. Thus, Briggs said he was shocked to
see the two men and that the female employee who re-
sponded to their ring had no business letting them in.
Briggs also conceded he may have told the organizers
that he did not want a union in his shop. Briggs' evasion
and disingenuousness is perhaps best illustrated by the
strained construction he placed on the statement about
closing the business he made during the meeting. Ac-
cording to Briggs, he told Lewis and Aldrich that it
might be better closing before signing rather than go
broke and discontinue later after signing. There is not
one answer that Briggs gave duirng his testimony both
during the General Counsel's and Respondent's cases
which supports the view that Briggs at any time serious-
ly entertained the thought of recognizing or dealing with
the Union to determine its demands or to legitimately
seek to reach an accommodation with the Union. Briggs'
answer represents a transposition of the actual feelings he
had expressed on that occasion so as to place himself in
the best possible light as a fatalist who saw the end result
of any negotiation process as a failure for his business. In
light of all the other evidence of the conversation
present on this record, I cannot credit Briggs' carefully
302
ARTHUR BRIGGS, INC.
constructed and subtle testimonial response as represent-
ing his actual response on the day in question. Both
Lewis and Aldrich, neither of whom heard the other tes-
tify pursuant to an order of sequestration of witnesses
successfully sought by Respondent's counsel, substantial-
ly corroborated each other's version of the meeting, and
I credit them.
As to his conversation with Maldonado on September
7, Briggs acknowledged that he gave the carton of bot-
tles to Maldonado to carry to his car after Maldonado
offered to carry it, but testified that there was no conver-
sation between them during the 5-minute walk because
construction work on the street on which the plant abut-
ted affected conditions on the sidewalk, forcing them to
proceed in single file with Malonado walking ahead. But
those conditions did not foreclose conversation at the
outset, or once they had turned the corner or arrived at
Briggs' car. Briggs also claimed that he would not speak
to Maldonado or ask him to speak to other employees
because he, Maldonado, had no authority. Yet, the occa-
sion of Maldonado's presence outside the plant on a
Sunday after the strike had commenced and before
Briggs had decided to call back the nonstriking employ-
ees to work presented a good opportunity for Briggs to
seek to persuade a key union adherent while the two
were alone to make clear to his coworkers on strike that
the plant would close before Briggs would ever agree to
increased wages and benefits. As I have found, Briggs
had already made the same point with the two organiz-
ers on the day of the Union's bargaining demand, but
without success. Maldonado's account of the talk was
straightforward and to the point and consistent with
Briggs' prior conversation with Lewis and Aldrich. I
credit Maldonado's account.7
With respect to Lynch's account of his conversation
with Briggs on August 19, in view of Briggs' admitted
frame of mind with respect to the Union's destructive
force on companies' economic well being, his admitted
statements dwelling on this concern, his statement of
regret that the organizers ever gained entrance to speak
with him the following day, and his familiarity with Al-
drich from past organizing attempts and Lynch's friend-
ship with him, as well as Briggs' general unreliability as
a witness, I am prepared to credit lynch that Briggs
made the remark which Lynch attributed to him.8
Briggs' statements to Lynch on August 19, to Lewis
and Aldrich on August 20, and to Maldonado on Sep-
tember 7 each constitute threats of plant closure if the
Union succeeded in becoming the employees' bargaining
I Respondent's attack on Maldonado's credibility at p. 30 of its brief,
that in his testimony he claimed to have told other employees of Briggs'
remarks while in his affidavit he mentions only telling Aldrich about
Briggs' threat, is unsuccessful. Maldonado adequately explained that his
conversation took place with Aldrich and other employees on the picket
line present. Consequently, the distinction Respondent seeks to magnify
does not amount to an inconsistency sufficient to impeach Maldonado's
testimony. Maldonado also explained that his understanding of English,
the language in which his affidavit was taken, is limited, and that conse-
quently in his reading of it before he swore to its contents he was some-
what handicapped. Maldonado testified with the aid of a Spanish-speak-
ing interpreter.
a Contrary to the argument at p. 28 of Respondent's brief, Briggs was
aware of Aldrich's leafletting on August 19 when he spoke to Lynch
about the appearance of Lynch's "friends" from the Union.
representative, and thus constitute unfair labor practices
in violation of Section 8(a)(1) of the Act.
As the General Counsel persuasively argues at page 15
of his brief, none of the economic consequences to which
Briggs alluded as attributable to the Union's advent were
based on objective considerations. Briggs had no indica-
tion at all that the Union would make demands that
would cause economic hardship, let alone plant closure.
Briggs' immediate reactions to Lewis and Aldrich, as
well as the two employees, were irrational and emotional
statements whose thrust were retaliatory in nature with-
out any basis in fact.9 It is also reasonable to conclude
that Briggs' comments made to the two union representa-
tives were intended to be related to the employees di-
rectly involved.' ° It mirrored the same threat made a
day earlier directly to an employee, Paul Lynch, and
was made to the individuals who asserted in making the
bargaining demand they were representing a majority of
Briggs' employees. Those representatives could reason-
ably infer that Briggs' response to them was not limited
to themselves but was meant to be relayed to the em-
ployees they purported to represent. It was not necessary
or even reasonable for Briggs to have requested that his
comments be so relayed for the inference to be drawn by
the organizers and I reject Respondent's contrary con-
clusion at page 29 of its brief.
B. Respondent's Conduct During the Critical Period
As related earlier, the Union's petition was filed on
October 10, some 3 weeks after Respondent recalled its
nonstriking employees and reopened its plant in mid-Sep-
tember. By December 15, the Union sent a mailgram to
Respondent on behalf of its striking employees, offering
an immediate and unconditional return to work and an
end to the "unfair labor practice" strike. By a two-page
letter dated December 18, forwarded to the Union by
certified mail, return receipt requested, Respondent re-
sponded to the mailgram. It advised the Union that em-
ployees Antonio Maldonado and Paul Lynch would not
be reinstated to their former positions because they had
engaged in picket line misconduct thereby forfeiting their
right to return to work. Because of necessary alterations
in business operations since the strike, changing from
hand-knitting to the utilization of sewing machine opera-
tors, Respondent advised that it did not have sufficient
work to permit the return of all hand-knitting machine
operators, whose future status would have to await busi-
ness conditions, but agreed to reinstate certain employees
immediately.
The status of both Maldonado and Lynch, alleged as
discriminatees in the complaint who were denied rein-
statement because of their union activities, including par-
ticipation in the strike, will now be addressed.
During the hearing, Respondent relied upon certain al-
leged incidents as warranting the two employees' denial
of reinstatement. With respect to Lynch, these acts in-
cluded the following:
* See Patsy Bee, Inc., 249 NLB 976 (1980); N.LR.B. v. Gissel Packing
Co., Inc., 395 U.S. 575 (1969).
1o See AAA Disposal Systems. Inc., 237 NLRB 391 (1978).
303
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 18, a few days after Briggs reopened
the factory and certain nonstriking employees came back
to work, Briggs claimed Lynch threatened him with
bodily harm. As explained by Briggs, a female employee,
Valerie Rodriquez, coming in to work for the first time
after Respondent's reopening, called him from a tele-
phone near the plant and asked him to meet her at the
entrance door because she was afraid. When Briggs came
out the entrance door, he saw Aldrich with his arm
against the wall of the factory, blocking Rodriquez' pas-
sageway about 5 feet from the door.11 As he, Briggs,
moved to go to her assistance, Lynch, who was also
present, moved between Briggs and Rodriquez, held
open his jacket with his hands on both sides of his body,
and prevented Briggs from seeing Aldrich and Rodri-
quez. As Briggs then sought to go around Lynch,
toward Rodriquez, and without touching him, Lynch
raised a fist and said, "If you touch me I will let you
have it." At this point Aldrich withdrew his arm. Briggs
reached Rodriquez; Briggs said he would take care of
both of them, Lynch and Aldrich,12 and he escorted Ro-
driquez into the plant.
Rodriquez also testified. She corroborated her call to
Briggs, but stated she asked him to meet her halfway to
the entrance from the gas station from which she tele-
phoned which is located next to the plant. However,
when she reached the entrance door Briggs had not yet
arrived. Meanwhile, Aldrich and Lynch, the only per-
sons picketing there at 7:45 a.m., were talking with her,
seeking to persuade her not to cross the picket line or
enter the factory. Rodriquez acknowledged that Lynch's
entreaties were uttered in a normal conversational tone.
When Briggs emerged he told her to go inside and, if she
couldn't go inside, to go home and he also came toward
her. Contrary to Brigg's account, Rodriquez.swore that
no one and nothing was blocking the door or Briggs'
movement. She did testify that at some point Lynch held
his jacket open with his back to her, facing Briggs. Ac-
cording to Rodriquez, a conversation and argument
ensued for 15 minutes, yet she could not recall a word of
it. Rodriquez herself remained outside this whole time al-
though as she testified she was nervous and afraid and
she could have gone inside at any time. At some point
Lynch was now yelling and then he raised a hand to
Briggs and Aldrich came between Briggs and Lynch.
After a few more minutes, Rodriquez went past the three
others who were between her and the door and entered
the plant. After a few more minutes, Briggs followed
her.
Lynch denied threatening to harm Briggs. He testified
that on the date in question he saw Rodriquez walking to
the plant, and, accompanied by Aldrich, went down the
street to meet her so that when they talked with her
there could be no claim of blocking the plant. As he was
II As earlier noted, both a portion of the street, Third Avenue, as well
as the sidewalk were torn up and obstructed, hindering movement be-
cause of the limited unobstructed passageway remaining.
"1 Briggs later obtained a summons against them from the I.M.C.R., a
Bronx community dispute resolution organization, and the matter was
heard before that group with all parties present. Its mediation efforts re-
sulted in the mutual undertaking not to harass each other.
seeking to enlist her support for the strike,13 Briggs
came down to them, about 25 to 30 feet from the en-
trance, from behind, went around him, took Rodriquez
by the arm and told her come on, "let's go to work,"
and took her into the plant. Lynch denied saying any-
thing to Briggs although he continued talking with Ro-
driquez while Briggs went around him. He also testified
tht Rodriquez seemed to be in fear at the time.
Briggs' and Rodriquez's accounts, as noted, have sig-
nificant variations. Part of Rodriquez' testimony and
even her sense of events may have been colored by the
nervousness on the witness stand which she exhibited or
even by her fear while outside the plant. Yet, her recol-
lection of the time involved, if correct, supports the con-
clusion that a substantial argument developed. I am pre-
pared to credit her against Lynch that Lynch and Al-
drich had words with Briggs and that, in accordance
with Briggs and Rodriquez' versions, at some point
Lynch did raise his arm to Briggs. 4 Furthermore, I also
find that Lynch spread his jacket while facing Briggs,
forcing Briggs out of his way to go around him to reach
Rodriquez. In view of Rodriquez' failure to claim that
she had been blocked, I do not credit Briggs' testimony
in that regard. Nevetheless, Lynch's conduct represents a
physical act of a possible threatening nature, the serious-
ness of which calls for further discussion. Whether it
constituted an assault which placed Briggs in imminent
danger of bodily harm is far from clear. A later discus-
sion between the two, described and discussed infra,
clarifies that Briggs' concern for his personal safety was
not so serious as to cause him to deny Lynch the oppor-
tunity of ever working for him again. s That Lynch's at-
tention and anger was directed to Briggs after he came
out from the shop, and had never been apparent to Ro-
driquez before Briggs' appearance, shows that the words
between Lynch and Aldrich on the one side, and Briggs
on the other, were heated. The exchange, then was
taking place on the picket line between a leading union
advocate and the employer who had rejected the Union's
offer to negotiate and had threatened him with loss of his
job and that of all other employees. Nonstriking employ-
ees were only just returning to start operations after a
month's hiatus. The setting was thus volatile and Lynch's
conduct can be explained under the rubric of "animal
exuberance" at the situs of the picketing, given all of the
surrounding circumstances described.16 Briggs' hostility
to the Union and its adherents had already been brought
home to Aldrich and Lynch, personally, a month earlier.
Lynch's shielding action may have been an act of brava-
do, but even Respondent does not rely on it alone as evi-
dencing sufficient misconduct to justify a denial of rein-
I' Among other things, Lynch said he told her not to cross the picket
line because a few days before Briggs had fired her, and after firing her
had now called her back to work. This earlier firing was not explored on
the record, when Briggs and Rodriquez took the stand, during presenta-
tion of Respondent's case. During Briggs' earlier sec. 611(c) examination,
Lynch had not yet testified.
'4 Footnote missing.
A1 See N.LR.B. v. Efco Manufacturing, Inc., 227 F.2d, 675, 676 (Ist
Cir. 1955), cert. denied 350 U.S. 1007.
'^ See Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312
U.S. 287, 293 (1941). See also Montgomery Ward & Co.. Incorporated v.
N.L.R.B.. 374 F.2d 606, 608 (10th Cir. 1967).
304
ARTHUR BRIOGS, INC.
statement. That Lynch may have reasonably believed, in
spite of his testimonial denial of responding with a hos-
tile gesture, that Briggs touched him as he went around
him to pull Rodriquez into the shop is also apparent.
While provocation may be too strong a word to charac-
terize Briggs' conduct, it is clear that Lynch's physical
act was defense, and also was not directed at third par-
ties not involved in the labor dispute. On balance, there-
fore, I conclude that Lynch's conduct did not rise to the
level of a violent act or one sufficiently serious to deny
him reinstatement rights under the Act.
Even if Lynch's conduct at the time could be said to
have crossed the line from excusable to inexcusable con-
duct, Briggs' later statement to him was both an act of
condonation and a recognition of the fact that Lynch's
gesture had not been taken as an act of violence against
his person. Lynch testified that sometime in later Sep-
tember, a couple of weeks after the plant had re-
opened,17 Briggs was standing at the plant entrance door
between 4:30 and 5 p.m. As Lynch walked by him on
the picket line that was circling in front of the plant,
Briggs said to him, "Paul, if you want to come back to
work you know what you have to do, you have to get
rid of the Union."'1
According to Lynch, there were 15 or so other pickets
patrolling at the time, but none of them heard Briggs' re-
marks which were directed only to him. The pickets
were walking behind each other in single file and Lynch
stopped, and got out of the line as Briggs spoke to him,
then got back into the line without replying and Briggs
went back inside. As earlier noted, Briggs testified that
he never spoke to Lynch about the subject of a Union.
But, significantly, Briggs was not asked by Respondent's
counsel, and, accordingly, never responded as to wheth-
er he had this particular conversation with Lynch. Based
upon my earlier credibility resolution rejecting Briggs'
denials of the threats of plant closing to which Lynch,
Maldonado, Lewis, and Aldrich uniformly testified, I
credit Lynch here, whose testimony in this regard was
consistent and had the ring of truth about it on both
direct and cross-examination. I conclude that with re-
spect to the arm raising incident, as well as certain other
incidents which Respondent asserts removed Lynch's
protection under the Act, all of which appear to have
preceded Briggs' offer to Lynch to return to work, Re-
spondent excused and condoned Lynch's picket line and
related conduct,' 9 even assuming it exceeded lawful
bounds. Such condonation is consistent both with Briggs'
antiunion hostility and the way in which Respondent
probably perceived Lynch's behavior generally, which
did not seriously endanger life or property or even rea-
sonably tend to coerce or intimidate employees. Based
upon Briggs' more than 20-year association with Lynch
as an employee, such an inference is imminently reason-
able.
" Lynch was firm in his recollection of the date of this conversation
on both direct and cross-examination, recalling on cross-examination that
it occurred after he had been away from the picket line for a few weeks
in the afternoon at the time of closing.
"a This statement is not alleged as an unfair labor practice in the com-
plaint.
" Philadelphia Ambulance Service. Inc., 238 NLRB 1070, 1075 (1978);
The Colonial Press Inc., 207 NLRB 673 (1973).
Briggs also claimed that Lynch threatened to cut the
breasts off women employees trying to come into the
factory on September 17, the day before Lynch threat-
ened him. He acknowledged he had been told this by
Goldstein. According to Goldstein, he was in the process
of escorting women employees out of the factory when
Lynch made the alleged remarks. Four women were
being escorted. Goldstein was in the lead. Immediately
behind him were two women who spoke Italian only.
Behind them were two others, including Valerie Rodri-
quez. Goldstein had opened the front door to leave the
plant and the two women of Italian origin were inside
the door behind him. In English in normal, conversation-
al tone Lynch said, "You ladies are going to have your
tits cut off." According to Goldstein the women did not
understand English, and made no reaction to the remark.
There is even some question whether they heard Lynch
at all. Rodriquez, among the group of four women, did
not testify to the alleged threat. Lynch denied it. I con-
clude that Lynch probably made the remark. However,
since it was either not heard or not understood by the
employees to whom it was addressed, and had no effect
upon them, it appears to have been a form of bantering,
albeit with hostile overtones, which ceased during the re-
maining 2 months of picketing, and, finally, it was con-
doned by Briggs, to whom it was reported, in his picket
line statement to Lynch at the end of the month, I con-
clude that the incident cannot support Respondent's
claim of serious picket line misconduct.20
Briggs also claimed that Lynch harassed his son-in-law
Goldstein and followed employees, in particular a press-
er, Sammy Ngozi, who was escorted home by Goldstein,
using foul language and making racial slurs to Ngozi,
and following them in his car for about a week after the
plant reopened just past mid-September. 2 ' Ngozi, a
young black man, had worked for Respondent in the
past as a presser, along with Lynch. He had quit to
pursue his education, but had also been driving a cab.
Around May he contacted Briggs to return and was
called back to work after the strike started in August.
According to Goldstein, Lynch came over and accompa-
nied Goldstein and Ngozi for two blocks as they walked
to Goldstein's car. Lynch hollered at Ngozi and Gold-
stein kept Ngozi from responding. Goldstein recalled
that, among other remarks Lynch made, he asked Ngozi,
"Are you afraid of this white man because you're from
Africa? You can make more money on strike than you
can working." On another occasion Lynch told Ngozi,
"We hang scabs."
According to Ngozi, Lynch approached him several
times on the street as Goldstein escorted him to be
driven home after work, once saying, "You're a black
0o Just as with respect to the picketing employee's threat to kill a non-
striking supervisor entering the plant in N.LR.B. v. Hartmann Luggage
Company, 453 F.2d 178 (6th Cir. 1971), Lynch's comments were not in-
tended literally, should be regarded as picket line rhetoric, and were ap-
parently so considered by Briggs. Id at 185.
21 On the first day the plant reopened, tires on the car Ngozi had
driven to work and parked across the street from the factory, along with
those of Briggs and Goldstein, had been punctured. The responsiblity for
these acts was never fixed although Respondent believed they were done
by the pickets.
305
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man and you have no business working for a white man"
and another time saying, "We are on strike, you have no
business working for Mr. Briggs" and calling him a
"bitch."
Ngozi testified he was told by Goldstein not to talk to
Lynch and he did not. He and Lynch had been friendly
in the past, they had worked closely together for a 2-
year period, and he was aware that Lynch was associat-
ed with a church and sometimes read the bible at lunch-
time. 22
It was Ngozi's belief that he was being "harrassed" by
Lynch being approached every day after work as he
walked with Goldstein, having a finger pointed at him,
and coming close to him and cursing him, although he
testified to only one curse word used. Ngozi also recog-
nized that Lynch's approach to him was motivated by a
desire to have him join the Union and the strike. The
other "harassment" Ngozi suffered was being given some
union literature by another employee.
Although claiming Lynch followed Goldstein's car
"most of the time," he was only able to testify to one
time, at the end of his first workday, September 15, that
Lynch got in his car and followed Goldstein's car as
Ngozi was being driven home.23 After about a half hour
on the expressway, they were able to lose Lynch in the
traffic.
Ngozi was not a creditable witness. His exaggerations
about the nature of Lynch's conduct toward him, as well
as his feigned ignorance about whether he was being
paid for the day of his trial appearance and his lack of
candor about how he had traveled to the hearing, imply-
ing he had come on his own when in fact both he and
Valerie Rodriquez had been driven by Briggs, convinces
me that, although Lynch approached him over a week's
period or longer in an attempt to convince him to cease
crossing the picket line or working as a strike replace-
ment, his conduct toward Ngozi was neither racist nor
intimidating but rather designed to appeal to his racial
pride and solidarity with the striking workers. Lynch's
efforts were frustrated by the protective shield placed
around him by Goldstein. The following of Goldstein's
car appears as one further attempt to reach Ngozi, a
person with whom he had worked closely in the past,
away from Goldstein's protective custody, to convince
him to cease his undermining of the effectiveness of the
strike. Contrary to the facts in both Associated Grocers of
New England, Inc. v. N.L.R.B., 562 F.2d 1333 (Ist Cir.
1977), and N.L.R.B. v. Otsego Ski Club-Hidden Valley,
Inc., 542 F.2d 18 (6th Cir. 1976), cited by Respondent at
pages 12 and 13 of its brief, Lynch did not follow Gold-
stein's car on a lonely road, for a lengthy period, or for a
series of successive days, and did not block his car, and
his conduct cannot be said to have met an objective
standard of tending to intimidate, given Ngozi's refusal
to respond to Lynch, their past close working relation-
ship, and Ngozi's understanding that Lynch's approaches
to him were motivated by a desire to convince him to
22 Since 1970, Lynch has been a deacon of his Pentecost Church.
23 Goldstein corroborated that the car-following incident occurred
only once early in the strike.
honor the line, not to intimidate.24 I conclude that none
of Lynch's conduct toward Ngozi was of a serious
nature and should not disqualify him from reinstatement,
even apart from Briggs' later condonation of it.
Goldstein testified that on one of the early days of the
strike, as he was walking to his car outside the plant,
Lynch told him, if he did not sign up with the Union, he
would end up in the hospital. Lynch denied the state-
ment. I find it plausible that Lynch, under the emotional
stress of the strike and picketing, Briggs' rejection of col-
lective bargaining, and threats to close and Respondent's
success in reopening its operation with nonstrikers,
would have made the threat attributed to him by Gold-
stein.2 5 But I also find that Briggs was aware of this
threat and overlooked it and condoned it when he of-
fered Lynch the opportunity to return to work without
the Union at the end of the month.26
Respondent also refused to reinstate Antonio Maldon-
ado because of alleged picket line misconduct. Maldon-
ado worked for Respondent from January 5, 1978, until
the strike started on August 21, 1980. Maldonado's Sep-
tember 7 conversation with Briggs has previously been
described and discussed. According to Goldstein, Mal-
donado vandalized the locks to the plant entrance door
and one other door by jamming them the evening of the
day, September 15, that Respondent reopened the plant,
and then did it again the next evening.2 7
Goldstein testified that early in the morning of Sep-
tember 15, the day that Sammy Ngozi had come into the
plant at 6 a.m. as the first worker on Respondent's re-
opening of its operations after August 25, Aldrich had
banged on the entrance door and told him not to work
that day, that he could not control what would happen.
Later in the morning through a plant window both
Goldstein and Briggs saw Maldonado at different times
looking into the plant from a rear lot.28 Maldonado told
Briggs through an opened window, "Now you're going
to have a lot of trouble." Maldonado denied this remark.
Aldrich was never recalled by the General Counsel to
deny Goldstein's testimony. I find that the Union and its
most loyal adherents were disturbed by Respondent's at-
tempt to resume operations and were prepared to go to
some length to try to change Briggs' determinations to
open the factory in mid-September. Consistent with my
discrediting Maldonado with respect to the lock tamper-
ing incident the evening of September 15, see infra, I
"4 Advance Pattern and Machine Corporation. d/b/a Gibraltar Sprocket
Co., 241 NLRB 501 (1979).
as In all of his lengthy employment history with Respondent only once
had Lynch been involved in a violent incident-a fight with a relative in
the dressing room with knives-and the matter had been forgotten and
did not result in any reprimand or warning.
26 Briggs' contemporaneous log of the strike to which he referred
while on the witness stand showed he was told of the incident on Sep-
tember 26. Goldstein placed it during an early strike day. I credit Gold-
stein that the conversation took place shortly after Respondent reopened
the plant, well before September 26.
a' Goldstein had the damage repaired by having the main entrance
lock replaced and then repaired late in the evening on September 15 and
16, respectively. If he had not, the plant would have been effectively
closed and unable to operate on September 16 and 17 until the repairs
could have been made.
28 That morning Ngozi also saw Lynch looking into his work area
from a window also in the rear lot.
306
ARTHUR BRIGGS, INC.
conclude that Maldonado did make the comment attrib-
uted to him.
As Goldstein related it, following the tire punctures
during the day on September 15, Goldstein had driven
his son's car back to a location a few blocks from the
plant. The tires on his father-in-law's car had been re-
paired during the day, and it was parked across the street
from the plant so when he and Briggs left the plant at a
little before 5 p.m. Briggs drove him to his son's car. As
they left, some pickets were sitting across the street from
the plant near Briggs' car. Maldonado came over to
them, made a hand gesture like a wave goodby, and
Goldstein told him to "go fuck" himself. Briggs dropped
off Goldstein, who got in the car and doubled back to
the plant. As Goldstein pulled into the curb across the
street from the factory, he observed Maldonado walking
in the same direction on the sidewalk near the plant
building and receiving a hammer from a man whom he
recognized as a worker for a nearby firm on the street.
Maldonado went immediately to the middle door of the
plant, bent down and hammered away at the lock, then
went to the main entrance door and did the same thing.
His left hand was up near the lock while he hammered.
Meanwhile Goldstein watched from his car and did
nothing. At this point Maldonado straightened up,
turned, and noticed Goldstein; their eyes met, and Mal-
donado now went up the block in a fast walk pointing at
both Goldstein and Aldrich whom Goldstein now no-
ticed on the sidewalk across the street about 50 feet from
Maldonado and walking toward him. As Maldonado got
abreast of Aldrich, Goldstein opened the window fully
on the driver's side, smiled at both of them, and drove
away.
After discussing the matter with his father-in-law by
telephone, Goldstein later returned to the factory en-
trance with his son, arriving at between 6:30 and 7 p.m.
Unlike the situation on all previous evenings since the
strike started, 29 there were no pickets present. The locks
on the two doors which had been tampered with would
not take the keys and Goldstein observed some foreign
substance in the key holes. His son removed something
from the middle door lock with a pen knife or other im-
plement. However, that door as well as a third not tam-
pered with were always bolted from the inside and were
never used to enter the plant. After determining that he
could not gain entrance to the building, Goldstein left,
consulted with Briggs, and arranged to meet a locksmith
at the premises later that evening. Goldstein met a lock-
smith outside the factory at 10 p.m. The locksmith
drilled the lock open on the main entrance door, and re-
placed the cylinder, thereby ensuring access to the plant
for the following day. The locksmith informed him it
looked like nails had been hammered into the cylinders
to jam them. The same evening, Goldstein filed criminal
charges against Maldonado, who was arrested the fol-
lowing morning outside the plant.30
29 Two employees had been present with picket signs on each prior
evening since the strike commenced on August 21.
aO Maldonado, ultimately tried on the criminal charge of malicious
mischief in the Bronx criminal court, was acquitted after a jury trial in
which Goldstein testified against Maldonado.
On the evening of the day of Maldonado's arrest, Sep-
tember 16, Goldstein received a telephone call from a
Holmes Company which monitored a burglar alarm
system installed at the plant that the alarm had been acti-
vated and they were also contacting the police. Gold-
stein went to the plant and discovered that the telephone
line running from a street telephone pole to the factory
had been cut and the lock on the main entrance door had
been jammed again. Again, Goldstein arranged for the
same locksmith to come. This time, the locksmith was
able to remove the foreign substance from the cylinder
and was not required to replace it.
Besides Goldstein filing the criminal charges against
Maldonado, Respondent filed an unfair labor practice
against the Union, which resulted in the issuance of a
complaint in Case 2-CB-8504 alleging, inter alia, that, on
or about August 17, the Union, by Aldrich, threatened
employees with physical harm because they had crossed
or attempted to cross the Union's picket line, and, on
about September 15, the Union, by Maldonado, in the
course and conduct of the picket line, inflicted damage
to Briggs' property. Both acts were alleged as violations
of Section 8(b)(1)(A) of the Act. Subsequently, on De-
cember 23, 1980,31 the parties entered into an informal
settlement agreement in this proceeding, which was ap-
proved by the Regional Director on January 7, 1981.
Among other undertakings, the Union agreed not to in-
flict damage to the property of Arthur Briggs, Inc.
Respondent also alleges that Maldonado threatened
certain employees with physical harm on the first Satur-
day of the strike, August 23, 1980. Jose William Rodri-
quez testified that he and his brother, Pasqual Diaz Ro-
driquez, on occasion worked as homeworkers for Re-
spondent. They picked up material, knitted on a machine
they maintained in their house, and returned the finished
work to the plant.32 On Saturday, August 23, Jose Wil-
liam came with his brother to the plant in a car driven
by a third person at or about 11 a.m. Maldonado saw
them and called over Jose William. Maldonado spoke in
Spanish. He told him he could not enter or take anything
out because they were on strike. When Jose William re-
sponded that he had to have work because he needed the
work to pay for his rent and food, Maldonado said he
could leave the merchandise and get the check but he
could not take anything out. Jose William told Maldon-
ado he was going to bring the work. Maldonado said, "If
you do, its dangerous for you." Jose William said, "Even
under bad circumstances I will take it because I do what
I have to do." The Rodriquez brothers then entered the
factory and brought in their finished work. They made a
number of trips in and out of the factory. Apparently,
during one of them, or just before they left after about
an hour, Maldonado also told Jose William that, if he
"t The record does not contain the agreement. Respondent did not
offer any testimony nor make the argument that the agreement was uni-
lateral, with the Union Respondent only, and that the Employer Charg-
ing Party did not join in it. Since such evidence would tend to support its
argument, discussed infra, that Respondent was justified in relying on the
complaint in refusing to reinstate Maldonado, I infer that the agreement
was a bilateral one in which the Employer joined.
a' These homeworkers were excluded from the appropriate unit stipu-
lated by the parties and did not participate in the election.
307
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
took work, someone would follow him and something
could happen to him, and also told him, "You have to be
on our side." At this time, Aldrich was also present. Jose
William responded, "No," he had to work, the Union
would not pay his expenses. Jose William understood by
Maldonado's remark that something bad could happen to
him. The friend who drove them also expressed fear that
his car could be damaged.
While at the plant, the brothers informed Goldstein
and Briggs of Maldonado's words with them, and Re-
spondent's officials contacted the police and asked Jose
William to wait and tell the police what Maldonado had
said. Jose William said he did not want trouble, or any
problems with either the owners or strikers, he did not
take any goods, and he and his brother left without in-
forming Goldstein or Briggs and without waiting for the
police. They were not approached by Maldonado or any
other picket as they went to the parked car to leave. At
the corner, Jose William stopped to telephone the plant
and inform Goldstein they would not wait or take any
goods. Thereafter, Jose William waited a month and then
came to the plant at night to continue his pickups and
deliveries of homework.
While Goldstein exaggerated the alleged threats by
Maldonado to which Jose William Rodriquez testified,
claiming the Rodriquez brothers were threatened with
being cut up or killed,33 I credit Jose William Rodri-
quez' testimony. He was restrained and consistent on
direct in the face of a vigorous cross-examination. He
came across as a very believable witness whose recollec-
tion was good and whose responses were direct and
straightforward, without imbellishment.
With respect to the alleged tampering with the locks
to Respondent's premises, I credit Goldstein's testimony
of the incident on the evening of September 15 over
Maldonado's denial.
Both Maldonado and Aldrich described in some detail
their movements in the vicinity of the picket line late in
the afternoon of September 15 just prior to and at the
time that Goldstein, accompanied by Briggs, first left the
plant at the end of the workday. Both asserted that, as
Goldstein left in his car, Maldonado moved to Aldrich
who was walking up toward the plant after having pur-
chased a snack a few blocks away, and exclaimed,
"There goes Dave, let's go home." Both claimed they
were the last pickets present and they then left the prem-
ises in opposite directions. Aldrich swore that he did not
see Maldonado with a hammer or nails at any time
during the picketing. One can only speculate about the
inference the General Counsel sought to have drawn
from the depiction of events at the time Goldstein left
the plant. The time was at least 10 to 15 minutes before
Goldstein alleged he returned to the plant alone in his
son's car. Neither Maldonado nor Aldrich addressed the
question of Goldstein's return to the plant rather than his
leaving. Either could have been recalled on rebuttal after
Goldstein's testimony had been given on Respondent's
case-in-chief to respond to Goldstein's story. I conclude
"3 Maldonado denied threatening to kill Jose William after Briggs had
testified for the General Counsel under Sec. 611(c), but was not recalled
on rebuttal to deny Jose William Rodriquez' first-hand testimony of the
incident after Respondent rested.
that Maldonado's and Aldrich's testimony on this matter
was unsatisfactory and did not come to grips with the
eyewitness account Goldstein provided. Their accounts
apparently were sufficient to influence the jury in Mal-
donado's criminal trial to conclude that the prosecutor
there had failed to sustain the people's burden of proving
that Maldonado committed the lock tampering beyond a
reasonable doubt. Those accounts, however, are insuffi-
cient to overcome the preponderance of evidence which
Respondent offered through Goldstein's presentation. 34
Goldstein's testimony was detailed, lacked exaggeration,
and was entirely believable. I cannot conceive that Gold-
stein fabricated his lengthy narrative.3 5 The fact of the
damage itself was corroborated by the locksmith's paid
receipts. The nature of and opportunity for the mischief
of which Maldonado is accused is apparent on this
record, and Goldstein's decision to return to the plant to
check things out after the unsettling events of the first
day of renewed operations after the strike was logical
and reasonable. I conclude that Maldonado did engage,
at least, in the September 15 act of vandalism and
damage to Respondent's property with which he has
been charged, and that this reprehensible action, commit-
ted off the picket line, was a calculated attempt to
achieve through unlawful means that which the Union
was unsuccessful in achieving through its protected pri-
mary strike and picketing, and justifies Respondent's de-
cision to deny Maldonado reinstatement to his former
position.3 6 Based upon my finding that Maldonado
threatened Jose William Rodriquez, the homeworker,
with bodily harm, I also conclude that by this miscon-
duct, upon which Respondent also relied, Maldonado
forfeited his right to reinstatement at the conclusion of
the strike.37
In view of this determination, I deem it unnecessary to
rule upon Respondent's argument made at pages 16 to 20
of its brief that it was entitled to rely upon the complaint
allegation charging the Union with restraining employee
Section 7 rights by Maldonado's infliction of damage to
its property when it determined to reject his offer to
return to work.3 8
s' The law is clear that a judgment of acquittal concludes no issue of
civil liability in favor of the acquitted defendant. United States v. National
Association of Real Estate Boards, 339 U.S. 485 (1950). Furthermore, col-
lateral estoppel effect cannot be given the criminal case acquittal in this
proceeding. See Williams v. Cambridge Mutual Fire Insurance Company,
et al., 230 F.2d 293 (5th Cir. 1956).
"s The General Counsel points to the alleged inconsistency of Gold-
stein's anger at Maldonado and the Union, as manifested in his obscene
remark to Maldonado as he left the plant, with his extreme restraint on
witnessing the damage to his property some 10 to 15 minutes later, when
he failed to try to stop Maldonado's destruction, as evidencing Gold-
stein's lack of credibility. I do not view these responses as being incon-
sistent. Goldstein was disturbed by the events of the day, and took the
occasion of Maldonado's flippant gesture to respond instinctively with an
obscenity. His later conduct, limiting himself to a role as observer, was
entirely consistent with the nature of the personality which came across
during his testimony, best described as meek and easily dominated or in-
timidated, as he surely was by his father-in-law.
"s See, e.g., Kayser-Roth Hosiery Company, Inc. v. N.L.R.B., 447 F.2d
396 (6th Cir. 1971).
a? See N.LR.B. v. Moore Business Forms Inc., 574 F.2d 835 (5th Cir.
1978).
3J If I had made such ruling I would have concluded that the settle-
ment agreement did not adjudicate the facts relating to the complaint al-
Continued
308
ARTHUR BRIGGS, INC.
Christian Delamose, an early union supporter among
the employees, testified to two incidents occurring
during the critical period, one an alleged threat and the
other an alleged surveillance of employee concerted ac-
tivities on the morning of the May 5, 1981, election.
As to the threat, Delamos testified that after his return
to work following the strike, about a month to 3 weeks
before the representation election, after being out sick for
about a week, Briggs approached him while he was
alone at his work place at or about 7:15 a.m. Briggs
called him over to an area near a power machine and
showed him an NLRB pamphlet printed on blue paper
providing information for voters in Labor Board elec-
tions. Briggs told him there was a company on Park
Avenue which closed down because of the Union, and
that one of the organizers was Willie (Aldrich) and there
was a worker there who lost his job and was out of
work for 3 years and finally had to go on welfare. 39
From time to time, Briggs utilized Delamos' services as
an interpreter to translate his statements from English to
Spanish for the benefit of Spanish-speaking employees
with whom he was attempting to communicate by tele-
phone.
Briggs denied making the statement or any other about
the Union to employees. He did acknowledge giving out
copies of the NLRB pamphlets to all of those employees
who accepted them but did not recall whether he gave
one to Delamos. Goldstein, during his cross-examination,
admitted familiarity with one shop located on Park
Avenue in the Bronx, called La Salle Knitting Mills,
which had closed about 3 years ago after having been
organized by Aldrige for the Union, and that it was
"very possible" he discussed that situation with his
father-in-law after the Union's demand and also "possi-
ble" that Briggs had voiced sentiments about it to him.
Respondent urges that because Delamos was not clear
about the date of the conversation, indicating after the
General Counsel referred to a particular date that it
could have taken place on April 9, and because in his af-
fidavit, introduced in evidence, he had separated the time
of Briggs' alleged threat from an approach by Briggs a
week later when he was given the pamphlet,4 0 Delamos'
credibility is doubtful. I disagree.
Delamos was clear in unprompted testimony about the
timing of the conversation in relation to the election,
placing it on or about the April 9 date alleged in the
complaint. I find the testimonial combination of the two
legation, and that Respondent consented to the settlement. Thus, collater-
al estoppel did not apply. See N.LR.B. v. Markle Mfg. Co of San Anto-
nio, 623 F.2d 1122 (5th Cir. 1980). There was thus no final order upon
which Respondent could be said to have relied in rejecting Maldonado's
offer. In the absence of such an order, the burden of proof did not shift
to the General Counsel to establish Maldonado's right to reinstatement
by virtue of the Board's taking of seemingly inconsistent positions on is-
suance of the two complaints. Id at 1127. In any event, Respondent
proved its defense to the allegation in the instant complaint with respect
to its failure to reinstate Maldonado by a strong preponderance of the
evidence.
3s Another time, according to Delamos, Briggs called him over by the
bulletin board, referred to the writings there, and said, "You know the
Union can't give you all this."
4' In his affidavit, Delamos asserted that, after giving him the pam-
phlet, Briggs said, "Now is the time to correct what you did wrong
before," and added he was not supposed to talk to Delamos about the
Union.
conversations to contain a minor variation which does
not detract from the essential veracity of Delamos' testi-
mony. It was natural for Briggs to believe that Delamos,
a striker and early supporter of the Union and his com-
municator with Spanish-speaking workers, would be an
excellent conduit for spreading his appeal through fear to
other employees. I credit Delamos.
Delamos also testified that, as he came to work early
on the morning of the election, Willard Aldrich was
standing on the sidewalk outside the plant entrance hand-
ing out union literature to employees entering the plant.
He also saw Goldstein seated in his car parked at the
curb in front of the factory entrance. According to Al-
drich, as he was standing outside the plant talking to em-
ployees as they went into work, Goldstein came out of
the plant at or about 7:15 a.m., got into his car parked
about 5 feet away, watched Aldrich talk to employees,
remained there about an hour to an hour and a half, and
then went back inside the plant. According to Aldrich,
during the time Goldstein remained seated in his car, the
workers arriving for work did not say anything to Al-
drich and just passed him right by.
Goldstein admitted that he went outside and sat in his
car as General Counsel's witnesses asserted, only for 20
minutes, but that he did it because his father-in-law had
reported to him that early that day a female employee
had reported that, as she was leaving the plant the prior
Saturday, Aldrich had forced her hand open, placed lit-
erature in it, and then squeezed her hand closed. It sud-
dently occurred to Goldstein that Aldrich might be har-
assing the employees "all over again" so he took a news-
paper and went outside. It was Goldstein's belief that his
presence there would prevent any harassment of employ-
ees. On cross-examination, Goldstein admitted glancing
up from time to time to watch as employees approached
Aldrich at the plant entrance. Goldstein also had not at-
tempted to verify the employee's story with her before
putting his preventive plan into action. That employee
was also still employed during the hearing and yet was
not called to verify the story Respondent presented.
I find Respondent's motive for engaging in the con-
duct insufficient and suspect, particularly when weighed
against employee rights to be free from employer coer-
cion in exercising Section 7 rights on the eve of a repre-
sentation election. The test to be applied to conduct to
determine whether it violates Section 8(aX)() of the
Act-whether it reasonably tends to interfere with rights
protected by the Act-has been clearly met here. Gold-
stein could have easily and probably surreptitiously ar-
ranged to observe from inside the plant or to have re-
ceived reports on Aldrich's conduct in leafletting, with-
out engaging in the unprecedented and totally inhibiting
observation from a vantage point within feet of the em-
ployees and clearly within their sight lines as they ap-
proached the plant entrance.4 ' I find that Respondent
had no legitimate purpose in stationing its vice president
as it did, that such conduct reasonably tended to inhibit
employees in the exercise of their right to converse with
the union agent and to distribute and receive union lit-
4 See Southern Moldings. Inc., 255 NLRB 839 (1981).
309
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
erature, and that, thereby, Respondent engaged in unlaw-
ful surveillance in violation of Section 8(a)(1) of the
Act.42
C. Conclusion as to the Objections
For purposes of evaluating the Petitioner's timely filed
objections, only conduct occurring between the filing of
the petition and the election may be considered as a basis
for setting aside the election, 43 although prepetition con-
duct may be considered insofar as it lends meaning and
dimension to postpetition conduct or assists in its evalua-
tion. 44
During the critical period, as previously found, Re-
spondent refused to reinstate employee Paul Lynch in
violation of Section 8(a)(3) and (1) of the Act, threatened
employee Christian Delamos, and through him, all other
employees, with a plant closing and loss of employment
in violation of Section 8(a)(1) of the Act, and, by its
Vice President David Goldstein, engaged in surveillance
of its employees' protected concerted activities the very
morning of the day the election was held, also in viola-
tion of Section 8(a)(1).
Lynch's discharge brought home to employees the dis-
astrous consequences of forthright and militant union ad-
vocacy, even for an employee with the loyal and ex-
traordinarily lengthy attachment to Respondent's busi-
ness which Lynch had achieved. 45 The threat to Dela-
mos was particularly significant.4 6 It was made to one of
the employees who had been reinstated after the conclu-
sion of the strike, and thus was designed to make clear
the power and control Briggs wielded over the employ-
ees' continued livelihood. Delamos was already aware
from the union meeting which had immediately preceded
the calling of the strike that Briggs was adamantly op-
posed to union recognition and would take any action
within his power to forestall a union relationship, regard-
less of its demands. Respondent's April 9 threat was not
an isolated incident, but a renewal, at a critical time, just
weeks before the election, of a consistent pattern of coer-
cive responses to the Union's presence.4 It was also ex-
pressed knowingly to the one employee who was in a
position to see that it received the widest circulation
among the employees, particularly those of Spanish an-
cestry who had made up a significant portion of the
Union's card majority. 48
42 See Chemtronics, Inc., 236 NLRB 178, 180 (1978); Harvey's Wagon
Wheel. Inc. d/b/a Harvey's Resort Hotel & Harvey's Inn, 236 NLRB 1670,
1681 (1978).
43 The Ideal Electric and Manufacturing Company, 134 NLRB 1275,
1278 (1961).
4 Evans Brothers Barber & Beauty Salons, Inc., 256 NLRB 121 (1981);
Dresser Industries, Inc., 231 NLRB 591 (1977).
'4 See, e.g., Apple Tree Chevrolet. Inc., 237 NLRB 867 (1978). See also
General Stencils Inc., 195 NLRB 1109 (1972).
46 Where the threat is made, as here, by the president and sole owner
of the corporate respondent at a time close to the election and to an em-
ployee who can be expected to repeat it to his fellows, it takes on added
weight. See Sol Henkind, an Individual d/b/a Greenpark Care Center, etc.,
236 NLRB 683 (1978).
"4 See Evans Brothers; supra.
4s The extent of dissemination of a threat made to a single employee is
a significant factor considered by the Board in weighing the impact of
the conduct on the electorate. Super Thrift Markets, Inc. t/a Enola Super
Thrift, 233 NLRB 409 (1977).
Goldstein's surveillance, coming as it did on the very
eve of the election, had to have the most serious nega-
tive impact upon the free expression of union sentiment
among the employees as they entered the workplace that
critical day.49
The relative closeness of the ultimate vote lends
weight to the conclusiion that Respondent's series of
unfair labor practices had a telling effect upon the free
and untrammeled exercise of the ballot by Respondent's
work force. By virtue of the severity of the violations,
the extent of their dissemination, and the small size of the
unit, among other relevant factors,50 I conclude that Re-
spondent's pattern of unfair labor practices, set in true
perspective by its prepetition conduct, affected the re-
sults of the election. Accordingly, I shall recommend to
the Board that the election be set aside.
D. The Alleged Refusal To Bargain and Requested
Bargaining and Other Remedies
It remains to consider the complaint allegations that
Respondent has refused to bargain in violation of Section
8(a)(5) and (1) of the Act and that such conduct warrants
the issuance of a bargaining order.
All of the essential predicates to a finding of refusal to
bargain are present here. The Union made demand in an
appropriate unit, and at the time it did so, on August 20,
1980, it represented a substantial uncoerced majority of
the unit employees. In accordance with the credited tes-
timony Respondent never questioned the Union's major-
ity status, but instead immediately took steps to under-
mine its status by a series of threats of plant closing
which the Board has identified as "one of the most fla-
grant means by which an employer can hope to dissuade
employees from selecting a bargaining representative." s5
The courts as well have long identified such conduct as
among the most serious forms of interference with the
free exercise of employee rights.' 2 As the Supreme
Court has taken note, threats to close an employer's op-
erations are among the most effective unfair labor prac-
tices "to destroy election conditions for a longer period
of time than others."' s
Respondent, by Briggs, commenced its campaign of
threats even before the Union's demand was made, made
the threats to the three known leaders among the union
adherents in its work force, exhibited the will to carry
out the objective of separating from the work force the
one among its employees who consistently sought to
achieve the Union's recognitional purpose, and, finally,
through its vice president, closely observed their associ-
ation with the union organizer on the very day sched-
uled for the employees to register their union choice by
a secret ballot. Sufficient grounds existing for setting the
election aside-a necessary predicate for the remedy
49 See Dresser Industries. Inc., supra.
50 See Super Thrift Markets, Inc. t/a Enola Super Thrift, supra
s5 General Stencils. Inc.. supra. See also Patsy Bee, Inc., 249 NLRB 976,
977 (1980); and Milgo Industrial, Inc., 203 NLRB 1196 (1973).
52 Irving N. Rothkin, d/b/a Irv's Market, 179 NLRB 832 (1969), enfd.
434 F.2d 1051 (6th Cir. 1970); Textile Workers Union of America v. Dar-
lington Manufacturing Co et al., 380 U.S. 263 (1965).
5s N.L.R.B. v. Gissel Packing Co.. Inc., 395 U.S. 575, 611 at fn. 31.
310
ARTHUR BRIGGS, INC.
under consideration54 -I conclude that the Union is enti-
tled to the issuance of a bargaining order.
In Gissel Packing Co., supra, the Supreme Court, in ap-
proving the Board's use of a bargaining order in the
cases before it, depicted two situations in which such
orders could appropriately be given. The first involves
"exceptional cases" marked by unfair labor practices
which are so "outrageous" and "pervasive" that tradi-
tional remedies cannot erase their coercive effects with
the result that a fair election is rendered impossible. The
second situation involves "less extraordinary cases . . .
which nonetheless still have the tendency to undermine
majority strength and impede the election processes." In
the latter situation, the Court stated a bargaining order
should issue where the Board finds that "the possibility
of erasing the effects of past practices and of ensuring a
fair election . . . by the use of traditional remedies,
though present, is slight and that employee sentiment
once expressed through cards would, on balance, be
better protected by a bargaining order." 55
Respondent's unfair labor practices have unquestiona-
bly dissipated the Union's prior showing of substantial
majority support among the employees and will continue
to retard and stifle the enthusiasm for union activity di-
played by many of them earlier in the Union's drive.
Furthermore, in a unit of the limited size shown here-
36 employees before the strike and only 26 out of ap-
proximately 42 having participated in the election some 9
months later-and given the fact that the principal actor
was the owner of the business himself, it is highly likely
that the lingering effects of Respondent's conduct will be
particularly acute. 56 I therefore conclude that the
Union's card majority provides a more reliable test of
employee representation desires and better protects em-
ployee rights than would an election. 57 Among other
considerations, it also seems clear that the Employer
should not be allowed to benefit from the elapse of time
and employee turnover resulting from the modification
of Respondent's operations following the 4-month strike
in 1980.58
Accordingly, I conclude that Respondent's conduct in
refusing to recognize and bargain with the Union, while
at the same time engaging in the most serious and fla-
grant acts intended to undermine and destroy it, violated
Section 8(aX5) and (1) of the Act, renders a fair election
highly improbable, and independently requires the issu-
ance of a bargaining order. The bargaining order shall be
made effective from August 20, 1980, the date on which
the Union made its initial demand and Respondent de-
clined to recognize the Union, and I day after Respond-
'4 Irving Air Chute Company, Inc. Marathon Division, 149 NLRB 627
(1964); The Great Atlantic & Pacific Tea Company, Inc., 230 NLRB 766
(1977).
" 395 U.S. at 614-615.
s See Philadelphia Ambulance Service, Inc., 238 NLRB 1070, 1071
(1978).
"I Whether viewed as following the first or second category described
by the Gissel Court, which I find it unnecessary to determine, the effects
of Respondent's conduct is unlikely to be erased and a fair election en-
sured by the use of traditional remedies.
sa See Franks Bro. Company v. N.LR.B., 321 U.S. 702 (1944).
ent embarked on its systematic attempt to undermine the
Union. 9
Having also found that Respondent's failure to rein-
state Lynch upon his unconditional offer to return to
work violated Section 8(a)(3) and (1) of the Act, I shall
also recommend that Respondent offer immediate and
full reinstatement to him, without prejudice to his senior-
ity or any other rights and privileges previously enjoyed,
and that Respondent make him whole for any loss of
earnings and other benefits he may have suffered by
reason of Respondent's discrimination against him, com-
puted in accordance with the formula stated in F W.
Woolworth Company, 90 NLRB 289 (1950), with interest
computed in the manner set forth in Florida Steel Corpo-
ration, 231 NLRB 651 (1977); see, generally, Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All full-time and regular part-time production and
maintenance employees employed by Respondent at its
Bronx, New York, facility, excluding all office clerical
employees, guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
4. Beginning on August 11, 1980, the Union represent-
ed a majority of the employees in the above-described
unit, and has been, and is, the exclusive representative of
all said employees for the purpose of collective bargain-
ing within the meaning of Section 9(b) of the Act.
5. By refusing to recognize and bargain collectively
with the Union with respect to the employees in the ap-
propriate unit described above on and after August 20,
1980, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
6. By refusing to reinstate Paul Lynch upon the
Union's unconditional offer to return to work at the con-
clusion of the strike made on his behalf because of his
membership in and support of the Union and the strike
called by the Union at Respondent's facility, and in order
to discourage employees from joining the Union or en-
gaging in the strike or other concerted activities, Re-
spondent had engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
7. By the aforesaid refusal to reinstate Paul Lynch and
refusing to bargain collectively and to recognize the
Union, by threatening to close the plant if the Union
became its employees' collective-bargaining representa-
tive, and by keeping under surveillance the union and
protected concerted activities of its employees, Respond-
ent has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees in
sg See Trading Port, Inc., 219 NLRB 298. 301 (1975).
311
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the exercise of the rights guaranteed them 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.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
9. Respondent has not engaged in any unfair labor
practices not specifically found herein; specifically Re-
spondent has not violated the Act by refusing to rein-
state Antonio Maldonado upon the Union's unconditional
offer to return to work at the conclusion of the strike
made on his behalf.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER6 0
The Respondent, Arthur Briggs, Inc., Bronx, New
York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening to close the plant if Knitgoods Work-
ers' Union, Local 155, I.L.G.W.U., AFL-CIO, becomes
its employees' collective-bargaining representative, and
keeping under surveillance the Union and protected con-
certed activities of its employees.
(b) Discouraging membership in Knitgoods Workers'
Union, Local 155, I.L.G.W.U., AFL-CIO, or in any
other labor organization, by refusing to reinstate strikers,
upon their unconditional request, to existing vacancies
with full seniority rights and privileges.
(c) Refusing to recognize and bargain in good faith
with the aforementioned Union as the exclusive bargain-
ing representative of its employees in the following ap-
propriate unit:
All full-time and regular part-time production and
maintenance employees employed by the Respond-
ent at its Bronx, New York, facility, excluding all
office clerical employees, guards and supervisors as
defined in the Act.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
'o In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(a) Offer Paul Lynch immediate and full reinstatement
to his former or substantially equivalent position of em-
ployment, without prejudice to his seniority or any other
rights and privileges previously enjoyed, and make him
whole for any loss of wages which he may have suffered
by reason of the discrimination against him, in the
manner set forth above in the section dealing with the
remedy.
(b) Recognize, effective from the date beginning
August 20, 1980, and, upon request, bargain collectively
and in good faith with Knitgoods Workers' Union, Local
155, I.L.G.W.U., AFL-CIO, as the exclusive representa-
tive of all employees in the appropriate unit described
above, with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if an un-
derstanding is reached, embody such understanding in a
signed agreement.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its Bronx, New York, place of business, in
English, Italian, and Spanish copies of the attached
notice marked "Appendix." 6 ' Copies of said notice, on
forms provided by the Regional Director for Region 2,
after being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the consolidated
complaint in Cases 2-CA-17519, 2-CA-17825, and 2-
CA-18066 be dismissed as to those allegations not spe-
cifically found to be violative of the Act.
IT IS FURTHER RECOMMENDED in Case 2-RC-18849
that the Objections to the Election 1, 2, 4, 5, and 7 relat-
ing to improper surveillance shortly before the election,
and Objection 8 relating to the refusal to reinstate em-
ployee Paul Lynch, be sustained, and the election held
on May 5, 1981, be set aside.
61 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
312