Continental Manufacturing Corp.

National Labor Relations Board - Board Decisions

Oct 19, 1965

155 N.L.R.B. 255 (N.L.R.B. 1965)

CONTINENTAL MANUFACTURING CORP. 255
was then that the decision to discharge him for these reasons was crystallized. I do
not receive in these circumstances even partial motivation for the decision to dis-
charge Townsend for his union sympathies and activities. I find that the decision
for this action was based exclusively on Skinner's conclusion that Townsend was
an incorrigible complainer who would always tangle with managerial authority and
whose continued presence in the plant for this reason alone was undesirable.
I find, in accord with Townsend's unrefuted testimony, that Foreman Bass and
Ray had asked Townsend how many signed union cards he had obtained from
employees and when the Union would hold its next meeting. Ordinarily a supervisor's
inquiry of an employee concerning his organizing activities is an unwarranted intru-
sion upon his right of privacy in these affairs and tends to coerce the employee in
the exercise of his statutorily protected right to engage in union activities. I do
not believe the interrogation of Townsend as to his activities or of the time of the
Union's meeting tended to coerce employees. Townsend was too openhanded and
defiant about his unionism to impute coercive tendencies to inquiries of him about
his activities. I doubt whether Townsend or any employee familiar with the fore-
going interrogation would have regarded Bass' and Ray's questions about his card
solicitations as anything more than banter or harmless crossfire between obvious rivals
in the contest over unionization. I shall recommend dismissal of the allegations that
Townsend's layoff and discharge were violative of Section 8(a)(3) of the Act and
that the interrogation of him concerning his union activities was independently,
violative of Section 8(a) (1) of the Act.
I further find that in connection with Townsend's interrogation by Bass concerning
card solicitations he was encouraged to notify the Respondent that he would with-
draw from the Union and that Bass at the same time indicated his employment status
would otherwise be imperilled by telling Townsend of his need for him. As the
carefully detailed complaint does not allege this threat to be unlawful and because
the General Counsel's brief does not make any contention regarding it, I make no
finding that the Respondent by Bass' threat violated the Act.
CONCLUSIONS OF LAW
1. Murray Ohio Manufacturing Company, Lawrenceburg, Tennessee, is an
employer engaged in interstate commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Union, United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. The allegations of the complaint that the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1)
of the Act have not been sustained.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.
Continental Manufacturing Corp . and Aurea E. Ramirez. Case
No. 24-CA-1876. October 19, 1965
DECISION AND ORDER
On March 22, 1965, Trial Examiner Eugene E. Dixon issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent 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 Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a brief in support thereof.
155 NLRB No. 26.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Trial Exam-
iner 's Decision, the exceptions and brief, and the entire record in the
case, and finds merit in certain of the Respondent's exceptions. Accord-
ingly, the Board adopts the Trial Examiner's findings, conclusions, and
recommendations only to the extent consistent with our Decision and
Order.
The Trial Examiner found, as alleged in the complaint, that the
Respondent discharged employee Aurea Ramirez, in violation of Sec-
tion 8(a) (1) of the Act, because she had engaged in a protected and
concerted activity.
The Respondent is engaged in the manufacture, sale, and distribu-
tion of dresses at Mayaguez, Puerto Rico. The International Ladies
Garment Workers Union of America represents its employees.
On October 3, 1963, just before quitting time, Plant Manager Mon-
talvo held a meeting of the female employees during which she com-
plained of the dangerous and dirty condition of their washroom. She
accused them of being animals and warned them that until the wash-
room was clean and safe it would be closed.' However, she did say that
the washroom key would be conveniently located for use if emergen-
cies arose . By 9 o'clock the next morning, the washroom had been
cleaned and opened?
Employees Ramirez and Rodriguez, who had attended the meeting
of October 3, felt hurt by Montalvo's remarks and agreed that they
would watch the employees using the ladies' room to determine who,
among the employees, was responsible for dirtying the room. During
the next 4 days, either Ramirez or Rodriguez would leave her work
post several times each day without permission to check on the condi-
tion of the restroom after employees had used it. Montalvo, as well as
Union Agent Pagan, warned them against this spying on other employ-
ees. On the morning of October 8, Montalvo called the two girls into
her office, repeated her warning against spying on the girls using the
restroom, and threatened to contact the Union to have them punished.
Later that morning, after Ramirez and Rodriguez had returned to
their jobs, Ramirez stopped DeSantis, an owner of Respondent, and
handed her the letter set out in full in the Trial Examiner's Decision.
'An employee had reported to Montalvo that she had slipped and almost injured her-
self on the wet washroom floor.
2 The Trial Examiner found that Respondent's janitor was absent for 3 days prior to
October 3, 1963. The record indicates that he was present on October 1, and the Board
so finds.
CONTINENTAL MANUFACTURING CORP. 257
On the afternoon of the same day, October 8, Montalvo again called
Ramirez and Rodriguez to her office together with Union Agent Pagan.
Montalvo brought up many complaints against the two women.
Finally, Pagan and Montalvo agreed that Ramirez would be suspended
for a month and Rodriguez fora week.3 Shortly after this, on the same
day, Union Agent Pagan called a meeting of all female employees at
which DeSantis was present. Pagan asked the employees if they had
complaints concerning management of the plant. There was no
response. After the meeting had ended, and the employees had left
the plant, DeSantis asked Montalvo for Ramirez' production records
and timecards. From these she found that 4 months previously Rami-
rez had produced a large batch of faulty work which required a con-
siderable number of man-hours to correct, and that of a total of 170
workdays, Ramirez had been absent 31 days, late 22 days, and had left
early 19 days. Thereupon, DeSantis directed Montalvo to write a let-
ter for her signature discharging Ramirez. The letter, delivered to
Ramirez on October 9, reads as follows :
Due to the fact that you handed me a letter at your machine, upon
my arrival at the plant, you made me understand that you are not
happy working with us. And by saying what you said about your
superiors, including myself, that we do not know how to handle
our employees and management, you showed disrespect and there-
fore, Ave charge you with insubordination. From this act we are
compelled to eliminate you of your services.
The complaint alleges that the Respondent violated Section 8 (a) (1)
by suspending Ramirez and Rodriguez for their activities in checking
on employees using the restroom, and by discharging Ramirez for
writing the letter which she handed to DeSantis. The Trial Examiner
found the suspensions were the direct result of the employees' continu-
ing against orders to leave their work for the purpose of checking the
use of the restroom and thus did not violate the Act. However, he
found that the discharge of Ramirez was because of the letter she had
written and violated 8 (a) (1). We do not agree with the latter finding
of the Trial Examiner.
The letter, which was directed only to the Respondent, was prepared
and signed by Ramirez acting alone. She did not consult with Rodri-
guez, any other employee, or the Union about the grievances therein
stated or her intention of sending the letter to DeSantis. There is no
evidence that the criticisms in the letter reflected the views of other
employees, nor is there evidence that the letter was intended to enlist
the support of other employees. This letter received no support from
union representatives. We disagree with the Trial Examiner's find-
3 Rodriguez ' suspension never went into effect. It was revoked by DeSantis at the
request of Montalvo.
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing that the letter was merely an extension of the concerted efforts of
Ramirez and Rodriguez to find the employees responsible for the filthy
condition of the restroom. As stated above, Ramirez did not consult
with Rodriguez about writing the letter. The two women's spying
activities were directed at their fellow employees and did not constitute
a complaint against Montalvo; whereas the letter criticized Montalvo
for the restroom incident. Under all the circumstances, we find, con-
trary to the Trial Examiner, that Ramirez' letter to DeSantis was not
a protected concerted activity. Accordingly, Ramirez' discharge in
part for writing the letter was not a violation of Section 8 (a) (1). We
shall therefore dismiss the complaint 4
MEMBER BROWN, concurring: I concur in the result.
* The Trial Examiner found that Respondent's failure to repudiate Union Agent Pagan's
statement, at the meeting of employees on October 8, that DeSantis would close the plant
if there were too many complaints, was a violation of Section 8(a) (1). In view of the
isolated nature of this remark, the contradictory state of the record as to what was
actually said, and the failure of the General Counsel to include such an allegation in the
complaint, we do not adopt this finding of the Trial Examiner.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136), herein called the Act, was heard before Trial Exam-
iner Eugene E. Dixon at Santurce, Puerto Rico, on various dates from August 24
through September 3, 1964. The complaint dated March 16, 1964, as amended at
the hearing and based upon charges filed and served January 29 and March 16, 1964,
was issued by the Regional Director for Region 24 (Puerto Rico) on behalf of the
General Counsel of the National Labor Relations Board, herein called the General
Counsel and the Board. It alleged that Continental Manufacturing Corp., herein
called the Respondent, had engaged in and was engaging in unfair labor practices by
interfering with, restraining, and coercing its employees in certain specified respects
including the discharge of Aurea E. Ramirez because of her activities related to the
voicing of a grievance of Respondent's employees concerning work conditions all in
violation of Section 8 (a) (1) of the Act.
In its duly filed answer Respondent denied the commission of any unfair practices.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
At all times material herein the Respondent has been a corporation duly organized
under and existing by virtue of the laws of the Commonwealth of Puerto Rico, with
its principal office and place of business located in the city of Mayaguez, Puerto Rico,
where it is engaged in the manufacture, sale, and distribution of ladies' garments. In
the course and conduct of its business operations at Mayaguez, Respondent annually
receives gross revenues in excess of $50,000 from cutting and sewing services rendered
to business enterprises located outside the Commonwealth of Puerto Rico, which
enterprises are engaged in interstate commerce, and annually causes goods and mate-
rials valued in excess of $50,000 to be transferred and delivered from its place of
business directly to points located in the States of the United States. At all times
material Respondent has been an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
International Ladies' Garment Workers Union, AFL-CIO , at all times material
herein has been a labor organization within the meaning of Section 2(5) of the Act.
CONTINENTAL MANUFACTURING CORP.
III. THE UNFAIR LABOR PRACTICES
259
This case involves the suspension on October 8 and the discharge on October 9,
1963, of Aurea Ramirez, one of Respondent's then approximately 40 female employ-
ees. General Counsel contends that Ramirez was suspended and then discharged
for protesting a grievance to Respondent on behalf of herself and her fellow
employees regarding working conditions in Respondent's plant; that both the sus-
pension and the discharge interfered with Ramirez' right to engage in concerted
activity guaranteed in Section 7 of the Act and thus violated Section 8(a)(1) of
the Act.
Respondent contends that Ramirez acted not in concert with other employees but
only individually and for herself, indeed, contrary to the dictates and desires of the
other employees; that her actions thus were not protected under Section 7 of the
Act and that in any event she was not suspended or discharged for any concerted
activity but for legal and sufficient cause.
The action here centers on circumstances regarding the condition and use of the
women's toilet facilities in the plant particularly between the dates of October 3 and 8,
1963.1 At the time in question, Respondent's employees, including Ramirez, were
represented by the International Ladies' Garment Workers Union, AFL-CIO. Alicia
Pagan was the Union's business representative and usually visited the plant on Mon-
day. Magdalena Arroyo, a machine operator, was the Union's representative among
the employees, known as the chairlady. She had been elected to this position by the
employees, having run against Ramirez for the office and having won by a vote of
38 to 4.
The credited testimony, much of which is undenied or uncontroverted, shows the
following: For sometime prior to October 3, Respondent had a regular janitor
(whose duty it was to clean the women's restroom every morning) and who because
of some physical infirmity was frequently absent from work. When such absences
occurred it was necessary to have someone replace him since if he was not replaced
there was no one to clean the restroom. For at least 3 days prior to October 3 the
regular janitor had been absent and, according to the testimony of Plant Manager
Dalila Montalvo, she found it necessary "to look for a substitute." Whether or not
the substitute had been secured before October 3 does not appear but it is clear that
by late afternoon of that day the women's restroom was in a messy and dirty condi-
tion. Just before quitting time, having learned from one of the employees that she
had slipped and almost fallen in the restroom because of the wet condition of the
floor, Montalvo called the women together and told them of this and that because
of it she was going to lock the restroom for the remainder of the day to forestall
the chance of an accident therein.2 She further berated the employees for the condi-
tion of the restroom telling them that they "were indecent, dirty and such pigs to
have that bathroom looking so dirty and that as (they) acted as animals she was
going to leave the bathroom locked up at 5 o'clock so that the next day (they) would
have to take care of (their) needs in the field like the animals, because that was
what (they) deserved, inasmuch as (they) were acting as such." 3
The following morning both the regular janitor and the substitute reported for
work and by 9 o'clock the ladies' restroom had been cleaned and was open for use
the remainder of the day .4
According to the testimony of Miriam Padilla De Rodriguez (who was called as a
witness by the General Counsel) as a result of Montalvo's "excited" comments to
the employees about the condition of the restroom and the blanket indictment she
1 There is little dispute as to what happened in this connection . In addition to this
matter there is considerable conflicting testimony regarding whether or not grievances
existed between the employees and Respondent as regards the operating efficiency of
Respondent 's machines and their repair or lack thereof and the part played by Ramirez
as spokesman for the employees in this or zany other respect. Because the matter involving
the toilet facilities is clearly dispositive of this phase of the case I do not consider this
other evidence.
2 She also told them that In case of emergency the restroom could be used , the key
being available on a peg near the restroom door where she had placed it.
3 This was Ramirez' testimony. Montalvo did not deny this and admitted in her testi-
mony that she accused the employees of "keeping the bathroom as if they were ani-
mals . . . She also testified that on several previous occasions she had similarly
"called their attention as to the manner in which they were keeping or maintaining the
bathrooms."
41f necessary the men's room ( which was used by only two men ) was available to the
women in case of an emergency.
212-809-66-vol. 155-18
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had made that had "hurt" them, she and Ramirez had talked it over and "agreed"
that they would watch who was using the ladies' room to determine who was creating
the condition that had caused them all to be branded as "pigs" and "unclean." To
this end they took it upon themselves to check the restroom when it was used by
the other employees.
From October 4 to 8,8 according to Rodriguez, "sometimes" or "about two or
three times a day" she would leave her work without permission so as to follow an
employee into the restroom for the purpose of finding out "who were the ones who
were dirtying up the place." She also jotted down the names and kept a list of those
who went into the restroom. Whether or not Ramirez also was keeping a list of
those using the restroom Rodriguez could not say,6 but she did testify that Ramirez
also left her work for the purpose of checking the condition in which employees were
leaving the restroom after having used it.7
Rodriguez admitted that she had been warned by Montalvo "to desist from such
tactics" and that despite this admonition she "persisted" in them until October 8. At
that time, according to Rodriguez' further testimony, it was "possible" that both she
and Ramirez were warned by Union Agent Pagan that if they "continued spying on
the girls in the toilet" they would be suspended.
In her testimony Ramirez not only denied having participated in this surveillance
of the restroom but also denied having been reprimanded or warned about it until
October 8 when she and Rodriguez were called into the office. Ramirez' testimony
that she did not engage in the restroom checking as such is not credited and I find
that she did.8 I also find that she was warned by Montalvo about it before October 8.
On October 7 when Pagan came to the plant (presumably for her regular Monday
visit) Ramirez told Pagan,
Look, Alicia, this happened. . And I told her everything concerning the
insulting words Miss Dalila had said to us, I told her about the reprisal she
had taken by locking up the bathroom, and I told her that if I or any of the
girls had called the Health Department she had to understand that Miss Dalila
was going to have a bad time.
Pagan told Ramirez that she was going to talk to Montalvo about the matter "so
that that won't happen again" but also told her to "please keep quiet and don't say
anything else." 9
The first thing in the morning the following day, October 8, Rodriguez and Ramirez
were called to the office by Montalvo. There Montalvo warned them about spying
on the girls going to the restroom. According to Montalvo's further testimony
that all of them would not be blamed...." That considerably more was covered at
this time is apparent from Rodriguez' undenied and credited testimony that the dis-
cussion lasted almost an hour. According to Rodriguez's testimony, Montalvo told
them that they "were always protesting and causing her problems that she was going
to call Mr. Schoen, the union representative, so that he would discharge (them)
from the factory."
About this matter Ramirez testified as follows:
the greeting that she gave us was that since we were problem employees,
because we would protest directly to the union and we were the ones who dared
to speak up when there were meetings about the protests, well, she did not want
6 Actually, the period of time involved was Friday, October 4, and Monday, October 7.
6 Apparently she did not. Montalvo testified in substance that only Rodriguez had re-
corded the names but that Ramirez had discussed them with Rodriguez. I have no doubt
that they did discuss them but there is no indication how Montalvo knew about it.
T According to Montalvo's testimony she had warned both Rodriguez and Ramirez "sev-
eral times" during Friday, October 4, and Monday, October 7, about this until she "was
forced to summon them to the office" on October 8. There she told them that "if they
continued spying on the girls . . . [she] would be forced to punish them or . . . to call
Mr Schoen [regional director of the Union] and let him take care of them."
s It appears from Chairlady Arroyo's undenied and credited testimony that on Octo-
ber 4 Ramirez had told her that she was "taking down the names of everyone that goes
in and uses the toilet to see who is the pig so that afterwards they will not say I am
the one." Arroyo told her not to do it because she was wasting time at her work and
was going to be reprimanded.
P It is clear that the remarks attributed to Pagan here by Ramirez were hearsay and
for that reason I do not rely on them. However, in her testimony Rodriguez corroborated
that Ramirez had reported to Pagan what Montalvo had said and done about the restroom
the day before. She also testified (and I credit her) that after talking to Ramirez, Pagan
went to the office.
CONTINENTAL MANUFACTURING CORP. 261
us there anymore because we did harm to the Company . Then I discussed
with her and told her that I did not believe that was a reason for her not wanting
us there because up to that date she had never had any complaint about my
production and I had never been disrespectful to her but answered her back,
and then we went on discussing things and she repeated again that she did not
want me or Miriam Padilla there and that she was going to call Mr. Schoen so
he would fire us because as far as she was concerned it was decided , that she
did not want us there any longer; Miriam and I told her that on several occasions
when she had had meetings she had expressed herself saying that she was author-
ized by the Company and by the Union to fire any person that she thought might
be doing harm to the Company by protesting and showing dissatisfaction about
the orders and the regulations that she was trying to impose upon the factory....
Then while we were talking to her I told her that I had noticed that she would
not greet me nor look at me, that if she had anything against me to tell me
about it because in that way , by discussing the matter , we could understand each
other, that she could tell me how she felt and if I realized that I had really
offended her in some way, although I really never did, perhaps I would decide
to quit work or our differences might have ended between she and me, and
then she told me that what she had against me was since a long time and that
she believed that I was intelligent and that I should know what it was about
and I told her that I really found that I had never offended her and I did not
know what it could be , that she should be sincere and spill out all that she was
keeping inside and tell me what it was about without leaving anything unsaid.
I told her those things ... but not in an aggressive tone, just calmly and clearly
and then afterwards she said, "well , go to work and I will settle this with
Mr. Schoen."
The foregoing testimony is largely undenied and I am inclined to believe that it
suite clear that there was no particular rapport between Montalvo and Ramirez and
I have no doubt that some mutual recriminations were exchanged on this occasion
and that Montalvo undoubtedly documented her complaints and charges against
Ramirez.10
In any event , the discussion ended when Montalvo told them to go to work and
that she would settle it with Schoen. When they got back to their machines Rodriguez
told Ramirez that she felt so badly she could hardly work and Ramirez urged her to
stay at her machine. As they were thus talking DeSantis , one of Respondent's
owners ( who had just arrived from the United States ), approached them. When she
got to Rodriguez she saw that the employee was crying and asked the floorlady what
was wrong . She answered that Rodriguez had "problems at home." When DeSantis
came to Ramirez the latter arose, took from her pocket the following letter, handed
it to DeSantis , and asked her to read it-
Mrs. Santis:
I am the mother of a boy of 15 and my parents are elderly and sick and all
are dependent upon me alone as I have no husband. I work because I need the
money to maintain my family. My problem is the same as for the majority of
the other employees.
Because of our need of money we have to continue working in the factory
even when we are treated badly.
The majority of the employees are disgusted with the treatment they are
receiving but they are afraid to speak up or complain because they fear the
factory will be closed.
I wish to inform you of some things which I think are bad so that you may
judge for yourself.
For example , the supervisor has her favorites among the employees and over-
looks their shortcomings but she is quick to reproach others without good reason.
I can tell you of specific instances of the above.
Secondly, as there was no janitor for a full week and no one to clean the
bathroom which is used by 40 people, Dalila mistakenly compared our bath-
room with that one used by only two men and said that we were dirty and
indecent and pigs. Then she locked the door and we had to ask for the key to
use the bathroom.
We believe that the sanitary code of the government will not permit the lock-
ing of a bathroom used by so many employees.
10 Of these charges, more later.
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We believe also that it will help if Hilda and Dalila can study a course in
Personnel Management and Employee Relations so that they can understand
better how to supervise the operators. Improved supervision will result in
higher production and happier employees.
We all want to continue working here with you; please help us to improve
our working conditions.
Thanks for your attention one of your employees.
Aurea Ramirez
DeSantis read the letter then and there and made some terse comment which
Ramirez either did not understand or did not remember. That afternoon about
3 o'clock Ramirez and Rodriguez were again told by Montalvo to go to the office,
that Union Agent Pagan was there and wanted to talk to them. They were in the
office for about an hour and a half this time first alone with Pagan and later poined
by Montalvo. What actually transpired at this point is not particularly clear.
Apparently Pagan criticized Ramirez for handing DeSantis the letter." Considering
the amount of time involved in this discussion it would seem that probably much of
the same matter that was aired between Montalvo and Ramirez earlier in the day
was gone over again. According to Rodriguez' testimony Montalvo charged that the
two employees "were protesting so much and causing her so many problems, that
she had to decide what to do with the two of (them) ... that (they) had protested
about the toilets although she had placed the key so that it could be used 2 hours
later." She brought up many other complaints and personal matters; "they argued
for quite some time." Among other things the matter of receiving telephone calls
during lunch hour was discussed.1' Also the two employees were accused of having
written anonymous letters of complaint to DeSantis. At any rate, the net result was
an agreement between Pagan and Montalvo that Ramirez would be suspended for a
month and Rodriguez for a week.13
Shortly before 5 o'clock that same day a meeting of all the employees was called
at which Pagan and DeSantis were present. Pagan apparently did the talking on
behalf of DeSantis. The latter asked for anyone who had any complaints to make
to raise her hand.14 No one did. She also stated that "if you tell me which of you
are disgusted with the treatment you are receiving, and if there is a basis for that,
I will definitely rectify the situation." Apparently Pagan also spoke or made some
comments on her own initiative. She told of employees that were being well treated
and were making "good money." According to Rodriguez' undenied and credited
testimony Pagan also told them "try to settle the (best) they could and not to com-
plain too much because the owner would be "displeased" 15 and would close the
factory. Her testimony continued as follows
Mrs. DeSantis said that we should try to get along with Dalila because she was
a woman and she could be more considerate of us, that if she should bring a
manager from the United States that the Americans treated the workers worse
than a woman, more so being Puerto Rican, of our own race.
Dalila did not speak at the meeting, it was Mrs DeSantis who said that what
might happen was that they'd close the factory and move it to New York because
they had other factories over there and they did not need a factory here.
11 Ramirez so testified but since Montalvo was not present at the time I sustained an
objection to the testimony on the grounds that it was hearsay. However, Montalvo testi-
fied that in her presence Pagan had asked Ramirez why, if she had any complaint against
the Company or Montalvo, she had not taken it up with the chairlady "because as far
as she understood there was no problem at the factory "
12 Ramirez had a gentleman friend by the name of DuPont who made it a practice of
calling Ramirez on the telephone at the plant daily (she got a call the day she was dis-
charged) thereby tying up the plant telephone DuPont's wife had come to the plant to
protest about these calls on one occasion. Montalvo had reprimanded Ramirez about
these calls several times and had told her the telephone was to be used only in case of
emergencies. The undenied and credited evidence further shows that Ramirez was not
the only one who utilized the company telephone for personal calls ; others used it also
including Raquel Ocasio who talked to her boy friend from the plant frequently.
13 Later that day Rodriguez' suspension was revoked by DeSantis at the request of
Montalvo.
14 According to Montalvo's credited testimony Pagan "asked all the girls about the treat-
ment that Mrs. Ramirez mentioned in her letter."
"In her testimony DeSantis stated that Pagan had told the assembled employees "that
11they would have to cooperate .. . .
CONTINENTAL MANUFACTURING CORP. 263
According to the testimony of DeSantis, after the meeting was over and Pagan
had left the plant DeSantis requested "the production records and timecards of Aurea
Ramirez." From these she found that about 4 months previously Ramirez had pro-
duced a large batch of faulty work which had required considerable man-hours of
repair work to correct. She also found that out of a total of 170 workdays, Ramirez
had been absent 31 or approximately 18 percent, had been late 22 days or approx-
imately 13 percent, and had left early 19 days or approximately 11 percent. When
she had gone through these records DeSantis directed Montalvo to write a letter for
her signature discharging Ramirez. In this connection and in explanation of the
action she informed Montalvo that "because the girl was unhappy and her timing
was very bad and she was unhappy, therefore she just could not do her work right
and the best thing for me to do was to let her go-you cannot keep a person working
if she is not happy and cannot do the work " 16
According to Montalvo's testimony it appears that the original purpose of
DeSantis' trip to Puerto Rico at this time was to discharge Montalvo because "on
several occasions she had received letters similar to the one that Aurea Ramirez had
delivered to her in the factory...... On being informed of this by DeSantis, Mon-
talvo had told DeSantis that she was disgusted and was resigning. She thereupon
turned over the keys of the factory to DeSantis, got her purse, and started to leave.
DeSantis detained her at this point and apparently asked her to stay on the job
Montalvo then told DeSantis that she would remain on the job "but on the condition
that she give Aurea Ramirez a punishment."
Montalvo also testified on the basis of a leading question on direct examination
that prior to her request to DeSantis to "punish" Ramirez, she had advised DeSantis
that Ramirez was guilty of rules infractions involving lateness for work, spoiling
work, absenteeism, quitting early, attempting to incite protests against the Company
without justification, attempting to disrupt peaceful relations between the Company
and the employees, attempting to disrupt relations between the Union and the Com-
pany, and leaving her machine without authorization to spy on girls using the rest-
room. She also informed DeSantis "about the telephone calls" involving Ramirez at
the plant 17 Pursuant to this meeting with DeSantis and her instructions Ramirez
was discharged the next day being handed the following letter signed by DeSantis:
Due to the facts [sic] that you handed me a letter at your machine, upon my
arrival at the plant, you made me understand that you are not happy working
with us. And by saying what you said about your superiors, including myself,
that we do not know how to handle our employees and management, you showed
disrespect and therefor, we charge you with insubordination. From this act
we are compelled to eliminate you of your services.
Conclusions
In view of the discussion between Ramirez and Rodriguez about the action
Montalvo took regarding the restroom and the part Rodriguez played in the matter,
Respondent's contention that Ramirez was acting solely on her own behalf and that
there was no concerted activity here is patently erroneous.18 Nor is there any doubt
that the matter of the restroom and Montalvo's handling of it clearly involved a
working condition about which the employees' right to voice a concerted grievance
was protected under the Act.
The only remaining questions are: (a) whether the suspension of the two employees
on October 8 was for cause or was in retaliation for their having voiced a legal
grievance to their employer; and (b) whether or not the conversion of Ramirez' sus-
pension to a discharge on October 9 was because she had given DeSantis the grievance
letter. In connection with (a), while the evidence is not overwhelmingly preponder-
ant on the issue either way, I am inclined to believe and find that the suspensions
were the direct result of the employees' continuing against orders to leave their work
for the purpose of checking the use of the restroom and thus did not violate the Act.
1° 1lfontalvo testified that she was told to state on the letter that Ramirez was being
discharged "due to lateness , absenteeism and insubordination against management and
several other reasons."
17 Tho only one of the above matters that Montalvo had mentioned in her affidavit to
the Board was the last one regarding the restroom matter.
Ss Respondent apparently would negate the implication of Rodriguez ' cooperation with
Ramirez by branding her "a co-conspirator." Respondent is mistaken if it believes that
in order to be protected under the Act, action by the employees must be on the basis of
formal or majority sanction ( Kearney & Trecker Corporation, 112 NLRB 1145 ) or must
not be taken except through the union representatives ( The Ingalls Shipbuilding Corpo-
ration, 143 1 LRB 712).
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As for (b) however, I find that, as clearly indicated in DeSantis' letter, Ramirez was
discharged because of that letter. That DeSantis also may have taken into considera-
tion Ramirez' production and attendance records and the other things advanced by
Respondent as reasons for her discharge 19 does not absolve Respondent here. As
stated in Ryder Tank Lines, Inc., 135 NLRB 936, 944, "It is now well settled that
where an unlawful reason is a motivating cause, the coexistence of separate lawful
reasons do not eliminate the unlawful aspect of the conduct," N.L R.B. v. Whitin
Machine Works, 204 F. 2d 883, 885 (C.A. 1); N.L.R.B. v. Jamestown Sterling Corp,
211 F. 2d 725, 726, (C.A. 2); N.L.R.B. v. Great Eastern Color Lithographic Corp.,
309 F. 2d 352, 355 (C.A. 2), cert. denied 373 U S. 950. Thus, even though Ramirez
may have been a "dissident and annoying employee," in discharging her for the
reason stated by Respondent the Act was violated Duo-Bed Corp. v. N L.R.B.,
337 F. 2d 850 (C.A. 10). Nor can Respondent logically contend that the discharge
of Ramirez was merely a discretionary extension by DeSantis of the legal suspension
for her restroom surveillance in view of her having rescinded Rodriguez' similar
suspension.
I also find that by failing to repudiate or deny to the employees Pagan's statement
(made in the presence of DeSantis and Montalvo) that if they made too many com-
plaints to the owner she would be displeased and would close the factory, Respondent
is chargeable with an additional violation of Section 8(a)(1) of the Act.2° In view
of this finding I deem it unnecessary to determine whether Montalvo made such
threats on other occasions as she denied in her testimony. However, it is interesting
to note in this connection that Montalvo also testified that on occasions when she
reprimanded Ramirez for talking in the plant, the latter "would become very furious"
about it and "always said that it did not matter to her whether they closed the factory
because as she knew how to work she would work anywhere."
During the hearing the General Counsel amended the complaint to allege that
Respondent had illegally interrogated Rodriguez about what her testimony was going
to be in this matter and offered testimony through Rodriguez which, if credited, would
sustain the allegation. In her testimony, Montalvo contradicted Rodriguez' version
and claimed that all she had done was ask Rodriguez on whose behalf she was going
to appear at the hearing telling her "that if she came for the company the expenses
would be paid by the company.. . I credit Montalvo here and find that this
interrogation did not constitute a violation of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection 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 thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I
will recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent discharged Aurea E. Ramirez for having engaged
in activity protected by the Act, I will recommend that the Respondent be ordered
to offer her immediate and full reinstatement to her former or substantially equivalent
position, without prejudice to her seniority and other rights and privileges, and make
her whole for any loss of earnings she may have suffered by payment to her of a
sum of money equal to the amount she normally would have earned as wages from
the date her rights were interfered with to the date of the offer of reinstatement, less
her net earnings during said period, with backpay computed on a quarterly basis in
10 Tn addition to these Indictments of Ramirez, Respondent offered undenied and credited
testimony of other faults on the part of Ramirez* She talked loud and long at her work
criticizing the Company and Miontalvo and her assistant saying that they "had to get
rid of them . . . One employee, Raquel Ocasio, had her work place changed to get
away from her post between Ramirez and Rodriguez for the reason that Ramirez' loud
talking bothered her and because around them "the atmosphere was one of rancor and
intrigue" against Montalvo and her helper. According to Montalvo's credited testimony,
"on several occasions (she) called (Ramirez') attention for talking out loud and for pro-
test making, that is to say not protests but things that were not within the law . . . "
20 Wagnline, Inc., 81 NLRB 511 ; The Russell Manufacturing Co., Incorporated, et al,
82 NLRB 1081.
CONTINENTAL MANUFACTURING CORP. 265
the manner established by the Board in F. W . Woolworth Company, 90 NLRB 289,
291-294 , and to include interest as held in Isis Plumbing & Heating Co ., 138 NLRB
716. However , having found that the 1-month suspension of Ramirez was not in
violation of the Act , it is my recommendation that the base date from which her
backpay is to be computed be set 30 days after the date of her discharge.
I shall also recommend that the Respondent preserve and, upon request, make
available to the Board or its agents, payroll and all other records necessary to facilitate
the determination of the amounts due under this recommended remedy.
In view of the nature of the unfair labor practices committed , the commission of
similar unfair labor practices reasonably may be anticipated . I shall therefore
recommend that the Respondent be ordered to cease and desist from infringing in
any other manner upon rights guaranteed to their employees by Section 7 of the Act.
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. International Ladies' Garment Workers Union, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
2. Continental Manufacturing Corp. is engaged in commerce within the meaning
of Section 2(6) and ( 7) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act , Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act
4. Said unfair labor practices affect commerce within the meaning of Section 2(6)
and (7 ) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in the case , and pursuant to Section 10(c) of the National Labor Rela-
tions Act , as amended , I recommend that the Respondent , Continental Manufacturing
Corp., it officers , agents, successors , and assigns , shall:
1. Cease and desist from discharging or threatening reprisals against employees
for engaging in concerted activities for the purpose of collective bargaining or mutual
aid and protection in connection with their wages, hours , or working conditions, and
in any other manner interfering with , restraining , or coercing employees in the
exercise of their right to engage in concerted activities for such purposes.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Reinstate Aurea E. Ramirez to her former or substantially equivalent posi-
tion, without prejudice to her seniority or other rights and privileges , and make her
whole in the manner set forth in the section hereof entitled "The Remedy."
(b) Preserve and , upon request , make available to the Board or its agents, for
examination or copying , all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records relevant to a determination
of the amount of backpay due under the terms of this Recommended Order.
(c) Post at its plant in Mayaguez , Puerto Rico , copies of the attached notice
marked "Appendix." 21 Copies of said notice , to be furnished by the Regional
Director for Region 24, shall , after being duly signed by the Respondent 's repre-
sentative, be posted by it immediately upon receipt thereof, and be maintained by it
for at least 60 consecutive days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered , defaced, or covered by
any other material.
(d) Notify said Regional Director , in writing , within 20 days from receipt of
this Decision what steps Respondent has taken to comply herewith.22
21 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a Recommended Order 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 "a Decree of the United States Court
of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and
Order".
211n 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 "
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT interfere with, restrain, or coerce employees in the exercise of
their right to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, pertaining to their wages, hours, or work-
ing conditions, either by discharging employees for engaging in such activities,
threatening reprisals therefor, or in any other manner.
WE WILL offer to Aurea E. Ramirez immediate and full reinstatement to her
former or substantially equivalent position, without prejudice to any seniority or
other rights and privileges previously enjoyed, and make her whole for any
loss of pay she suffered as a result of our interference with her rights under
the Act.
CONTINENTAL MANUFACTURING CORP,
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, P.O. Box
11007, Fernandez Juncos Station, Santurce, Puerto Rico, Telephone No. 724-7171,
if they have any question concerning this notice or compliance with its provisions.
St. Louis Printing Pressmen and Assistants Union No. 6, Inc.,
affiliated with International Printing Pressmen & Assistants
Union of North America, AFL-CIO and Nordmann Printing
Company. Case No. 14-CD-172. October 20, 1965
DECISION AND ORDER
Upon a charge filed on June 15, 1964, by the Nordmann Printing
Company (herein referred to as the Company), the General Counsel
of the National Labor Relations Board by the Regional Director for
Region 14, issued a complaint, dated May 10, 1965, against the St. Louis
Printing Pressmen and Assistants Union No. 6, Inc., affiliated with In-
ternational Printing Pressmen and Assistants Union of North Amer-
ica, AFL-CIO (herein referred to as Respondent), alleging that Re-
spondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (b) (4) (i) and (ii)
(D) and Section 2 (6) and (7) of the National Labor Relations Act, as
amended, On June 15, 1965, copies of the complaint, the charge, and
a notice of hearing thereon were duly served upon the Respondent, the
Company, St. Louis Typographical Union No. 8, affiliated with Inter-
national Typographical Union, AFL-CIO (ITU herein), and upon
St. Louis Stereotypers Union No. S. affiliated with International Stere-
otypers & Electroplaters Union, AFL-CIO (Stereotypers herein).
155 NLRB No. 30.