Knits and Tweeds, Inc.

National Labor Relations Board - Board Decisions

Jun 6, 1973

203 N.L.R.B. 1211 (N.L.R.B. 1973)

KNITS AND TWEEDS
Knits and Tweeds , Inc. and Local 107, International
Ladies Garment Workers Union , AFL-CIO. Case
29-CA-2552
June 6, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On July 31, 1972, Administrative Law Judge ' Mau-
rice S. Bush issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
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 brief
and has decided to affirm the rulings, findings 2 and
conclusions 3 of the Administrative Law Judge.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Knits and Tweeds, Inc., Deer
Park, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 The 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 credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record
and find no basis for reversing his findings.
We also find , contrary to the Administrative Law Judge, that Respondent's
production manager did not violate Sec. 8(a)(l) of the Act by stating to
employee Neives , during the Union's organizational drive, "... that if the
Union would try to get into the place and pull all the people out, then all the
people would be out of work , and there was still going on with the knitting,
they would send the work out to some other jobbers, and they would still,
you know, have the production out." In our view , this statement is not
coercive, but merely iterates Respondent 's right to subcontract work in the
event its employees engaged in a strike and , therefore , refused to perform
their jobs.
We further find that although the Administrative Law Judge incorrectly
found that there was no miscount in the Viva bundles, his finding that
Respondent unlawfully discharged Maffia is supported by the record. The
record shows that Respondent engaged in a course of conduct designed to
prevent the Union from organizing its plant, and that its unlawful attempts
to accomplish this objective were directed to employees whose pro or anti-
union sentiments were unknown to it, ostensibly because such knowledge
was immaterial to its objective . Maffia , however , presented a different prob-
lem. Respondent was acutely aware of her outspoken prounion sympathies
1211
which she expressed to Respondent in terms indicating that it would be
restricted in certain of its activities and would be accountable to a union for
such activities "... if this was a union shop...... Thus, despite the Viva
bundle miscount, we find that the evidence pertaining to the Viva miscount
order is not sufficient to overcome the evidence of record and the inferences
flowing therefrom that Respondent discharged Maffia during the Union's
organizational drive because her known union advocacy posed a potential
threat to its objective to defeat union organization , an objective it sought to
further by her elimination as an employee . We further find that her discharge
merely was an extension of Respondent 's earlier unlawful attempts to repudi-
ate the Union and, moreover , was calculated to serve as an object lesson to
all other employees who may have manifested an interest in union organiza-
tion.
3 Respondent's request for oral argument is hereby denied as the record
in this proceeding, including the exceptions and brief , adequately present the
issues and positions of the parties.
° In the absence of exceptions thereto, we shall adopt , pro forma, the
Administrative Law Judge's dismissal of certain allegations of the complaint.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAURICE S. BUSH, Trial Examiner: Respondent Knits and
Tweeds, Inc., employs approximately 28 employees, mostly
women, at its plant near New York City, where it is engaged
in the double operation of converting yarn into knitted
fabrics and the manufacturing of such fabrics into ladies'
sweaters, cardigans, capes, and pants.
On July 8, 1971, Local 107, the Charging Party, com-
menced a campaign to organize Respondent's plant.
Arising out of the events of that campaign, the issues
herein as reflected by the pleadings, as amended, are wheth-
er: (1) the Respondent is in violation of Section 8(a)(1) of
the National Labor Relations Act by threats to its employ-
ees with closure of the plant if they gave their support to
Local 107 and promises and grants of benefits to its employ-
ees to induce them not to support Local 107, and (2)
Respondent is in violation of Section 8(a)(3) of the Act by
its discharge of Rose Maffia because she had joined or
assisted Local 107 or engaged in other concerted activity.
The complaint herein was issued on December 16, 1971,
pursuant to a charge filed on October 6, 1971, and duly
served upon Respondent. Respondent's answer denies the
alleged unfair labor practices.
The case was tried before the Trial Examiner on February
28 and 29 and March 1, 2, 2, 3, 14, and 15, 1972. Briefs were
filed by counsel on March 22, 1972. These have been care-
fully reviewed and considered.
For the reasons hereinafter indicated as derived from the
findings of facts herein, I find the Respondent in violation
of the Act substantially as alleged in the complaint.
Upon the entire record in the case and from my observa-
tion of the witness, I make the following:
FINDINGS OF FACT
I JURISDICTIONAL FINDINGS
Respondent Knits and Tweeds, Inc., a New York corpo-
ration, is engaged in the manufacture, sale, and distribution
of knit goods and related products at its plant at Deer Park,
New York, which is its principal office and place of busi-
203 NLRB No. 155
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ness . During the past year, a representative period, Respon-
dent in the course and conduct of its business operations,
manufactured , sold, and distributed at its place of business,
products valued in excess of $50 ,000, of which products
valued in excess of $50 ,000 were shipped from its place of
business at Deer Park in interstate commerce directly to
States of the United States other than the State of New York
in which it is located.
The above-captioned Union is a labor organization with-
in the meaning of the Act.
H. THE UNFAIR LABOR PRACTICES
A. Beginnings of Organizational Drive
and Company Knowledge
Local 107 commenced its efforts to organize
Respondent's plant in the summer of 1971. Sometime in late
June or early July 1971, the Company's presser, Jose Nieves,
was contacted by the Local's then organizer Anita Ramirez.
Nieves and Ramirez have known each other quite well from
having worked together for another garment manufacturer
in prior years before Ramirez became an organizer for Lo-
cal 107 . Nieves at the time Ramirez contacted him had
already been a member of Local 107 in good standing for
2 or more years by reason of prior employment with another
employer which had a collective-bargaining agreement with
Local 107, but was exempted by the Local from paying
union dues while employed in Respondent 's plant because
it was not a union shop . Nieves cooperated with Ramirez in
her efforts to organize the Respondent 's factory by giving
her a name list of Respondent's employees and an authori-
zation card, dated July 8, 1971, authorizing Local 107 to
represent him for purposes of collective bargaining with the
Respondent . In one of her two visitations to Neives, Rami-
rez told him that she was about to give up her employment
as an organizer for Local 107 because she was moving to
Florida and told him that the president of Local 107 wanted
to speak to him about taking over her full -time job as an
organizer for Local 107 . After two visits with Local 107's
president from whom he received the offer of the organizer's
job, Nieves declined the position and remained in the em-
ployment of the Respondent.
The next employee to sign a union authorization card was
Rose Maffia, the alleged discriminatee herein who at all
times here pertinent was employed by the Respondent as a
bundler. Her card was obtained on July 21 , 1971, by Rami-
rez and Yolanda MiLazzo, another organizer for Local 107,
when they called at her home. Maffia while employed by
Respondent retained her membership in a sister local, Local
89, and was a staunch supporter of a union shop.
Between July 21 and July 30, 1971, it became common
knowledge among Respondent 's employees that Local 107
was seeking to organize Respondent's plant as a result of
visitations by the Local's aforementioned organizers at their
homes .' The record shows that organizers during the course
of the campaign visited all of Respondent's employees.
Among the employees so visited was Grace Luth, a deaf
i This appears from the credited testimony of MiLazzo, Diana Roman,
Eladia Barbosa , and Nieves
mute employed at Respondent's plant as a presser. MiLazzo
called at her home on July 27, 1971, and there solicited her
union authorization card by written communications on
small pieces of paper from a notebook and by leaving with
Luth some union literature. MiLazzo in her handwritten
notes to Luth showed the advantages the employees would
have under union representation. In one of her notes, Mi-
Lazzo told Luth that Neives, the other presser, had signed
an authorization card. Luth told MiLazzo that she would
give consideration to signing a union card but there is noth-
ing in the record to show that she ever signed a card.
In the morning of the next day, July 28, at the plant Luth
exhibited MiLazzo's written notes on the advantages of
union representation to a number of her coworkers, one of
whom was Helmy Vogelbacher. Luth also showed the notes
that same morning to her supervisor Walter Durchalter,
production manager of Respondent's finishing department,
as observed by Vogelbacher.2
Respondent's president William Gerold also received in-
dependent intelligence from at least two of the plant's night
employees prior to July 28, 1971, that Local 107 was seeking
to organize the plant.
Conclusion
From the above evidentiary findings I find and conclude
that the Respondent had knowledge of Local 107's vigorous
efforts to organize its plants prior to the dates of any of the
unfair labor practices alleged in the complaint, to wit, prior
to July 31, 1971.
B. Threats of Plant Closure To Forestall Union
As heretofore noted, Grace Luth, the aforementioned
deaf mute employee, showed to Production Manager Dur-
chalter on July 18, 1971, the written communications be-
tween herself and Union Organizer MiLazzo of the night
before. One of these notes in the handwriting of MiLazzo
showed that employee Nieves had signed a union authoriza-
tion card. On that same day after Nieves reported to work
at 4 p.m., Durchalter looked him up and showed him the
written notes Luth had turned over to him, bearing Nieves'
name . Durchalter thereupon interrogated Nieves on wheth-
er he was "implicated" with the Union.3 Nieves, who as
heretofore shown had been the first employee to sign a
2 This finding is based on the credited testimony of Union Organizer
MiLazzo and employee Jose Nieves. MiLazzo visited the home of Helmy
Vogelbacher in the evening of that same day, July 28, to solicit her support
for Local 107. MiLazzo's credited testimony shows that in the course of the
conversation she had with Helmy that night Helmy informed her that she had
seen Luth showing the written communications of the night before between
Luth and MiLazzo , to Durchalter that morning at work (No objection
having been made to this testimony on the ground of hearsay, that testimony
is properly before the Examiner as evidence .) Although more direct testimo-
ny by Vogelbacher herself is lacking from the record that she had seen the
written notes in question passed by Luth to Durchalter , the finding that Luth
had exhibited the notes to Durchalter is based not only on MiLazzo's testi-
mony, but also on the credited testimony of the aforementioned employee
Nieves which shows that he was questioned by Durchalter on July 28 on his
union activities because Durchalter had found Nieves' name on one of the
written notes that Luth had shown and turned over to Durchalter.
i As there is no unlawful interrogation issue in the case under the plead-
ings, the above finding is made solely as a prelude to other testimony with
respect to the alleged threat to close the plant under stated conditions
KNITS AND TWEEDS
union authorization card, untruthfully denied out of fear for
the security of his job, that he was implicated with the
Union. But in the conversation which followed, Nieves'
credited testimony shows that Durchalter told him that if
the Union succeeded in getting in and causing a strike, the
Respondent would break the strike and the Union by sub-
contracting the knitted fabrics it made to the plants of other
manufacturers for finishing into garments , just as it had
done prior to December 1970, when it had expanded its
manufacturing activities to include the manufacture of its
knitted fabrics into ladies' garments .' I find that this consti-
tuted a threat by Respondent through Durchalter to close
the garment manufacturing part of the plant if the Union
got in and caused a strike.
The record also shows that Respondent through Durchal-
ter made an even more embracing earlier threat of plant
closure if the Union succeeded in organizing its garment
manufacturing employees. Durchalter in speaking to a
group of employees which included the aforementioned
Helmy Vogelbacher about a week prior to his threat of plant
closure to Nieves, told the group that Respondent's presi-
dent, Gerold, "Will have to close up the shop" if his efforts
to match the benefits promised by the Union failed to keep
the Union out.5
The above finding of fact and the conclusion therefrom are based upon
the following credited testimony of Nieves : "And then he [Durchalterl told
me that if the union would try to get into the place and pull all the people
out, then all these people would be out of work , and there was still going on
with the knitting , they would send the work out to some other jobbers, and
they would still, you know , have the production out."
Durchalter admits that he made the above statements to Nieves, but testi-
fied that he made the statements to Nieves in December 1971, not on July
28, 1971, in the midst of Local 107's campaign to organize the plant, as
indicated by Nieves. Durchalter's testimony that he made these statements
to Nieves in December 1971, rather than in July 1971, is not credited as the
record shows Durchalter to be an unreliable witness as will be shown in detail
below under the issue of whether Rose Maffia was discriminatorily dis-
charged.
S The above finding is based upon the credited testimony of former em-
ployee Helmy Voeglbacher . Vogelbacher quit her job in Respondent's ship-
ping department in September 1971, when Durchalter told her "if I didn't like
it, I could quit" in reply to her complaints to him about the mistakes of
another employee in the department that made her work more onerous
Respondent seeks to have Vogelbacher 's testimony discredited on the ground
that as a disgruntled former employee she "had reason to be opposed to
Respondent." While the record shows that Vogelbacher feels that she had
been unfairly treated by Durchalter , her testimony is so direct and detailed
on the statements made by Durchalter to a group of employees of which she
was a part as to compel credibility of her testimony that Durchalter told the
gathered employees that Gerold "will have to close up the shop" if his efforts
to match the benefits promised by the Union failed to keep the Union out.
Respondent's vigorous cross-examination of Vogelbacher did not shake her
testimony but on the contrary reinforced it. In addition Vogelbacher's de-
meanor further compels credibility. Aside from motive , Respondent also
seeks to have her described testimony discredited on the further ground that
the meeting at which Durchalter made the ascribed statements "could not
have occurred when she said it did," to wit about a week prior to July 30,
1971, because there is "no evidence that Respondent knew of Local 107's
organizational effort before the evening of July 27, 1971" It is possible that
Helmy is mistaken by 2 or 3 days about the time Durchalter made the
statements in question to the group of employees of which she was a part,
but the record leaves no doubt that the Respondent did have more than an
inkling of the Union's efforts to organize the plant whatever that date was
when Durchalter made the described statements to Vogelbacher and her
fellow workers . In any event I am of the opinion that Durchalter 's threat of
plant closure if the Union got in constitutes a violation of Section 8(a)(1) of
the Act even if the Company had no knowledge of Local 107's organizational
efforts at that time. All other grounds advanced by Respondent for discredit-
Discussion and Conclusion
1213
As a result of the above credibility resolution as reflected
in the foregoing evidentiary findings, it is found that the
Respondent through its supervisor Durchalter on two dif-
ferent occasions made varying threats to employees of plant
closure if the Union succeeded in organizing its garment
production employees.
C. Promises and Grants of Benefits
To Forestall Union
Respondent admits knowledge at least as early as of July
27, 1971, of Local 107's efforts to organize the garment
manufacturing part of its plant.
On July 30, 1971, the Respondent issued a bulletin dated
July 31 (a Saturday), to all of its employees calling attention
to their "Employees Benefits." President Gerold admits that
the Union's efforts to organize the plant was a factor in the
distribution of the bulletin, but claimed that the Company
had been planning to distribute such a bulletin even before
Local 107 started its organizing campaign. The bulletin car-
ries the phrase "Your Right To Be An Individual." From
this phrase, the incidents reported below, the misrepresenta-
tions in the bulletin as shown below, and the record as a
whole, I find that Respondent's real purpose in distributing
the bulletin to its employees on July 30, 1971, was to coun-
teract the Union's then mounting effort to organize the
plant. General Counsel does not claim that the statements
in the bulletin are per se in violation of the Act. Instead
General Counsel relies on oral statements made by Dur-
chalter to employees both before and after he had passed out
the bulletin to the employees to show that unlawful promises
of employment benefits were made by him for the purpose
of choking the Union's campaign to organize the plant. The
bulletin, signed by President Gerold, lists the following as
Respondent's "Employees Benefits:"
1. $2,000 life insurance policy after 3 months, as of
July 31, 1971.
2. Pension and retirement fund with a vested interest
(that is, after 3 years you own a percentage of this
fund). This increases with each year of employment
until it reaches 100 percent at least or $125 monthly.
3. Disability benefits equal to 100 percent retire-
ment, $125 or more monthly for life, also paid weekly
sick benefits.
4. Paid health coverage (Blue Cross.)
5. Cost of living raise twice annually equal to gov-
ernment index (approximately 6% per year.)
6. Vacation pay: 2% first year, 3% second, 4% third
and fourth year, 5% fifth to ninth years, 6% 10 years or
over.
7. Seven paid holidays, including your birthday.
The bulletin then goes on to say:
All of the above are at least 50% more than any other
business of this type can offer and above all: YOUR
RIGHT TO BE AN INDIVIDUAL ... IN THE
FOLLOWING WAYS:
ing Helmy's testimony have been carefully considered and found without
merit.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Your right to work overtime when available... .
Your right to work part time. .. .
Your right to hours tailored to your individual needs
Your right to earn incentive raises in addition to cost of
living increases.
It is found that the bulletin conveys the message that all
the seven-listed employee benefits were already in effect,
except for the life insurance benefit which was to go into
effect on July 31, 1971. As detailed below, the record will
show that two of these benefits (Pensions and disability
benefits) have never been put into effect and that the Com-
pany-paid Blue Cross benefits did not go into effect until
some months after the bulletin was issued.
Although as noted some of the employee benefits listed
in the bulletin were nonexistent at the time of the issuance
of the bulletin, President Gerold testified that he had been
planning for many months to grant such benefits in the near
future. However, the record fails to show that he or any
other persons in management ever told any of the employ-
ees in the plant that they were planning to grant such bene-
fits prior to the time Local 107 began its campaign to
organize Respondent's plant. The credited testimony of at
least three of Respondent's employees , Mildred Buechner,
Diana Roman , and the aforementioned Jose Nieves, shows
that they had never heard of the nonexistent benefits listed
in the bulletin until they received the bulletin. From the
record as a whole it is found that the nonexisting benefits
listed in the bulletin were promises of future benefits and
that such promises were brought to the attention of
Respondent's employees for the first time at the time Local
107 was actively and aggressively conducting its campaign
to organize Respondent's plant.
In the prior section of this Decision it was found that
Supervisor Durchalter in speaking to the aforementioned
Helmy Vogelbacher and several other female employees as
a group, told them about a week or so prior to the distnbu-
tion of benefit bulletin that the Company's president would
"close up the shop" if the Union came in. That finding was
based upon the Vogelbacher's credited testimony, but her
testimony in that connection related to only part of the
remarks made by Durchalter at that time. Her credited
testimony further shows that Durchalter in the same conver-
sation told the group of employees he was addressing that
the Company was planning to offer its employees new em-
ployment benefits to match the benefits Local 107 was
promising in its campaign to organize the plant . This was an
advance reference to the employee benefit bulletin which
Durchalter later personally distributed to the employees on
July 30, 1971.
Vogelbacher's testimony also shows that Durchalter
again spoke to her concerning the Union about a week later
when he gave her a copy of the Company's benefit bulletin.
Her credited testimony shows that at that time Durchalter
told her that the benefits listed in the bulletin would be
given by Respondent to its employees "if the Union doesn't
come in.-6
The prior section of this Decision also shows that Super-
visor Durchalter in speaking to presser Jose Nieves on July
30, 1971, not only interrogated him on his union activities
but also threatened plant closure if the Union got in and
caused a strike. During the course of that conversation Dur-
chalter handed to Nieves a copy of the Company's "Em-
ployees Benefits" bulletin. I infer and find from the
coincidence of Durchalter's threat and the handing of the
bulletin to Nieves that the sole purpose of the benefits
promised in the bulletin was to spike the Union's efforts to
organize the plant .7
Although as noted above the Respondent's benefit bulle-
tin of July 30, 1971, listed a number of employee benefits
as seemingly present benefits, the Respondent in its brief
now "concedes that several of these benefits were not in
effect at the time the circular was issued ." Of the seven
benefits listed in the bulletin (G.C. Exh. 2), at least two had
not been put into effect at the time of the trial herein, some
8 months after the distribution of the bulletin. These are the
pension and disability benefits shown in the bulletin as
current benefits. The "paid" Blue Cross benefits listed in the
bulletin did not go into effect until some 5 months later. The
"seven paid holidays" listed in the bulletin reflects six ex-
isting paid holidays and one new paid holiday to employees
on their birthdays. I have been unable to find any indication
in the record when the birthday holiday benefit went into
effect, if ever . The Company-paid life insurance policy of $3
thousand for each employee went into effect after the bulle-
tin was issued .8 I find that this listing of nonexisting employ-
ee benefits in the Company's bulletin under the heading of
"Employees Benefits" is a further indication that the real
purpose of the bulletin was to thwart the Union's efforts to
organize Respondent's plant and that the Respondent re-
sorted to misrepresentations to accomplish its purpose.
Paragraph 9 of the complaint as amended (G.C. Exh. 10)
alleges in part that the Respondent both promised and
granted to its employees (1) a $3 thousand life insurance
policy, (2) wage increases, (3) additional paid holidays,
6 The prior footnote sets forth the reasons for the crediting of
Vogelbacher's testimony The same rationale applies here. In connection
with Vogelbacher 's above -reported testimony , Respondent urges another
reason for not crediting her testimony, it is that "all of the other witnesses
receiving the circular denied that Durchalter mentioned the Union or tied the
benefits to refection of the Union " However, as the testimony of none of
these other witnesses show that they were present on the occasion when
Durchalter spoke to Vogelbacher as found above , the mere fact that Durchal-
ter did not mention the Union to these other employee-witnesses does not
disprove Vogelbacher 's testimony that Durchalter did speak to her about the
Union as shown above. Respondent also seeks to have Vogelbacher 's testi-
mony discredited because General Counsel did not have her testimony corro-
borated by other witnesses Durchalter 's denial that he made the remarks
attributed to him by Vogelbacher is also uncorroborated. As between the two
I credit Vogelbacher As will hereinafter be shown , the record reflects that
Durchalter did not make a reliable witness.
7 While the record shows as found above that the Respondent through
Durchalter orally made offers and promises to employees or certain fringe
benefits contingent upon the defeat of the Union's efforts to organize its
plant as alleged in the complaint , there is no evidence that President Gerold
personally also engaged in the same conduct in the complaint Accordingly
that part of par 9 of the complaint, as amended , which alleges such unlawful
conduct on the part of Gerold will be recommended for dismissal for failure
or8proof
The record is scattered and hazy on much of the detail concerning these
"benefits" and in consequence the briefs of the parties are likewise sketchy
on the subject
KNITS AND TWEEDS
and (4) fully paid health insurance (Blue Cross) "to induce
them to refrain from giving any assistance or support to it
[Unionj, and to induce them to abandon their membership
in and activity on its [Union's] behalf." While the bulletin
does list "cost of living raise twice annually" as one of
Respondent's "Employee Benefits," this is not deemed a
"wage increase" as alleged and normally understood. The
record fails to show that the Respondent promised their
employees a wage increase in the normal sense of that
phrase or that it actually granted such a wage increase or
even a "cost of living raise" at any time here material.
Accordingly that portion of paragraph 9 of the complaint
as amended which alleges that a wage increase was prom-
ised and paid by the Respondent for the purpose of thwart-
ing the Union's effort to organize the plant will be
recommended for dismissal for failure of proof. I find that
all other factual allegations of promises and grants of bene-
fits under paragraph 9 of the complaint, as amended, have
been sustained by counsel for the General Counsel. The
conclusions to be drawn therefrom will be stated below.
Discussion and Conclusions
I find and conclude from the evidentiary findings set
forth above that the Respondent by its agent Walter Dur-
chalter both on and before July 30, 1971, offered and prom-
ised to its employees an additional paid holiday on their
birthday, health insurance paid in full by Respondent, disa-
bility insurance, and pension and retirement benefits, and
promised and granted a $3,000 life insurance policy, an
additional paid holiday, and fully paid health insurance, to
induce them to refrain from becoming or remaining mem-
bers of the Union, and to refrain from giving any assistance
or support to it, and to induce them to abandon their mem-
bership in and activity on its behalf, substantially as alleged
in paragraph 9 of the complaint, as amended,9 in violation
of Section 8(a)(1) of the Act.
This ultimate finding of fact and conclusion is compelled
by the coincidence and combination of a number of fac-
tors. 10 Among these is the (1) admitted fact that Respondent
had knowledge of the Union's campaign to organize its
plant for a number of days prior to the issuance to its
employees of its "Employees Benefit" bulletin; (2) the fur-
ther admitted fact that the Union's campaign was one of the
causative factors 11 in the preparation and distribution of
the bulletin to Respondent's employees; (3) the fact that
the bulletin was issued during the height of the Union's
9 As heretofore noted the allegation that President Gerold also engaged in
the proscribed conduct and that wage increases were promised and granted
will be recommended for dismissal for failure of proof.
10 Most of these factors or facts are admitted or undisputed . Credibility
resolutions were required only on the fact ( item 4) that threats were made
to -close the plant if the Union got in and on the fact (item 5) that the
promised benefits in the bulletin were contingent upon the Union not getting
in. These credibility resolutions were resolved in favor of the testimony of
Vogelbacher and Nieves as against the testimony of Durchalter for the rea-
sons stated above Further reasons for not crediting the testimony of Dur-
chalter on the issues dealt with to this point are set forth in the next section
of this Decision dealing with the discriminatory discharge of Rose Maffia.
11 A more sweeping finding and conclusion was reached above from the
record as a whole that the Union's campaign was the sole factor that caused
the issuance of the Respondent 's "Employees Benefit" bulletin.
1215
campaign; (4) the fact that Respondent's Production Man-
ager Durchalter told employee Helmy Vogelbacher both
before and after the issuance of the bulletin that the employ-
ees' benefits listed therein were contingent upon the Union
being kept out of the plant; (5) the fact of the threat of plant
closure made by Durchalter to employee Vogelbacher if the
Union got in and the similar threat by Durchalter to em-
ployee Jose Nieves that the Company would close up the
finishing department of its plant and farm out its garment
production to other factories if the Union came in and
caused a strike; (6) the fact that the bulletin under its head-
ing of "Employees Benefits" gave the impression that the
Company was already giving its employees the benefits
therein listed whereas the admitted fact is that most of the
listed benefits were nonexisting and at most could be con-
sidered only as promises of future benefits; (7) the fact that
at least two of the promised benefits (pension and disability
benefits) had not been fulfilled many months after the is-
suance of the bulletin; and (8) the discriminatory discharge
of Rose Maffia as hereinafter set forth as an example to
other employees of what could happen to a union sympath-
izer.
That the real purpose of the bulletin was to stifle the
Union's effort to organize Respondent's plant is especially
made evident by the assertion in the bulletin of phantom
employee benefits such as the listed retirement and pension
benefits.
D. Alleged Discriminatory Discharge
of Rose Maffia
Originally engaged exclusively in the conversion of yarn
into knitted fabrics, the Respondent, in December 1970,
took over the finishing operations of a cotenant in the plant,
B.K.B.K ., Ltd., and thereafter was engaged in both the
production of knitted fabrics and the finishing of such fab-
rics into ladies' sweaters, cardigans, capes, pants , and simi-
lar ladies' knitwear.
With the acquisition of the operations of B.K.B.K., Ltd.,
Respondent also took over and hired B.K.B.K.'s former
employees. Among the employees so taken over were Rose
Maffia, the alleged discriminatee, and Mildred Buechner,
and her daughter Kathryn Buechner. Mildred was Maffia's
sewing forelady and supervisor. Kathryn, the daughter, was
forelady of the shipping department. Maffia's original hir-
ing at B.K.B.K. was by the joint decision of Mildred and
Kathryn Buechner, mother and daughter.
Maffia, a middle-aged woman, had continuous employ-
ment between B.K.B.K. and Respondent from June 1, 1970,
until her discharge by the Respondent on August 2, 1971,
under circumstances hereinafter related.
For about a year prior to her discharge, Maffia worked
as a bundler at the plant. Kathryn Buechner was the bun-
dler prior to the time Maffia took over the job. Kathryn
instructed and taught Maffia the duties of her then new job
as a bundler.
Maffia's job as a bundler called for three separate but
related functions, all of which involved the handling of cut
component pieces or parts of knitted fabric that go to make
up the finished garment which, for example, in the case of
a simple sweater, would consist of its front, back, and
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sleeves. Each multiple cutting of a component part is called
a lay and usually consists of 24 identical pieces. Each lay has
attached to its top piece a tag known as the knitter's tag. The
knitter's tag shows the customer's order number, the style
number which is the symbol for the name of the customer
for whom the merchandise is being made up, the lot number
which is the symbol of the color of the garment under manu-
facture, and the amount or quantity of the pieces in the lay.
After a lay is cut, the nearby cutter shoves the lay over to
Maffia's adjacent station.
Upon the receipt of such lays from a cutter, Maffia's first
function was to record certain data about the lay in an
inexpensive dime store spiral notebook. When she first took
over the bundler-job from Kathryn Buechner, she recorded
this data in the same kind of notebook Kathryn Buechner
had started. That original book is not in evidence. When the
original book was filled up, Maffia purchased a similar
spiral notebook for 49 cents for such record keeping. That
book is in evidence as Respondent's Exhibit 2, but not in its
original state as the evidence shows that half of the pages
of the original notebook are missing . Following the instruc-
tions Maffia had received from Kathryn, Maffia sectional-
ized the notebook by putting the name of the customer
(called jobber by the Respondent) on one page of the book
and leaving several pages for daily recordings of the lays of
cuttings made for that customer . Under the name and sec-
tion of the notebook devoted to a designated customer, she
would make a record of the cuttings for such customer,
showing the date of the cutting, the number of pieces cut,
the kind of cutting or lay (for example, the sweater's front
or back or sleeves), the size of the garment for which the
cuttings were cut, and the color of the cuttings. Much of this
basic information came from the knitter's tag. Where the
notebook did not show a color for the recorded cutting or
lay, the record shows that it was well understood that the
lay was the predominant standard white shade.
It was Maffia's second or further job to bundle the com-
ponent pieces or parts of garment under manufacture into
bundles for finishing by the sewers and to count and record
in her spiral notebook the number of finished garments each
bundle would make. Generally each bundle contained suffi-
cient parts to make up 2 dozen finished garments. Maffia
put a ticket on each bundle with pertinent data showing
customer, style, size, quantity, etc. Maffia's bundle count
served the dual purpose of use as a basis for paying
Respondent's piece work sewers and pressers and for an-
swering-customer's inquiries concerning the status of their
orders. It was thus important for the bundle count to be
accurate . The purpose of the notebook kept by Maffia
(Resp. Exh. 2) was to give the Respondent a record of orders
in process and a means of giving management the quantity
of goods in production at any given time for any given
order. The number of Respondent's customers during
Maffia's employment increased from four to approximately
eight.
Maffia's final job or function was to keep a record of the
cuttings made each day by the cutters in a notebook called
Bill's book named after President William Gerold. (Resp.
Exh. 3.) Maffia started to keep such a notebook on instruc-
tion from Gerold about a month prior to her discharge. The
primary purpose of that book was to give Gerold a quick
check on whether his cutters were producing the quota of
cuttings per day that he expected them to do. There is no
real evidence or serious claim by Respondent that Maffia
did not keep Bill's book correctly.12 Accordingly it is found
without further discussion that Maffia's keeping of Bill's
book was not a factor in her discharge.
According to Respondent's brief, "The reasons for the
discharge of Maffia were twofold: Maffia's many errors in
connection with the bundle count for the Viva order, and
Maffia's failure to comply with repeated instructions to
maintain her record books (Resp. Exhs. 2 and 3 13 ) in
proper form."
It is apparent from the positions given these two reasons
for Maffia's discharge that Respondent's chief asserted jus-
tification for her discharge was the "many errors" she is
alleged to have made in the bundle counts of knitwear being
manufactured for a customer with the name of Viva. The
term "bundle count" as here used means the number of
garments that could be made up from the bundle of compo-
nent parts of the garment as assembled in a bundle by
Maffia and her assistants and then ticketed with that infor-
mation and with the name of the customer, among other
data. In the case of the Viva order, Gerold had decided to
send the assembled bundles to a subcontractor, Craft Mas-
ters, for sewing into the finished product, because his
Company's own sewing department had more than it could
handle. This decision to subcontract was an innovation in
Respondent's business at that time.
Maffia began a week of earned vacation on Monday, July
26, 1971. For a period of about 5 weeks prior thereto, she
had bundled, with the sporadic assistance of three other
inexperienced employees, component parts of children's
sweaters for the account of Viva, which totally unknown to
her was to be sent, as aforenoted, to Craft Masters for
finishing. Each bundle contained the parts for a dozen or
more sweaters or fractions thereof. Maffia ticketed each
bundle in her own handwriting with the name of the ac-
count, Viva, and the quantity of sweaters in terms of dozens
or fractions thereof the bundle would make up. If a bundle
had been bundled by any of her assistants who helped her
from time to time, Maffia accepted their oral report of the
count in the bundle as a basis for recording on the bundle's
ticket the number of sweaters the bundle would make up.
About 90 percent of the bundling of the Viva order was
done personally by Maffia and the remaining 10 percent by
her occasional assistants.
The Viva bundles were scheduled to be started for ship-
ment to Craft Masters for finishing on the day that Maffia
began her vacation. Gerold testified that on that same day
in preparation for the shipment he made a preliminary
check-count of the pieces in four of the Viva bundles and
found discrepancies between his count in three of the four
bundles and that of the count recorded by Maffia on the
12 The only complaint Gerold had on the way Maffia kept Bill's book is
that the count number of the component parts of a cape in two bundles were
inaccurate , but Gerold admitted that the components of capes are difficult
to count and that for this reason Maffia's errors were understandable and
not cause for blame.
13 Resp . Exh 3 is Bill's book . As noted above, determination has been
made that Maffia 's keeping of Bill's book was not a factor in her discharge
and thus no further comment or discussion thereon is required.
KNITS AND TWEEDS
tickets of the same three bundles. Gerold thereupon as-
signed two employees , Rita Bonanzi and her daughter, Ca-
thy Bonanzi,14 to recount the pieces in the Viva bundles.
Both Gerold and Durchalter testified that Rita and Cathy
Bonanzi found many miscounts in the counts recorded by
Maffia on the tickets of the Viva Bundles. 15 However, the
Respondent did not produce either Rita or Cathy Bonanzi16
to testify directly on the subject and particularly on the
extent of the discrepancies of their counts as against the
counts recorded by Maffia on the tickets of the bundles. As
heretofore noted, about 10 percent of the tickets in Maffia's
handwriting on the Viva bundles reflected the counts based
on piece counts made by Maffia's assistants as reported
orally to her. In view of this, it is impossible on the basis of
the present record to ascribe the asserted miscounts to Maf-
fia as the miscounts could have been either hers or that of
any of her three assistants.
Mildred Buechner, who as above-noted with her daughter
Kathryn Buechner, jointly hired Maffia when she first went
to work for B.K.B.K., Ltd., before Respondent took over
that firm's finishing operations, was a cutter and substitute
supervisor of Respondent's finishing department in
Durchalter's absence, at the time Maffia was fired. Her
credited testimony shows that Maffia was both a good
worker and accurate counter. Asked by me whether in the
recent months prior to Maffia's discharge she had any rea-
son to believe that the lays that she (Mildred Buechner) as
a cutter had cut and turned over to Maffia for bundling
were not correctly counted, she unhesitatingly replied,
"No."
President Gerold testified that he directed Durchalter to
discharge Maffia on July 26 immediately after his own per-
sonal check-count on several of the Viva bundles showed
that the count on the tickets Maffia had placed on the
bundles were not accurate. If Gerold's testimony is cred-
ited,17 that he ordered Maffia's discharge on July 26, he did
so without awaiting the results of the recount he had asked
Rita and Kathy Bonanzi to start that same day on all of the
Viva bundles which took several days. He further testified
he directed Durchalter not to tell Maffia about her dis-
charge until after she returned to the plant from her vaca-
14 Gerold in his testimony did not identify the two Bonanzis by name, but
they are identified in Durchalter 's affidavit (G.C. Exh. 11) by name as shown
above.
is The only other testimony as to the asserted miscounts came from em-
ployees Mildred Buechner and Patricia Penna. Mildred Buechner testified
that Kathy (spelled as "Cathy" in Durchalter's aforementioned affidavit)
Bonanzi called her attention to some of the Viva bundles that had "a differ-
ent count" on their teckets than her own (Kathy's) counts. I do not give any
weight to this hearsay testimony received in evidence without objection in
view of the fact that Mildred Buechner by her own testimony regards Maffia
as a good worker and accurate counter and the further fact that the counts
recorded on the tickets in Maffia 's handwriting could have been that of one
or more of her three assistants as orally reported to Maffia by them for
recording on the tickets.
16 In his oral summation of Respondent 's case at the end of the trial,
Respondent 's counsel stated that Rita Bonanzi was not called as a witness
because she was ill. No medical or other evidence was presented to support
the claim of illness. Respondent 's counsel also stated that Kathy Bonanzi was
not called because she was "not available ." No request was made to me for
the issuance of subpena to require her presence at the trial as a witness for
Respondent.
1 It will be noted below that Gerold's testimony that he decided on
Maffia 's discharge on July 26, 1971, is not credited.
1217
tion on August 2 in order not "to spoil" her vacation. Dur-
chalter testified to the same effect. However, his testimony
is completely contrary to the pretrial affidavit he gave the
Board in the same month that Maffia was discharged and
also contrary to Gerold's testimony that it was he (Gerold)
who ordered Maffia's discharge. In his affidavit, Durchalter
states , "While she [Maffia] was still on vacation, I told Bill
Gerold that I had decided to discharge Maffia." Despite the
testimony of both Gerold and Durchalter that no effort was
made to notify Maffia about her discharge during her week
of vacation in order not to spoil her vacation, Durchalter's
affidavit shows that he tried to reach her to tell her the news
of her discharge during the latter part of her vacation week,
but could not because she had an unlisted telephone. These
serious conflicts between the testimony of Gerold and Dur-
chalter many months after the discharge, on the one hand,
and the statements made by Durchalter in the very month
of Maffia's discharge, on the other hand, adversely affect
the credibility of the testimony by Gerold and Durchalter
that Maffia was discharged for cause rather than for her
alleged union sympathies.
When Maffia returned to work on August 2 she was
discharged by Durchalter for the asserted reasons that she
did not keep her record book (Resp. Exh. 2) correctly and
because of her incorrect counts in the Viva bundles.
As noted above, Respondent's brief indicates that the
second or subsidiary reason for Maffia's discharge was
Gerold's dissatisfaction with the way she kept the major
record notebook, to wit, Respondent's Exhibit 2. Maffia's
credited testimony shows that neither Gerold or Durchalter
at any time prior to her discharge ever complained or crit-
icized her for the way she kept the heretofore described
production notebook. Maffia's undisputed testimony fur-
ther shows that whenever Gerold wanted any information
in the book he would simply ask her for the data he wanted
from the book and that he was always satisfied with the oral
information so received. Gerold's testimony as a whole re-
veals that he was pretty much on top of everything in the
plant from his personal observation of what went on 18 and
that if there were any real discrepancies from what his ob-
servations showed and the oral information Maffia gave
him from her notebook, he would have, spotted them and
called Maffia's attention to them long before her discharge,
but her credited testimony shows that he never at any time
challenged any of the information she gave him from the
book.19
The record shows that the Respondent paid some of its
sewers and its pressers a piece rate on the garments they
processed after the cut pieces of the garment had been
bundled for sewing and ticketed by Maffia to show the
quantity of garments the component parts in each bundle
would make up. If Maffia's counts had been inaccurate, it
is evident that these piece workers would have made bitter
complaints about the miscounts as they were being paid on
18 Respondent 's customers were so few-apparently eight at the maxi-
mum-that Gerold had no difficulty in keeping up on the production for
Res9pondent's customers
Testimony by both Gerold and Durchalter that they expressed criticism
to Maffia of the way she kept the production book (Resp. Exh. 2) is not
credited , as their testimony throughout the proceeding show them to be
unreliable witnesses.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the basis of the number of garments they finished and that
Gerold and Durchalter would have heard about such com-
plaints, but the record utterly fails to show any such com-
plaints.
Maffia's credited and undisputed testimony shows that
the original notebook (Resp . Exh. 2) she kept, had 102
pages . At the time the book was presented in evidence it had
54 pages and did not truly reflect the production notebook
Maffia kept.
Maffia received two wage increases in the 8 -month period
preceding her discharge . The first was on January 9, 1971,
and the second on June 19, 1971, dust about a month prior
to her discharge. As only two or three other employees
received wage raises at the same time , I find that Maffia's
two raises were merit raises based on satisfactory perfor-
mance of her work as bundler , counter, and recordkeeper.
For approximately the past 10 years Maffia has been a
dues-paying member of Local 89, a sister local of Local 107,
the Charging Party herein, both of which are affiliates of the
International Ladies Garment Workers Union , AFL-CIO.
She is a staunch supporter of union shops for garment work-
ers and during the course of her employment with the Re-
spondent and predecessor firm (B.K.B.K.) she has been
outspoken about her prounion feelings and sympathies, not
only to other employees, but also to management personnel.
On several occasions when Maffia expressed her strong
prounion sympathies to Durchalter he tried to hush her up
in her own best interests because as he explained to her
President Gerold "doesn't like unions." On December 10,
1971, feeling "furious" over Gerold's bypassing her on an
across-the-board pay raise everyone else had received and
over Gerold's dismissal of her bitter complaint over this by
his casual brushoff reply that he couldn't give her a raise
every 3 weeks whereas in fact her waiting periods between
raises were ever so much longer, Maffia expressed her re-
sentment over this to Durchalter as follows , "Damn it, if this
was a union shop, this wouldn't have happened . I would
have got a raise with everybody else." This incident oc-
curred at the plant while Durchalter was being introduced
by Gerold to the employees as the new production manager
of the finishing department who would take over on the
following Monday . Durchalter, then not yet even in the
employment of Respondent, admonished Maffia, ".. .
You know you shouldn't say union." Maffia questioned
Durchalter as to how he , as a newcomer to the plant, would
know that the word "union" was a forbidden word at the
plant. Durchalter replied, "This . . . I know. Bill [Gerold]
doesn 't like unions." 20
In the spring of 1971, Durchalter again indirectly cau-
tioned Maffia against bringing up the subject of a union
shop at the plant. The incident occurred when Durchalter
announced to her that he was going to discharge a certain
female employee because she got on his nerves and was too
slow. Maffia told him, "That is a heck of a reason... .
Because , if it [this] was a union shop , you would have to
have a better reason than that to let her go." Durchalter
reproofed Maffia with the warning comment , "Union
20 The foregoing findings are based upon Maffia 's credited testimony.
Durchalter 's denials are not credited As shown above and in a footnote
below, the record shows Durchalter to be a wholly unreliable witness
again?"
Again in the spring of 1971 when the subject of wages was
under discussion by Respondent's sewing department em-
ployees with Durchalter, Maffia brought to the plant and
handed to Durchalter a union announcement of substantial
wage increases and other new valuable benefits her Local
89 and other locals of Greater New York 21 had recently
negotiated with employers. Durchalter's response to this
was, "What are you, crazy? Don't show this to anybody;
take it and put it away." 2
The record shows that Respondent had knowledge of
Maffia's membership in a garment workers union, Local 89,
a sister union of the Charging Party here, from the day she
started employment with Respondent. As heretofore noted
Maffia was originally hired jointly by Mildred and Kathryn
Buechner, foreladies for B.K.B.K., whose finishing opera-
tions were subsequently taken over by Respondent. The
point testimony of Maffia and Mildred Buechner establishes
that Maffia told Mildred on her first day of employment
that she was a member of Local 89. It is not necessary to
attribute this knowledge of Maffia's union membership to
Respondent's President Gerold as he admits receipt of such
knowledge durectly from Maffia in his pretrial affidavit to
the Board wherein he states, "My recollection is that Rose
[Maffia] told me she was a union member when she was first
hired, although she did not tell me or I do not remember
which union she said she was a member of." The record
leaves no doubt that Gerold knew that Maffia was a mem-
ber of a garment workers union even if he did not know or
remember what local it was at the time she was hired to
work in Respondent's plant?3
Similarly from the conversations Maffia had with Dur-
chalter about unions as set forth above, it is found that
Durchalter had knowledge not only of Maffia's member-
ship in Local 89 long prior to her discharge but also of her
very strong prounion sympathies from the talk he had with
her at the plant on the Friday even prior to the Monday in
which he started to work for Respondent as its new produc-
tion manager.
Maffia was the first employee after Jose Nieves to be
contacted by Local 107 to sign a union authorization card.
21 Repondent's plant , which is quite some distance from Greater New
York , does not fall within the geographical jurisdiction of the joint board of
locals which negotiated the above-described collective -bargaining contract.
(G.C Exh. 8)
22 The findings of the above two paragraphs are based upon Maffia's
credited Testimony Durchalter denied looking at the garment workers union
announcement Maffia handed to him and testified that he "took it for grant-
ed it was [from an) embalmer's union," because at various times Maffia had
mentioned to him that her long-deceased father had been an undertaker. I
discredit this testimony by Durchalter as being wholly preposterous . I infer
and find that Durchalter not only read the joint locals' wage increase an-
nouncement Maffia handed to him , but also discussed it with Gerold and
informed him that the document had come to him from Maffia.
23 At first Gerold in his direct testimony denied any knowledge of Maffia's
union membership at the time he decided to fire her until confronted with
the above-quoted admission from his pretrial affidavit . He then sought to
avoid the impact of the admission by claiming that the admission related to
an embalmers union, not to a garment workers union . This is obviously a
preposterous claim . The conflict between Gerold's testimony denying knowl-
edge of Maffia 's membership in a garment workers union at the time of her
discharge and his pretrial affidavit admitting that he had such knoweldge
from Maffia herself on the day she was hired demonstrates the unreliability
of Gerold's testimony and the necessity to discredit it where it conflicts with
General Counsel 's witnesses on essential issues of fact.
KNITS AND TWEEDS
She readily signed such a card at her home on July 21, 1971,
at the solicitation of the aforementioned Union Organizer
MiLazzo. At the end of that workweek on Friday, July 23,
1971, she started her week's vacation. As above noted when
she returned to work on August 2, 1971, she was discharged.
During the week of her vacation, Local 107 was at the height
of its campaign to organize Respondent's plant . On July 30,
1971, while Maffia was still on vacation , the Respondent
.issued its above-described bulletin designed to combat Lo-
cal 107 by offering its employees various benefits to induce
them to refrain from becoming or remaining members of
the Union, and to refrain from giving any assistance or
support to the Union.
It is found from the record as a whole that Gerold did not
determine to discharge Maffia until after he had discovered
that Local 107 was seeking to organize his plant . By his own
admission , Gerold received knowledge of Local 107 's orga-
nizational campaign at least as early as July 27, 1972, the
second day of Maffia's vacation. The next day, July 28,
Gerold consulted an attorney (not counsel representing him
in this proceeding) for advice on the union activity in his
plant. It was only after that that Durchalter, according to
his affidavit, on either July 29 or 30, tried to contact Maffia
by telephone to tell her that she had been discharged.
Gerold's testimony shows that his plant is operated in a tight
labor market . Gerold's asserted chief reason for firing Maf-
fia was her alleged miscounts in the Viva bundles, but if we
are to believe his testimony , he decided to terminate Maffia
on July 26 without awaiting the several days he testified he
had to wait to get the results of a recount of the Viva bundles
he had ordered two other employees to make. Under these
circumstances, I do not credit Gerold's testimony that he
decided to terminate Maffia on July 26. I find and conclude
from all the evidence of record that Gerold decided on
Maffia's termination on either July 29 or 30 when Durchal-
ter unsuccessfully tried to give her notice over the telephone
of her discharge. This was well after Gerold had received
knowledge of Local 107's attempt to organize his plant.
Discussion and Conclusion
More than half of the 1,103-page record herein appears
to be devoted to evidence relating to Maffia's discharge.
From a close scrutiny and study of the entire record as
reflected in the above findings of fact and resolutions of
credibility issues, I find and conclude that Respondent dis-
criminatorily discharged Rose Maffia in violation of Sec-
tion 8(a)(3) and (1) of the Act.
The record as a whole fails to sustain Respondent's de-
fense that Maffia was discharged because of deficiencies in
her recordkeeping (Resp. Exh. 2) and for miscounts of the
Viva sweater bundles. If Maffia's recordkeeping had been
as bad as Respondent contends, the Company would not
have given her the two merit raises she received in the last
7 or 8 months of her employment at its plant and more
especially the merit raise she received in June 1971, only
some 5 weeks before her discharge. Maffia's credited testi-
mony shows that she never received any criticism on her
recordkeeping from either President Gerold or Production
Manager Durchalter during her employment with the Com-
pany. The testimony of Respondent's own witness, Mildred
1219
Buechner, the forelady who had known Maffia from the
time she originally hired her for the predecessor firm B.K.B.
K., Ltd., shows that Maffia had the reputation of being a
good worker.
The record further shows that the production notebook
(Resp. Exh. 2) kept by Maffia was wholly adequate to give
Gerold any information he needed on the state of produc-
tion for any of Respondent's accounts by merely asking
Maffia for an oral report thereon. His testimony shows that
he was much too busy to read the notebook himself. In any
event the notebook contained the basic information re-
quired by Gerold. The abbreviations in the book or the
absence of a color designation in the book as an indication
of a standard white were well known to both Gerold and
Durchalter. The notebook presented into evidence (Resp.
Exh. 2) as the notebook kept by Maffia does not truly reflect
the book kept by Maffia as approximately half the pages in
the book as kept by her are missing. In summary it is found
that the alleged deficiencies in Maffia's recordkeeping was
used by Respondent as a pretextual excuse for her dis-
charge.
While at the trial Respondent appeared to stress Maffia's
alleged poor recordkeeping as the chief reason for her dis-
charge, the Company in its brief gives priority to Maffia's
alleged miscounts of the Viva sweater bundles as the princi-
pal cause for her termination. It is similarly found that
Maffia's bundling counts on the Viva order was not a true
reason for her termination. It is virtually certain that if
Maffia had been given to making serious bundle miscounts,
that fault would have shown up in the year or so she worked
for Respondent and its predecessor firm B.K.B.K., long
before the bundling for the Viva order in the last 5 weeks
of Maffia's employment with the Company. It is significant
that Respondent makes no claim of erroneous bundle
counts by Maffia prior to the Viva bundling. The testimony
of the aforementioned Forelady Mildred Buechner shows
that she had never known Maffia to make any counting
mistakes.
It was noted above that Gerold testified that he ordered
Maffia fired on the first day of her vacation, July 26, 1971,
upon personally discovering a miscount on merely three of
the numerous bundles that had been bundles for Viva over
a period of 5 weeks. This unseemly haste in firing Maffia in
view of the tight labor market Respondent's plant is in and
without awaiting the report of the two employees he as-
signed on July 26 to recount all the Viva bundles is another
indication that the alleged miscounts in the Viva bundlings
was not the real case for Maffia's discharge. The Respon-
dent did not offer the testimony of these two employees to
corroborate Gerold's testimony that there were many mis-
counts in the Viva bundles.
Contrary to Gerold's testimony, it was shown above that
he ordered Maffia's discharge not on July 26, but on either
July 29 or 30, when Durchalter, pursuant to instructions
from Gerold, unsuccessfully tried to notify Maffia by tele-
phone of her discharge. This was after conceded knowledge
by Gerold of information as of July 27 that Local 107 had
begun a vigorous drive to organize his plant and after con-
sultation with his counsel on July 28 as to what he could do
to counter the drive. As shown above, Gerold issued his
bulletin on "Employees Benefits" on July 30, promising
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain benefits, some of which were phantom , for the pur-
pose of aborting the Union 's organizational drive.
I find that Gerold's discharge of Maffia was part of his
counter campaign to abort Local 107's efforts to organize
his plant . Gerold, as shown above, had knowledge of
Maffia's membership in a sister garment workers local from
the very first day of her employment at the plant. The above
findings further show that Supervisor Durchalter had per-
sonal knowledge from Maffia herself of her very strong
prounion sympathies and interests . While there is no evi-
dence that either Gerold or Durchalter had any direct
knowledge that Maffia had signed a card prior to her dis-
charge, the record leaves no doubt that they correctly sur-
mised that she would be in the forefront of any movement
to organize the plant and would be one of the first employ-
ees to sign a union authorization card which in fact was true.
I find and conclude that the Respondent determined to
discharge Maffia during the week she was on vacation for
the purpose of preventing her predictable assistance to Lo-
cal 107 in organizing the plant upon her return to work after
her vacation in the critical week in which Gerold was trying
to stop Local 107 with his "Employees Benefits" bulletin
and with Durchalter's threats of plant closure if the Union
got in.
In summary it is found that the two reasons given for
Maffia's discharge are pretextual and that the real reason
for her discharge was that Respondent believed with cause
that she would join and assist the Union as in fact she did
by signing a union card just 2 days prior to going on her
week 's vacation and accordingly it is found and determined
that she was discriminatorily terminated in violation of Sec-
tion 8(aX3) and (1) of the Act. However, that part of the
complaint which alleges that Maffia was discharged be-
cause she also "engaged in other concerted activity for the
purpose of collective bargaining and mutual aid and protec-
tion" will be dismissed for failure of proof as there is no
evidence that she engaged in such activities in the 2 days she
was at the plant after signing her union card or during the
week she was on vacation before reporting back to work on
August 2, 1971, when she was fired.
Upon the basis of the foregoing findings of fact and upon
the record as a whole , I make the following:
CONCLUSIONS OF LAW
1. Respondent Knits and Tweeds , Inc., is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Local 107, International Ladies Garment Workers
Union, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interfering with , restraining, and coercing its em-
ployees in the exercise of rights guaranteed in Section 7 of
the Act, the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8 (a)(1) of the Act.
4. By discharging Rose Maffia on August 2 , 1971, be-
cause of her suspected support of the Union, the Company
engaged in unfair labor practices affecting commerce within
the meaning of Section 8(a)(3) and ( 1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent engaged in certain
unfair labor practices in violation of Section 8(a)(1) and (3)
of the Act, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the purpose of the Act, including the
offer of reinstatement of Rose Maffia, with backpay com-
puted in the manner set forth in F. W. Woolworth Company,
90 NLRB 289, with interest added thereto in the manner set
forth in Isis Plumbing & Heating Co. 138 NLRB 716.
Because of the character and scope of the unfair labor
practices herein found, it will be recommended that, in or-
der to effectuate the policies of the Act, Respondent shall
cease and desist from in any other manner interfering with,
restraining, and coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act 24
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, the following is the recommended:
ORDER 2s
Respondent Knits and Tweeds, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Inducing its employees by promises or grants of addi-
tional paid holidays, fully paid health insurance, disability
insurance, pension and retirement benefits, and life insur-
ance, to refrain from becoming or remaining members of
Local 107, International Ladies Garment Workers Union,
AFL-CIO, or to refrain from giving assistance or support
to it or any other labor organization.
(b) Threatening its employees with the closing of
Respondent's plant or subcontracting out work, if they be-
come or remain members of the Union, or if they give any
assistance or support to it or any other labor organization.
(c) Discharging or otherwise discriminating against any
employee for supporting the above-named Union, or any
other union.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist
the above-named Union, or any other labor organization, to
bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose
of any and all such activities, except to the extent that such
right may be affected by the provisions in Section 8(a)(3) of
the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the purposes of the Act:
(a) Offer Rose Maffia immediate and full reinstatement
to her former or substantially equivalent position at its plant
in Deer Park, New York, and to make her whole for any loss
24 N L R B v. Entwistle Mfg Co., 120 F.2d 532, 536 (C.A 4, 1941).
25 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
KNITS AND TWEEDS
of earnings she may have suffered by reason of
Respondent's discrimination against her , as set forth in that
section of the Trial Examiner 's Decision entitled "The Rem-
edy.,,
(b) Notify Rose Maffia if presently serving in the Armed
Forces of the United States of her right to full reinstatement
upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all payroll
records and reports and all other records necessary to ana-
lyze and give effect to the backpay requirements hereof.
(d) Post at its plant in Deer Park, New York, copies of
the attached notice marked "Appendix." 26 Copies of said
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by the Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 consec-
utive days thereafter, in conspicuous places , including all
places where notices to employees are customarily posted.
Reasonable 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 29, in writ-
ing, 20 days from the receipt of this Decision, what steps
have been taken to comply herewith 27
The complaint , as amended at the trial , is dismissed inso-
far as it alleges that Respondent engaged in any unfair labor
practices other than those found herein.
26 In the event that the Board 's 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 Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
27 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read : "Notify
the Regional Director for Region 29, in writing, within 20 days from the date
of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer Rose Maffia full reinstatement to her
old job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority
or other rights and privileges, and make her whole for
1221
any loss of earnings she may have suffered as a result
of her discriminatory discharge.
WE WILL NOT induce our employees by promises and
grants of additional paid holidays, fully paid health
insurance, disability insurance, pension and retirement
benefits, and life insurance, to refrain from becoming
or remaining members of Local 107, International La-
dies Garment Workers Union, or to refrain from giving
any assistance or support to it or any other labor orga-
nization.
WE WILL NOT threaten our employees with closing our
plant or subcontracting out work, if they become or
remain members of the above-named Union, or if they
give any assistance or support to it or any other labor
organization.
WE WILL NOT discourage membership in the Union or
any other labor organization, by discouraging or refus-
ing to reinstate any of our employees, or in any other
manner discriminate in regard to hire or tenure of em-
ployment or any other term or condition of employ-
ment.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce any of our employees in the exercise
of their rights to self-organization, to form, join, assist
the aforesaid union, or any other labor organization, to
bargain collectively through representatives of their
own choosing, and to engage in other concerted activi-
ties for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all
such activities, except to the extent that such may be
affected by provisions in Section 8(a)(3) of the Act.
All of our employees have the right to form, join, or assist
any labor union, or not to do so.
KNITS AND TWEEDS, INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individual if
presently serving in the Armed Forces of the United States
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
This is an official notice and must not be defaced by
anyone.
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. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 16 Court Street, 4th Floor, Brook-
lyn, New York 11201, Telephone 212-596-3535.