Multi Color Industries

National Labor Relations Board - Board Decisions

Jun 21, 1995

317 N.L.R.B. 890 (N.L.R.B. 1995)

890
317 NLRB No. 112
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. In this regard the Respondent contends, inter alia, that the
judge improperly credited the testimony of employee Isidro Clara,
with respect to some matters, while discrediting his testimony with
respect to others. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951 ). Further, ‘‘nothing is more common
in all kinds of judicial decisions than to believe some and not all’’
of a witness’ testimony. NLRB v. Universal Camera Corp., 179 F.2d
749, 754 (2d Cir. 1950). We have carefully examined the record and
find no basis for reversing the findings.
2 The Charging Party has excepted to the judge’s failure to provide
for Spanish and Hebrew translations of the notice. The General
Counsel and the Respondent have not opposed this exception. We
find the Charging Party has established sufficient grounds for requir-
ing that the notice be posted in both the English and Spanish lan-
guages. This is not so however, with respect to the Hebrew lan-
guage. The Charging Party merely asserts that 1 employee in the ap-
proximately 40-employee unit comprehends Hebrew only. Accord-
ingly, the administrative law judge’s recommended Order is modi-
fied by requiring that the notice marked ‘‘Appendix’’ be posted at
the Respondent’s premises in both the English and Spanish lan-
guages.
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Multi Color Industries, Inc. and International La-
dies’ Garment Workers’ Union, AFL–CIO.
Cases 29–CA–17333, 29–CA–17443, and 29–CA–
17494
June 21, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On February 1, 1995, Administrative Law Judge
Steven B. Fish issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and
the General Counsel and the Charging Party re-
sponded. The Charging Party also filed limited excep-
tions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order2 as
modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Multi Color Industries,
Inc., Brooklyn, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
Substitute the following for paragraph 2(a).
‘‘Post at its facility in Brooklyn, New York, in both
the English and Spanish languages, copies of the at-
tached notice marked ‘‘Appendix.’’3 Copies of the no-
tice, on forms provided by the Regional Director for
Region 29, after being duly signed by the Respond-
ent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places includ-
ing all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.’’
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT coercively interrogate our employees
about how they intend to vote in a National Labor Re-
lations Board election.
WE WILL NOT threaten our employees with dis-
charge, closing of the plant, or moving our facility if
our employees select the International Ladies’ Garment
Workers Union, AFL–CIO (ILG), or any other labor
organization as their collective-bargaining representa-
tive or because of their activities on behalf of or sup-
port for the ILG.
WE WILL NOT inform our employees that we will
not deal with the ILG.
WE WILL NOT solicit grievances from our employees
with the implied promise of favorably adjusting those
grievances in order to dissuade our employees from
supporting the ILG.
WE WILL NOT promise our employees increases or
improvements in wages, paid holidays, sick days,
health insurance, or other terms and conditions of em-
ployment, in order to induce our employees to refrain
from supporting the ILG or any other labor organiza-
tion or to refrain from voting for the ILG or any other
labor organization.
WE WILL NOT spray our employees with a hose be-
cause of our employees’ support for or activities on
behalf of the ILG or any other labor organization.
WE WILL NOT impose more arduous working condi-
tions on our employees because of our employees’
support for or activities on behalf of the ILG or any
other labor organization.
891MULTI COLOR INDUSTRIES
1 All dates are in 1993 unless otherwise indicated.
2 The errors in the transcript have been noted and corrected. Al-
though Charging Party objected to two of the proposed corrections,
I am satisfied from my examination of the transcript as well as my
notes, that Respondent’s motion is accurate and the transcript should
be corrected as set forth in the motion.
3 Although every apparent or nonapparent conflict in the evidence
may not have been specifically resolved herein, my findings are
based on my examination of the entire record, my observation of the
witnesses’ demeanor while testifying, and my evaluation of the reli-
ability of their testimony. Accordingly, any testimony that is incon-
sistent with or contrary to my findings is hereby discredited.
WE WILL NOT in any like or related manner interfere
with, coerce, or restrain our employees in the exercise
of their rights under Section 7 of the Act.
MULTI COLOR INDUSTRIES, INC.
Sharon Chau and Stephanie Latour, Esqs., for the General
Counsel.
Dorothy Rosenzweig, Esq. (Kaufman, Naness, Schneider &
Rosenzweig, P.C.), of Melville, New York, for the Re-
spondent.
Lori Smith Esq., of New York, New York, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge. Pursuant to
charges filed on May 10, June 23, and July 12, 1993,1 re-
spectively, by International Ladies Garment Workers’ Union
(the Union, ILG, or Charging Party), the Regional Director
for Region 29 issued an order consolidating cases, consoli-
dated complaint, and notice of hearing on August 31 and an
amended consolidated complaint on November 4 (the com-
plaint). The complaint alleges that Multi Color Industries Inc.
(Respondent) violated Section 8(a)(1), (3), and (4) of the
Act, by various actions, including inter alia, imposing more
arduous working conditions on Isidro Clara, Bonifacio Clara,
Victor Gomez, and other employees, and unlawfully dis-
charging Isidro Clara, Bonifacio Clara, Victor Gomez, Sergio
Bedeno, and Jose Edwin Chacon.
Thereafter Respondent filed an answer denying that it vio-
lated the Act.
On the first day of hearing, General Counsel ‘‘due to the
lack of cooperation’’ from various witnesses, withdrew a ma-
jority of the allegations in the complaint, including particu-
larly the allegations concerning the unlawful discharge of
Bonifacio Clara and Victor Gomez.
The hearing with respect to the remaining allegations in
the complaint, which included the unlawful discharge of
Isidro Clara, the imposition of arduous working conditions
on employees, and various 8(a)(1) allegations, was held be-
fore me in Brooklyn, New York, on April 11 and 12, 1994.
Briefs have been filed and have been carefully reviewed.
Based upon the entire record,2 careful consideration of the
briefs, as well as my observation of the demeanor of the wit-
nesses, I make the following3
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent is a New York corporation, with an office and
place of business in Brooklyn, New York (the Brooklyn fa-
cility), where it is engaged in the business of dyeing fabric
for textile companies.
During the past year, Respondent sold and shipped from
the Brooklyn facility, dyed fabrics valued in excess of
$50,000 to enterprises located outside the State of New
York, each of which enterprises, in turn, is directly engaged
in interstate commerce, meeting a Board standard for the as-
sertion of jurisdiction exclusive of indirect inflow or indirect
outflow.
Respondent admits, and I so find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
It is also admitted, and I so find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. FACTS
A. Background and Organizational Activities
On January 18 and March 19, 1990, the ILG filed petitions
in Cases 29–RC–2497 and 29–RC–7571 seeking to represent
certain employees of Respondent. Thereafter pursuant to a
Stipulated Election Agreement executed on April 29, 1993,
an election was conducted on June 3, 1993.
The initial tally of ballots disclosed an indeterminative
election, which resulted in an investigation by the Region of
the challenges, as well as objections filed by Respondent. On
July 29, 1993, the Regional Director issued a report on ob-
jections and challenges, in which he set forth a revised tally
of ballots that revealed that 44 ballots were cast, 18 votes
were for the ILG, 9 were for the Intervenor, United Produc-
tion Workers Union, Local 1718, and the incumbent rep-
resentative of Respondent’s employees. Nine votes there
were cast against the participating labor organizations, and
nine votes were challenged. Thus once again challenges were
determinative. The Regional Director also ordered a hearing
with respect to the challenge to the ballot of Jacob Roth, and
of Respondent’s objections.
In February 1993, the ILG resumed its organizing cam-
paign among Respondent’s employees. The Union placed or-
ganizers at various locations near Respondent’s facility and
distributed leaflets to and spoke with the employees as they
entered and left the premises, or when the employees went
out for lunch.
The Union also held meetings, visited employees, and dis-
tributed authorization cards to employees. In that regard,
Isidro and Bonifacio Clara both signed and distributed ILG
cards to other employees and attempted to persuade such em-
ployees to sign such cards.
In April, five employees of Respondent, including
Bonifacio Clara (Bonifacio) were subpoenaed by the ILG to
appear at and in fact were present at a preelection conference
at the NLRB. Respondent’s President Benjamin Hirsch and
Joseph Lefkowitz its general supervisor both admitted that
they were aware that Bonifacio was present at the conference
pursuant to a subpoena issued by the ILG.
Isidro Clara (Isidro), testified credibly that he met regu-
larly with ILG organizers across the street from the facility
892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in front of a bodega during the weeks prior to the election
on June 3. On one of these occasions, about a week before
the election, during lunch hour, Isidro asserts that he was
speaking to two ILG organizers, Marcelino and Ken. At the
time, according to Isidro, there were no other employees
present, when he observed Hirsch driving his car slowly and
turning to watch Isidro speaking to the organizers.
On another occasion, about 1 or 2 weeks before the elec-
tion, Isidro asserts that after he brought his lunch at the
bodega, he stopped to talk to the ILG organizers for 5 or 6
minutes. At that time he observed Lefkowitz looking at him
and the ILG representatives through the front door of the fac-
tory. When Isidro returned to the facility, Lefkowitz looked
at him, but said nothing.
Isidro also testified to two other instances, where he
claims Supervisors ‘‘Leiby’’ and ‘‘Chan Cha’’ observed him
speaking to union agents, from outside the loading dock and
through the window of the factory respectively. No further
testimony was elicited to further identify or establish the su-
pervisory status of other ‘‘Leiby’’ or ‘‘Chan Cha.’’ The com-
plaint, however, alleges that Zalman Leiby Goldman was a
supervisor and agent of Respondent, which was admitted by
Respondent. The complaint makes no reference to anyone
named ‘‘Chan Cha.’’
Hirsch and Lefkowitz both admit being aware that the ILG
was organizing and that they were distributing leaflets and
talking to its employees on a daily basis. Hirsch admitted
that he observed employees talking to union organizers in
front of the bodega on many occasions, but claims that he
never took note of which employees were involved. Hirsch
also admits that some of these observations took place from
his car while he was driving by. Hirsch didn’t recall whether
he observed either Clara among those employees talking to
union organizers. He denies, however, that he ever slowed
down in his car and looked at the employees talking to union
representatives, or that he ever saw Isidro by himself speak-
ing with union organizers in the street.
Lefkowitz, for his part, admitted that he observed union
leaflets on the union floor of the premises or in possession
of employees, but asserts that he paid no attention to which
employees he saw with the leaflets. Lefkowitz admitted,
however, that he asked some employees, which ones he
could not recall, to explain what the leaflets were. The em-
ployees replied that the leaflets were for the ILG. Lefkowitz
also admitted that at one point during the campaign, Hirsch
told him that ‘‘he would hope that, 1718 is okay with him.’’
Additionally, Lefkowitz testified that he complained to
Hirsch about the fact that Local 1718 representatives were
holding campaign meetings during worktime and interfering
with work. Hirsch instructed Lefkowitz to allow the Local
1718 representatives to campaign during work, and not to
stop them from coming in.
B. The Preelection Meeting
Approximately 2 weeks before the election, Hirsch, ac-
companied by a female translator came into the pulling de-
partment, and spoke to the employees therein, which in-
cluded the Clara brothers. Hirsch, through the interpreter,
asked the employees ‘‘what was wrong at the department.’’
Bonifacio responded with several complaints, including prob-
lems with the floor, size of the fabrics, and temperature.
Hirsch replied that he could not fix the problems because Re-
spondent would be moving to a different site. Hirsch added,
however, that he would continue to make the interpreter
available to employees, so that employees could tell the in-
terpreter if there were any problems, which would then be
relayed to Hirsch, ‘‘so that would be fixed and so that we
would be more in touch with the work.’’
Isidro testified, without contradiction, that he had never
heard Hirsch ask any employees about their problems at
work, prior to this meeting described above. Respondent ad-
duced no evidence that it ever made such inquiries of its em-
ployees on any prior occasions.
About a week before the election, all of the 40 or so bar-
gaining unit employees met with Local 1718 representatives
on the second floor of the facility. After the meeting Hirsch
came in, and through the same female interpreter instructed
the employees to remain for a meeting with him. Once again,
Hirsch spoke through the interpreter. Also present were
Lefkowitz, ‘‘Leiby,’’ and ‘‘Chan Cha.’’
Hirsch told the employees about the upcoming election be-
tween the ILG, Local 1718 and Respondent, and added that
employees should vote ‘‘for him.’’ Hirsch added that he
didn’t want any of the unions, and if the employees agreed
with him, he could give them better benefits, such as holiday
pay, sick days, and family health insurance. Hirsch also stat-
ed that the ILG was not good, he didn’t want it there, and
if the ILG won, he was not going to sit down and negotiate
with them or deal with them. Additionally, Hirsch asserted
that if the ILG won, the employees were going to go on
strike because he was not going to deal with them and that
he could fire employees and hire new people. Finally he stat-
ed that the employees would not have work, the ILG was not
going to pay them, and that he was going to open at a dif-
ferent site with new workers. One of the employees asked
Hirsch to put his promises in writing. Hirsch responded that
he could not give employees anything in writing until after
the election.
Then, 2 days before the election, Hirsch called another
meeting of all unit employees, this time on the first floor. On
this occasion Hirsch brought along a male friend, who acted
as interpreter. Hirsch, once again speaking through the inter-
preter, reminded employees that the election was near, and
that he wanted to remind the employees of what he said at
the previous meeting about not wanting the ILG. Hirsch
asked the employees how they were going to vote, and
whether they were going to vote for him or for Local 1718
or the ILG. Some of the employees responded that they were
going to vote for the ILG, others for Local 1718, and some
for Respondent. Most of the employees who responded, stat-
ed that they were going to vote for the ILG.
Hirsch then told employees that if they voted for him, he
was going to give them a raise and better benefits. If the em-
ployees voted for the ILG, and the ILG won, Hirsch stated
that he would rather close down the factory and not deal
with the ILG.
The interpreter at that point informed the employees that
Hirsch was right in what he was saying, since the ILG had
won an election at his shop, and because of the ILG’s de-
mands, he had to close his business and move to New Jersey.
The interpreter added that Hirsch had brought him to the fac-
tory so he would talk to the employees so they would vote
for Hirsch. He gave the employees 5 minutes to talk among
themselves and gave Hirsch addresses. After discussing Re-
893MULTI COLOR INDUSTRIES
4 The correct name of this employee is Jesus Gonzalez.
spondent’s proposal, an employee again asked Respondent to
put its promises in writing. Hirsch replied that he could not
do so because the election was very near, but maybe he
would give it to the employees in writing after the election.
The above description of events, with respect to the three
meetings is based on the credible, undenied testimony of
Isidro Clara, corroborated in part by employee Estafance
Zarate. Although the record does contain some minor con-
tradictions between Isidro’s direct testimony and cross-exam-
ination, and some of his testimony differed in some respects
from or was not referred to in his affidavit, I found him to
be credible in his recounting of these events, particularly be-
cause he was corroborated by Zarate in part. More impor-
tantly, while Hirsch and Lefkowitz (who was not present at
one of meetings) testified on other matters, they furnished no
testimony as to these meetings, and did not deny any of the
statements attributed to Hirsch by the employees. Nor did
Respondent present any other witnesses or evidence to refute
the employees’ accounts of the meetings that I have detailed
above.
C. The Alleged More Onerous Working Conditions
Immediately after the election on June 3, Respondent by
Lefkowitz assigned the five employees in the pulling depart-
ment, which included the Clara brothers, more work to do
in the same period of time. Thus prior to the election, the
employees were required to load their machines three or four
times a day. After the election however, their work load in-
creased to five or six times a day during the same work
hours. Additionally, Lefkowitz, after the election would stand
over the workers more frequently than he had prior to the
election, and would scream at them to work fast, without
giving them any rest. Although Lefkowitz had in the past
screamed at employees or stood over them, he did so more
frequently after the election (once an hour as opposed to
once or twice a day). Moreover, in the 1- or 2-week period
immediately before the election, Lefkowitz didn’t yell at or
stand over the employees at all. In fact, a week before the
election, Hirsch bought donuts for all the workers, for the
first and only time during Isidro’s tenure as an employee of
Respondent. The above description of events with respect to
the treatment of employees before and after the election is
based on the credible, undenied, and uncontradicted testi-
mony of Isidro.
D. The Alleged Threat to Discharge
On June 9 the Clara brothers were having lunch with an
employee known as ‘‘Baldorama,’’4 who works in another
department under Lefkowitz’s supervision. After lunch ended
Baldorama returned to work. At that point Lefkowitz ap-
proached the Clara brothers and said that Baldorama was
only going to have 2 more weeks of work because he was
with the ILG, and that Lefkowitz wanted to know if the ILG
would give Baldorama a job, or if they were going to see
Baldorama at the corner with the Union. These remarks were
made to the Claras by Lefkowitz in a combination of English
and Spanish, but mostly in Spanish, which Isidro was able
to understand.
Although Lefkowitz did deny this conversation, I credit
Isidro’s testimony in this regard as outlined above, particu-
larly because the remarks were similar in tone and substance
to Hirsch’s statements to employees at the preelection meet-
ings.
E. The Alleged Assault
On June 9, between 11 a.m. and 1:30 a.m., the machine
that Isidro was about to enter was filled with white fabric.
In such circumstances, employees normally clean themselves
and their boots with a water hose, so as not to dirty the fab-
ric when the employees handle the material. Accordingly,
Isidro was washing off his boots with a hose when Hirsch
came over and told Isidro to hurry up, and while clapping
his hands said, ‘‘Let’s go, let’s go.’’ When Isidro continued
to wash his boots, Hirsch grabbed the hose from Isidro, and
sprayed Isidro’s entire body, including his boots with the
water. Hirsch laughed and left the area. Although Hirsch de-
nied that he ever directed a water hose at Isidro, I credit
Isidro’s testimony, as related above, as I find it unlikely that
Isidro would make up such an incident.
F. The Alleged Unlawful Discharge of Isidro Clara
On June 9, at around 12 noon, Isidro, Bonifacio, Victor
Gomez, and two other workers in the pulling department, de-
cided that they were tired and wanted to leave early at 8 a.m.
The employees designated Bonifacio as a spokesperson to
make such a request of Lefkowitz on their behalf. Bonifacio
consequently informed Lefkowitz that the employees were
tired and had worked a lot, and wanted permission to leave
at 8 p.m. Lefkowitz replied that he would think it over.
About 2 hours later, Lefkowitz returned and told the em-
ployees that they could not leave until all the machines were
done, which would be at 11 p.m. or midnight. Bonifacio then
asked Lefkowitz if the employees could receive some extra
pay or some food, since other workers in the painting depart-
ment had allegedly received such payments. Lefkowitz re-
sponded that he would not pay any extra money and he de-
nied that Respondent paid any extra money to the painters.
At around 4 p.m. Isidro was inside one of the machines.
His job at that time was to hand the wet bags of fabric to
another employee standing outside the machine, who would
then load the bags onto a cart to be brought to the drying
area. Bonifacio Clara was outside the machine at the time.
The record is unclear whether Victor Gomez was inside or
outside the machine. The other two employees were working
at another machine.
According to Isidro, he, Bonifacio, and Gomez were wait-
ing, as per Respondent’s normal procedure for the water to
drain before unloading the fabric. Isidro asserts that
Lefkowitz came over to the machine and told the employees
partly in English and partly in Spanish to hurry up using the
Spanish word, ‘‘Avansa.’’ Isidro asserts that Bonifacio told
Lefkowitz in English, which was allegedly translated to
Isidro by Bonifacio, that the employees were waiting for the
water to drain. Lefkowitz replied in English (again translated
by Bonifacio) that he wanted to load more fabric into the
machine, and ordered Isidro to give him the bags of fabric.
Isidro complied with this request, but as he was doing so,
Isidro asserts that Bonifacio noticed that Isidro was getting
wet with hot water. Therefore, Isidro claims that Bonifacio
894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Isidro did testify, however, that Hirsch was speaking in a loud
voice.
6 Lefkowitz was not sure if he actually punched the cards of the
employees or not.
told him not to continue to pass out the bags, and to wait
until the water was out because Isidro was going to burn.
Lefkowitz then, according to Isidro, said through Bonifacio,
that if the employees did not want to work, to go home.
Isidro recalled Lefkowitz saying in English the words, ‘‘get
out of here, go home.’’ At that point Isidro testified that
Lefkowitz asked him, through Bonifacio to hand up the bags
but that Isidro, again through Bonifacio, responded that he
was waiting for the water to come out because he was get-
ting burned. Lefkowitz allegedly responded again, through
Bonifacio, that if he didn’t want to work, he could go home.
Gomez also, according to Isidro, told Lefkowitz he didn’t
want to get burned because the water was too hot.
Isidro also asserts (for the first time on recross) that
Lefkowitz, again through the translation of Bonifacio, told
the employees to go home and that ‘‘there was no more
work for us.’’ Isidro then contends that Bonifacio, speaking
on behalf of the employees told Lefkowitz in English (and
translated to the employees), ‘‘[O]kay Joseph, we’re going
home, but we’re not leaving our jobs. You are firing us, so
you have to punch our cards.’’ Isidro adds that Lefkowitz re-
plied, ‘‘Okay its no problem, I’m going to punch out your
cards.’’ According to Isidro, Lefkowitz then punched the
timecard of Gomez, and the Clara brothers and the three of
them left, after being escorted out by Lefkowitz. The remain-
ing two employees in the department continued to work on
another machine.
After the employees left Respondent’s premises on June 9,
Isidro asserts that they proceeded to the ILG office and ex-
plained to the ILG organizers what had happened. The orga-
nizers instructed the employees to report for work together
the next day.
Therefore, on June 10, Isidro claims that the three employ-
ees met outside the plant, and arrived together at about 8
a.m. He assserts that as they walked into the facility, they
were approached by Lefkowitz. Bonifacio spoke to Lefko-
witz and translated the conversation for Isidro and Gomez.
According to Isidro, Bonifacio told them that he had asked
Lefkowitz if there was going to be work for the employees.
Lefkowitz allegedly replied that Gomez couldn’t work there
anymore, but there might be work for the Claras who would
have to wait and speak to Hirsch about it when Hirsch ar-
rived.
The employees then left, and according to Isidro waited
outside on the corner for 2 hours, until they saw Hirsch ar-
rive. Isidro contends that the three employees approached
Hirsch as he was walking up the stairs to his office. Once
again, Isidro’s version of the alleged conversation is based
solely on Bonifacio’s alleged translation to him.5 Isidro as-
serts that Bonifacio told him that Bonifacio had asked Hirsch
if the employees were going to ‘‘get our jobs.’’ Hirsch alleg-
edly asked why Bonifacio had told Lefkowitz to punch the
employees’ cards, and Bonifacio allegedly replied that
Lefkowitz had fired the workers and told them there was no
more work for them. Hirsch responded, according to
Bonifacio’s translation that Lefkowitz had the right to do
whatever he wanted because the employees were to blame.
Hirsch made some more comments, which Bonifacio didn’t
translate. Bonifacio then allegedly told Hirsch that if he was
not going to give them their jobs back, to give them their
checks. Isidro adds that Hirsch then went upstairs, and re-
turned with checks for all three employees. Hirsch told
Bonifacio to ‘‘be careful’’ about what they were going to do
and the employees left.
Neither Bonifacio Clara nor Gomez testified. Indeed, as
noted, they were both alleged as discriminatees in the com-
plaint, but the allegations pertaining to their discharges were
withdrawn, due to ‘‘lack of cooperation.’’
Lefkowitz and Hirsch both testified on behalf of Respond-
ent, and in most significant areas their versions of the rel-
evant events are corroborative of each other. Thus, Lefkowitz
asserts that when he approached the machine on June 9, the
Claras and Gomez were not working, and were standing
around and talking. Lefkowitz claims that he told them to
hurry up, ‘‘let’s go,’’ and that Respondent had work to get
out. The employees did not budge and continued to talk.
At that point Lefkowitz said, ‘‘Let’s go, I will give you
a hand.’’ Lefkowitz then directed Isidro to hand him the bags
of fabric from inside the machine. Isidro began to pass the
bags out to Lefkowitz who in turn placed them in the basket.
Bonifacio complained that there was still water coming out.
Lefkowitz claims that he looked and saw only some water
dripping on the bottom, which was a normal thing, and said,
‘‘Don’t tell me any stories, let’s go.’’ As Isidro was continu-
ing to pass out the bags to Lefkowitz, Bonifacio said that the
employees were leaving and were going home. According to
Lefkowitz, Gomez and the Claras spoke among themselves
in Spanish, and he heard them cursing and saying in Spanish
that they were leaving. Bonifacio then informed Lefkowitz in
English that the employees were going home, and said,
‘‘let’s go we’re leaving.’’
Lefkowitz admits that he was outraged at Bonifacio’s an-
nouncement that they were leaving, but he states that he did
not want to beg them to stay because he would lose his
power as a manager. Therefore he responded that if the em-
ployees wanted to leave or go home, they could leave right
now. Lefkowitz would get someone else to do the job.
Bonifacio then asked Lefkowitz to punch the timecards, and
Lefkowitz responded, ‘‘[I]f that’s what you want, I will do
it.’’6 Gomez and the Claras were then escorted out of the
building by Lefkowitz. Lefkowitz adds that he told them, ‘‘If
you want to go, let’s go, don’t wait over here and keep on
talking. If you want to go home, you can go home right
now.’’ Bonifacio replied, ‘‘Fine, no problem, we are going
home.’’
Lefkowitz testified further that he, along with the remain-
ing employees, finished up the work on the machine. Some-
time later that evening, Lefkowitz informed Hirsch about the
incident, and claims that he told Hirsch that the three em-
ployees had refused to work and had gone home, and that
although he was outraged by this action, he wouldn’t beg
them to stay. They didn’t discuss what disciplinary action, if
anything, Respondent would take against the employees for
the conduct. Hirsch essentially corroborated Lefkowitz’ ver-
sion of their conversation on June 9, except that Hirsch re-
called that Lefkowitz informed him that the employees had
895MULTI COLOR INDUSTRIES
7 Lefkowitz denied that employees made any complaints about
water being too hot.
8 Hirsch confirmed Lefkowitz’ testimony that had the employees
come and spoken to him, he would have allowed them to keep their
jobs.
9 It is clear and not disputed by Respondent, that the interpreters
at all the meetings were speaking on behalf of and acting as agents
for Respondent. Charles G. Watts, Inc., 300 NLRB 914, 917 (1990).
complained that the water in the machine was too hot.7 Both
Hirsch and Lefkowitz testified that they expected the em-
ployees to come into work the next day.
On June 10, according to Lefkowitz the three employees
arrived together a few minutes after 8 a.m. At that point, he
still had not made up his mind whether or not to discipline
any of them. When he saw them, Bonifacio asked if the em-
ployees could go back to work. Lefkowitz asserts that he
then made up his mind that since Gomez was a new em-
ployee, having worked there only 3 weeks, he would be
fired. Lefkowitz claims that he had to do something for his
prestige, so that employees would not ‘‘do it to me every
day.’’ As for the Claras, he told them to wait and speak to
Hirsch when Hirsch arrives. Lefkowitz states that the Claras
were both good workers and he wanted to give them another
chance. The purpose of having the employees talk to Hirsch
was for Hirsch to speak to them, perhaps give them a warn-
ing, and they would be allowed to return to work. Although
Lefkowitz had not told Hirsch that the Claras would be in-
structed to speak with him, the normal practice in these situ-
ations would entail Hirsch calling Lefkowitz into the office
and they would discuss the matter.
Lefkowitz also asserts that Hirsch was familiar with the in-
cident, as he had discussed it with Hirsch the day before.8
Lefkowitz asserts further that after he told the Claras to
speak with Hirsch and that Gomez was fired, Bonifacio Clara
stated that if Lefkowitz was not taking back Gomez, all of
the employees were leaving. Lefkowitz replied, ‘‘[I]f that’s
what you want, do as you wish.’’ Bonifacio responded,
‘‘Okay, we are leaving,’’ and all three employees left the
premises.
Later on that morning, Lefkowitz testified that he spoke to
Hirsch, and informed him of what happened earlier with re-
spect to the three employees. Lefkowitz did not recall wheth-
er the conversation with Hirsch was in person or by phone.
Lefkowitz adds that Hirsch comes and goes, and he wasn’t
sure if Hirsch was at the facility on that day.
Hirsch confirmed that Lefkowitz informed him of the de-
velopments on June 10, and corroborated Lefkowitz, that
Lefkowitz informed him that the Claras had walked out when
Gomez was fired, rather than speak with Hirsch, as
Lefkowitz had suggested. Hirsch also emphatically denies
having any conversation with the employees on June 10 or
any other subsequent day. Hirsch admits that the employees
did receive their final paychecks, which he signed, but he did
not recall when or how the employees received their checks.
Normally, according to Hirsch, office workers distribute
checks to employees.
Lefkowitz recalled seeing the three employees in the after-
noon of June 10, coming down the stairs from the office
areas where the secretaries were stationed, which also in-
cludes Hirsch’s office. Lefkowitz did not see or hear any
conversations between the employees and anyone from Re-
spondent.
III. ANALYSIS
A. Alleged Unlawful Threats
The record revealed several instances of unlawful threats
by Respondent’s representatives and agents.
They include Hirsch’s statements, through interpreters at
two preelection meetings, that if the ILG won the election,
he would not sit down and negotiate with them or deal with
them. These remarks are threats of futility and that Respond-
ent would not bargain in good faith with the ILG in violation
of Section 8(a)(1) of the Act.9 Treanor Moving & Storage
Co., 311 NLRB 371, 373 (1993). Overnite Transportation
Co., 296 NLRB 669, 671 (1989), enfd. 938 F.2d 815 (7th
Cir. 1991).
Additionally, Hirsch also communicated to employees that
if the ILG won, the employees would go on strike, because
he was not going to deal with them, and he could fire em-
ployees and hire new people. Hirsch also told them that if
the ILG won he was going to open at a different site with
new workers and or that he would rather close down the fac-
tory and not deal with the ILG. These constitute clear threats
of plant closure and moving the plant that are violative of
the Act. I so find. DTR Industries, 311 NLRB 833, 834
(1993); LRM Packaging, 308 NLRB 829, 832, (1992);
Baddour, Inc., 303 NLRB 275 (1991).
Similarly, at the meeting 2 days before the election, Hirsch
used as an interpreter, a friend of his, who apparently was
also an owner of a factory. After translating Hirsch’s unlaw-
ful threats to close if the ILG won, the interpreter reinforced
Hirsch’s remarks, by informing the employees that Hirsch
was right in what he was saying, since the ILG won an elec-
tion at his (the interpreter’s) shop, and he had to close his
business and move to New Jersey because of the ILG’s de-
mands. This comment by the interpreter, although referring
to his own shop, in the circumstances herein, can only be
construed as a further unlawful threat by Respondent that its
employees would suffer the same fate if they voted for the
ILG, and is further violative of Section 8(a)(1) of the Act.
I further have found above that Lefkowitz informed the
Claras that fellow employees Baldorama was only going to
have 2 more weeks of work because he was with the ILG,
and that Lefkowitz wanted to know if the ILG would give
Baldorama a job. I conclude that these statements are unlaw-
ful threats of discharge and thereby also in violation of Sec-
tion 8(a)(1) of the Act. Minnesota Boxed Meat, 282 NLRB
1208, 1215 (1987).
B. Alleged Solicitation of Grievances and
Promises of Benefit
When, as here, an employer, who had not previously had
a practice of soliciting employee grievances or complaints,
adopts such a course in the midst of an organizational cam-
paign, a compelling inference exists that he is implicitly
promising to correct those inequities that he discovers as a
result of his inquiries, and to convince employees that the
combined program of inquiry and correction will make union
representation unnecessary. DTR Industries, supra at 834;
Heartland of Lansing Home, 307 NLRB 152, 156 (1992);
896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Note that Isidro testified without contradiction that this was the
first time that he had ever been present at such a meeting. 11 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981).
Windsor Industries, 265 NLRB 1009, 1016, 1017 (1982),
enfd. in pertinent part 730 F.2d 860, 864 (2d Cir. 1984).
Although in certain situations the inference of an implied
promise to correct the problems that the employer discovers
as a result of such inquiries, can be rebutted, Uarco Inc., 216
NLRB 1–3 (1974), I find insufficient evidence here to rebut
such an inference.
Thus, the Respondent held a meeting in the midst of an
organizational campaign, in which it solicited employee com-
plaints, without presenting any evidence that it had ever held
such meetings in the past. Wellstream Corp., 313 NLRB 698,
712 (1994); Houston County Electric Cooperative, 247
NLRB 579, 585 (1980); First Data Resources, Inc., 241
NLRB 713, 723 (1974).10
Alhough Hirsch, after listening to the complaints of em-
ployees, stated that he could not fix the problems because
Respondent would be moving to a different site, these com-
ments are insufficient to rebut the inference of implied cor-
rection, in view of his subsequent remarks. Thus, Hirsch in-
formed the employees that he would continue to make the
interpreter available to employees, so that employee prob-
lems would be relayed to Hirsch, ‘‘so that would be fixed
and so that we would be more in touch with the work.’’
These latter statements of Hirsch, in my view, reaffirms the
inference of an implicit promise to correct the inequities that
employees present, so that union representation would be un-
necessary, and I therefore conclude that Respondent has vio-
lated Section 8(a)(1) of he Act by soliciting grievances from
its employees. DTR Industries, supra; Wellstream, supra;
Windsor, supra; See also Escada (USA), Inc., 304 NLRB
845, 850 (1991).
I have also found above that Hirsch, through the inter-
preters at both preelection meetings made specific promises
to employees of better benefits, paid holidays, sick days,
family health insurance, and/or a raise, if they voted for Re-
spondent in the upcoming election. Such conduct constitutes
blatant violations of Section 8(a)(1) of the Act, and I so find.
Gardner Engineering, 313 NLRB 755, 764–765 (1994);
Pembrook Management, 296 NLRB 1226, 1240 (1989).
C. Alleged Unlawful Interrogation
At the meeting 2 days prior to the election, Hirsch again
through an interpreter asked employees how they were going
to vote in the upcoming election, and whether they were
going to vote for him, Local 1718 or the ILG. Although
some of the employees did respond honestly to these inquir-
ies, I nonetheless conclude that under the standards of
Rossmore House, 269 NLRB 1176, 1177 (1984), that Re-
spondent’s questioning was clearly coercive. Thus, questions
were asked by the highest official of Respondent, and were
accompanied by and made in the context of numerous other
unfair labor practices, as set forth above, such as threats and
promises of benefits.
Accordingly, I conclude that Respondent has unlawfully
interrogated its employees in violation of Section 8(a)(1) of
the Act. Three Sisters Sportswear Co., 312 NLRB 853, 866
(1993); Fiber Glass Systems, 298 NLRB 504, 505 (1990).
D. The Alleged Imposition of More Onerous
Working Conditions
Immediately after the election of June 3, which as noted
above, although inconclusive, revealed a plurality of votes
counted to have been case for the ILG, Respondent’s meth-
ods of supervision and work assignments were changed in
the pulling department. Thus employees in that department
were required to load their machines five or six times a day,
rather than three or four times as prior to the election during
the same work hours. Additionally, Lefkowitz, the depart-
ment supervisor, would stand over and watch the workers
more frequently after the election than he did prior thereto,
and would scream at them on a more frequent basis without
giving them any rest.
Although Lefkowitz would scream at employees before the
election, after the election he would do so on the average of
once an hour, rather than once or twice a day. Moreover, in
the 1- or 2-week period prior to the election, Lefkowitz did
not yell at the employees at all. In fact in the week before
the election, Respondent supplied free donuts to employees.
In analyzing the above-described charges under Wright
Line11 standards, I conclude that General Counsel has estab-
lished that motivating factor in Respondent’s conduct in this
regard was protected conduct of its employees. Thus, as
noted, the election had just been conducted in which a num-
ber of employees voted for the ILG.
The five employee pulling department contained the two
Clara brothers, who were leading ILG adherents, which I
find was known to Respondent. The Claras were both
cardsigners and solicitors of other employees to sign cards
for the ILG. Bonifacio Clara was one of five of Respond-
ent’s employees who were subpoenaed by the ILG to attend
a preelection conference at the Regional Office. Respondent
admitted being aware of Bonifacio’s presence at the Region
in that role, which I conclude lead Respondent to believe that
Bonifacio was a prominent ILG supporter. Because Isidro
was Bonifacio’s brother, and his coworker in the department,
it is reasonable to conclude, which I do, that Respondent be-
lieved that Isidro was an ILG supporter as well.
Even apart from his familial relationship with an open ILG
supporter, Isidro was seen on a number of occasions speak-
ing to the ILG organizers outside the plant, by both Hirsch
and Lefkowitz. In this regard I credit Isidro’s testimony that
a week before the election, while he was the only employee
speaking to two ILG organizers, Hirsch drove his car slowly
by them, and turned to look at Isidro speaking to the ILG
organizers. While Hirsch admits that from time to time he
would observe employees speaking to ILG organizers on the
street, sometimes, even from his car, he denies slowing down
to look at such conduct, denies that he ever took note of
which employees were there, and denies that he ever saw
Isidro Clara by himself talking to ILG representatives. I find
Hirsch’s testimony in this regard to be unconvincing. His
purported disinterest in organizing activities is not believable,
particularly in view of his intense hostility towards the ILG,
as expressed in his statements made to employees in viola-
tion of Section 8(a)(1) of the Act, as detailed above.
Similarly, I also find Lefkowitz’ preported denials of any
general interest in organizing activities or specific knowledge
of Isidro’s ILG activities to be equally unconvincing. There-
897MULTI COLOR INDUSTRIES
fore I also credit Isidro’s testimony that Lefkowitz observed
him speaking to ILG organizers on the street for 5 or 6 min-
utes.
Lefkowitz denied that he observed any employees talking
to ILG organizers on the street, which I find highly unlikely
because even Hirsch admitted that he observed such activi-
ties. Moreover, Lefkowitz did admit that he asked employees
about the ILG leaflets. Finally I again rely on the animus
displayed by Respondent in its comments to employees.
Therefore I conclude that Respondent was aware that at least
40 percent of the employees in the pulling department, i.e.,
the Clara brothers, were ILG supporters.
Inasmuch as the changes were effectuated immediately
after the election which revealed 18 votes for the ILG, plus
a strong possibility of a runoff election, the timing of Re-
spondent’s actions was quite suspicious. Considering such
timing, along with the significant anti-ILG animus as dis-
closed by the above unfair labor practices, and the knowl-
edge by Respondent that a substantial portion of the depart-
ment were ILG supporters, raises a strong inference that Re-
spondent’s actions were motivated by its employees’ ILG ac-
tivities.
Under Wright Line, supra, the burden then shifts to Re-
spondent to establish by preponderance of the evidence, that
it would have taken the same action, absent the employees’
protected conduct. Respondent has fallen far short of meeting
its burden in that regard. Indeed Respondent’s only evidence
in connection with these issues was Lefkowitz’ general testi-
mony that the busy season begins around the end of March,
and that work changes ‘‘weekly, daily and monthly,’’ Such
testimony, not supported by any records or other documents,
is hardly sufficient to explain the sudden and significant in-
crease in work assignments and pressure on the employee
immediately after the election.
Accordingly, I conclude that Respondent has violated Sec-
tion 8(a)(1) and (3) of the Act, by its imposition of more ar-
duous conditions on its pulling department employees, such
as increasing work assignments, closer supervision, and more
frequent verbal abuse of its employees, in retaliation for their
activities on behalf of the ILG. Three Sisters, supra at 875
(employee Charleston); supra at 872 (employee Galarza);
supra at 870 (employee Nieves); Heartland Nursing, supra;
Adscon, Inc., 290 NLRB 501, 517 (1988).
E. The Alleged Unlawful Assault
The complaint alleges and General Counsel contends that
Respondent physically assaulted its employee, Isidro Clara,
in retaliation for his ILG activities. The incident complained
of relates to Isidro’s testimony that Hirsch, on June 9,
sprayed him with a hose, laughed, and walked away. I credit
Isidro about this event over Hirsch’s denial, as I conclude
that it is not likely that such testimony would be made up.
I also conclude in agreement with General Counsel and
Charging Party, that the evidence is sufficient to establish
that Hirsch engaged in such conduct because of Isidro’s ILG
support and activities. I note particularly my findings above
that Respondent violated the Act by imposing more arduous
working conditions upon employees in the pulling depart-
ment including Isidro, which I have found was primarily mo-
tivated by the ILG activities of Isidro and Bonifacio Clara.
In view of this finding, as well as the other unfair labor prac-
tices committed by Respondent, it is reasonable to conclude,
which I do that Hirsch’s actions on June 9, of spraying Isidro
with the hose was similarly motivated.
I have considered the fact that Isidro normally hoses him-
self off and was in fact in the process of doing so, when
Hirsch grabbed the hose away from and sprayed him with it
all over his body. Because it is undisputed that neither
Hirsch nor any other official of Respondent had ever hosed
an employee off before, however, and Hirsch accompanied
this instance with laughter, I can only conclude that Hirsch’s
action was meant to humiliate Isidro in retaliation for his
protected conduct.
It is also not significant whether or not Hirsch’s’ action
meets the legal definition of an ‘‘assault.’’ It is sufficient to
conclude, which do, that such conduct was coercive and
interferes with employees’ Section 7 rights, and was moti-
vated by Isidro’s ILG support and activities. Refuse Compac-
tor Service, 311 NLRB 12, 19 (1993). Therefore I find that
Respondent has violated Section 8(a)(1) of the Act by
Hirsch’s actions in spraying Isidro with a hose on June 9.
Refuse Compactor Romar Refuse Removal, 314 NLRB 658,
670–671 (1994); Kenrich Petrochemicals, 294 NLRB 519,
534–535 (1989).
F. The Alleged Unlawful Discharge of Isidro Clara
Bearing in mind that General Counsel has the obligation
to establish by a preponderance of credible probative, and
competent evidence the allegations of the complaint, I cannot
conclude that General Counsel has presented such evidence
sufficient to meet its burden of proving this allegation.
More particularly, the sole witness called by General
Counsel with respect to Isidro’s alleged discharge was Isidro
Clara himself. Unfortunately for General Counsel, Isidro
does not speak English, and his testimony concerning the
statements allegedly made to him, Bonifacio, and Gomez by
Hirsch and Lefkowik on June 9 and 10 is derived primarily
from Bonifacio’s alleged translation to him of the remarks of
Respondent’s officials. I agree with Respondent that Isidro’s
testimony in this regard is hearsay, which in my judgment
is insufficient evidence to meet General Counsel’s burden of
proof.
Charging Party contends that such testimony is not hear-
say, because Bonifacio should be considered an agent of Re-
spondent, for the purposes of communications between
Bonfacio and Isidro. Midessa Construction Co., 290 NLRB
269, 277 (1988). I do not agree. In Midessa, supra, testimony
was adduced from two employees concerning a conversation
with a supervisor, during which one employee translated a
request for reinstatement to the employer for the other em-
ployee (as well as making a similar request on his own be-
half, plus the latter employees’ response. The administrative
law judge found that because the evidence disclosed that the
employer therein regularly communicated with its employees
using the services of bilingual coworkers, that the employee-
interpreter was the employer’s agent for the communications
involved, and the testimony of the other employee about
what the interpreter told him was not hearsay.
The instant case, however, is clearly distinguishable. Ini-
tially there is no record evidence that Respondent employed
a regular practice of communicating with the its employees
through bilingual coworkers. More importantly, in Midessan,
supra, unlike here, both employees testified, so nonhearsay
testimony, which incidentally was not contradicted by the su-
898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 I note that Hirsch corroborated Lefkovitz’ testimony that had the
Claras spoken to him, he would have allowed them to return to
work.
pervisor, was presented. Thus, the testimony of the non-
English speaking employed was unnecessary and superfluous.
Here Bonifacio, the employee who translated for Isidro,
was not called as a witness, and contradictory testimony was
offered by Respondent’s officials to Isidro’s version of their
alleged conversations. In these circumstances I can not agree
with Charging Party’s assertion that Bonifacio should be held
to be an agent for Respondent for the purposes of the con-
versations. I conclude therefore that to the extent that Isidro’s
testimony reflects his assertions as to what Bonifacio told
him about what Lefkowitz and Hirsch allegedly said, such
testimony is clearly hearsay.
It is true that in certain circumstances hearsay can be ad-
missible in NLRB proceedings, and such testimony can be
relied upon. Avlin J. Bart, 236 NLRB 242 (1978); Conagra,
Inc., 311 NLRB 1056 fn. 1 (1993). I, however, do not be-
lieve that such evidence can be relied on to form the primary
basis for the finding of a violation, particularly when other
more probative evidence was available. Three Sisters, supra
at 866; New Life Bakery, 301 NLRB 421, 430 (1991). Team-
sters Local 812 (Sound Distribution), 307 NLRB 1267, 1269
(1992).
Here the crucial portions of Isidro’s testimony concerning
the alleged statement made by Lefkowitz, and all of the al-
leged conversation with Hirsch, comes from his hearsay testi-
mony as to what his brother Bonifacio related to him about
what Respondent’s officials said to Bonifacio. Isidro testified
that he did understand some English of the June 9 conversa-
tion with Lefkowitz, and asserts that he understood
Lefkowitz tell the employees in English to ‘‘go home.’’ The
significant and disputed portions of this discussion, however,
such as who first suggested the employees go home, and
Isidro’s assertion that Bonifacio mentioned firing and
Lefkowitz said ‘‘there is no more work for us’’ is derived
solely from hearsay testimony.
Two other witnesses were present during these events,
Gomez and Bonifacio. Yet neither of these witnesses were
called by General Counsel, nor was any explanation given as
to their unavailability. Indeed, because they were both al-
leged as discriminatees and the complaint was withdrawn re-
garding them for failure to cooperate, it must be assumed
that these witnesses were not interested in participating in
these proceedings. The failure to call Bonifacio as a witness,
who was not only the brother of Isidro, but also the only
other witness who could provide legally competent, as op-
posed to hearsay testimony, is particularly damaging to Gen-
eral Counsel’s case. In fact, I am in agreement with Re-
spondent that in the above circumstances when such a wit-
ness, who must be presumed to be favorably disposed to sup-
port Isidro’s testimony, is not called by General Counsel, it
is appropriate to draw an adverse inference that Bonifacio’s
testimony would not be consistent with Isidro’s version of
events. International Automated Machines, 285 NLRB 1122,
1123 (1987); Greg Construction Co., 277 NLRB 1411, 1419
(1985).
Therefore based on the above analysis, I am constrained
to credit the essentially mutually corroborative testimony of
Lefkowitz and Hirsch about the events and conversations of
June 9 and 10. Such a finding reveals a crucial flow in Gen-
eral Counsel’s case, as the credible evidence has not estab-
lished that Isidro was discharged by Respondent. Thus in the
midst of a dispute between Lefkowitz and Bonifacio about
whether work should continue while there was still water
dripping inside the machine, Bonifacio announced that the
employees were leaving and going home. At that point
Gomez and the Claras spoke among themselves in Spanish,
and repeated in Spanish that they were leaving. Bonifacio
then informed Lefkowitz in English that the employees were
going home and said, ‘‘Let’s go, we are leaving.’’ It was
only at that point that Lefkowitz told the employees that if
they want to go home, they could leave right then, and he
would get someone else to do the job. The employees were
then escorted out by Lefkowitz. Therefore neither Isidro nor
the other employees were fired on June 9, but they walked
off the job. It is notable that this finding is consistent with
the fact that the employees had asked Lefkowitz to leave
early on that night, or in the alternative to be paid money
to stay, and Lefkowitz had turned down both requests. Thus,
it is apparent that the employees were anxious to leave early,
and it is reasonable to conclude that they might have seized
on the dispute with Lefkowitz to walk out and accomplish
their earlier desire to leave early on that evening.
Based on the credited testimony of Lefkowitz and Hirsch,
the employees came to work on June 10, and asked
Lefkowitz, through Bonifacio about the jobs of all three. At
that point Lefkowitz fired Gomez, but told the Claras that
they should wait to speak to Hirsch when Hirsch arrives.12
Bonifacio, however, speaking for Isidro, told Lefkowitz that
if Respondent was not taking back Gomez, all of the em-
ployees were leaving. The employees then walked out, and
according to Hirsch’s credited testimony did not thereafter
speak to Hirsch as requested by Lefkowitz. In these
circumstamces, because General Counsel has not adduced
sufficiently credible probative evidence, that Isidro was dis-
charged by Respondent, the complaint allegation that he was
discharged because of his activities on behalf of the ILG
must be dismissed. I so recommend.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The ILG is a labor organization within the meaning of
Section 2(5) of the Act.
3. By threatening its employees with discharge, closing of
the plant and moving its facility, if its employees selected the
ILG as their collective-bargaining representative or because
of their activities on behalf of or support for the ILG, in-
forming employees that it would not deal with the ILG, so-
liciting grievances from its employees with the implied
promise of favorably adjusting those grievances in order to
dissuade employees from supporting the ILG, promising its
employees increases or improvements in wages, paid holi-
days, sick days, health insurance, or other terms and condi-
tions of employment, in order to induce its employees to re-
frain from supporting the ILG or any other labor organiza-
tion, or to refrain from voting for the ILG or any other labor
organization in a NLRB election, coercively interrogating its
employees about their intentions of voting in an NLRB elec-
tion, and by spraying its employee with a hose because of
899MULTI COLOR INDUSTRIES
13 1f no exceptions are filed as provided by Sec.102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
14 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
said employee’s support for and activities on behalf of the
ILG Respondent has violated Section 8(a)(1) of the Act.
4. By imposing more arduous working conditions on its
employees, because of its employees’ support for or activities
on behalf of the ILG, Respondent has violated Section
8(a)(1) and (3) of the Act.
5. The General Counsel has not established that Respond-
ent discharged Isidro Clara in violation of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Based on these findings of fact and conclusions of law and
on the entire record, I issue the following recommended13
ORDER
The Respondent, Multi Color Industries, Inc., Brooklyn,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating its employees as to how they
intended to vote in NLRB election.
(b) Threatening its employees with discharge, closing of
the plant, or moving its facility, if its employees selected
International Ladies’ Garment Workers’ Union, AFL–CIO
(ILG or any other labor organization as their collective-bar-
gaining representative or because of the activities on behalf
of or support for the ILG.
(c) Informing its employees that it would not deal with the
ILG.
(d) Soliciting grievances from its employees with the im-
plied promise of favorably adjusting those grievances in
order to dissuade employees from supporting the ILG.
(e) Promising its employees increases or improvements in
wages, paid holidays, sick days, health insurance, or other
terms and conditions of employment, in order to induce its
employees to refrain from supporting the ILG, or any other
labor organization, or to refrain from voting for the ILG or
any other labor organization in an NLRB election.
(f) Spraying its employees with a hose because of employ-
ees’ support for activities on behalf of the ILG.
(g) Imposing more arduous working conditions on its em-
ployees, because of its employees support for or activities on
behalf of the ILG.
(h) In any like or related manner interfering with, coerc-
ing, or restraining employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at is facility in Brooklyn, New York, copies of
the attached notice mark ‘‘Appendix.’’14 Copies of the no-
tice, on forms provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are no altered,
defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS ORDERED that the complaint is dismissed regarding
the allegations not specifically found herein.