Three Sisters Sportswear Co.

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 853 (N.L.R.B. 1993)

853
312 NLRB No. 133
THREE SISTERS SPORTSWEAR CO.
1 The name of the Party in Interest is corrected to read as alleged
in the complaint.
2 The Respondent-Companies have excepted to some of the
judge’s credibility findings. 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). We have carefully exam-
ined the record and find no basis for reversing the findings.
3 No exceptions were filed with respect to the independent 8(a)(1)
and (2) findings. In addition, no exceptions were filed with respect
to the judge’s dismissal of the 8(b)(1)(A) complaint allegations.
4 We note that the parties stipulated that Three Sisters Sportswear
Co. and Three Sisters Apparel Corp. are the same company and that
United Knitwear Industries, Inc. and United Knitwear Industries,
Ltd. are the same company.
Member Raudabaugh agrees that the Respondents constitute a sin-
gle employer. He does not pass on the judge’s additional conclusion
that they are alter egos of each other.
5 No exceptions were filed with respect to the findings regarding
Chalston.
6 We shall correct the judge’s inadvertent omission from the notice
to employees of the requirement that the Respondent-Companies
provide access by the International Ladies’ Garment Workers’ Union
to the plant’s bulletin boards and other places where notices are
kept.
7 All 10 employees who testified at the hearing did so with the
help of an interpreter.
8 The judge provided that the notice should be posted and mailed
in Spanish and English.
Three Sisters Sportswear Co., Bedford Cutting
Mills, Inc., Three Sisters Apparel Corp., Met-
ropolitan Sweater Industries, Inc., United Knit-
wear Industries, Inc., United Knitwear Indus-
tries, Ltd., Skylight Fashions, Inc. d/b/a Sky-
light Trading, and 144 Spencer Realty Corp.
and International Ladies’ Garment Workers’
Union, AFL–CIO and Local 17-18, United Pro-
duction Workers’ Union,1 Party In Interest
Local 17-18, United Production Workers’ Union
and International Ladies’ Garment Workers’
Union, AFL–CIO. Cases 29–CA–14046, 29–CA–
14495, 29–CA–14517, 29–CA–14518, 29–CA–
14535, 29–CA–14617, 29–CA–14625, 29–CA–
14758, 29–CA–15095, 29–CA–15646, 29–CA–
15653, 29–CA–15720, 29–CA–15740, and 29–
CB–7505
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On January 15, 1993, Administrative Law Judge
Steven B. Fish issued the attached decision. The Re-
spondent-Companies filed exceptions and a supporting
brief, and the General Counsel filed a brief.
The National Labor Relations Board has considered
the decision and record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,
findings,2 and conclusions,3 and to adopt the rec-
ommended Order as modified.
1. The Respondent-Companies have excepted to the
judge’s findings that the named Respondent-Compa-
nies are a single employer and alter egos of each other.
We agree with the judge’s findings for the reasons set
forth in his decision.4 See Imco/International Measure-
ment Co., 304 NLRB 738 (1991), enfd. 978 F.2d 334
(7th Cir. 1992). We also agree with the judge’s find-
ings that the Respondent-Companies violated Section
8(a)(3) and (1) of the Act by the discriminatory treat-
ment of Carmen Nieves, Bella Martinez, Israel
Galarza, Rosita Chalston,5 and Silvia Silverio.
2. The Respondent-Companies have excepted to the
judge’s recommendation that special access remedies
be provided to the International Ladies’ Garment
Workers’ Union, AFL–CIO. We agree with the judge
that these remedies are appropriate and necessary to
dissipate the effects of the Respondent-Companies’ fla-
grant and extensive unfair labor practices.6 See S. E.
Nichols, Inc., 284 NLRB 556 (1987), enfd. in relevant
part 862 F.2d 952 (2d Cir. 1988).
3. The Respondent-Companies have excepted to the
judge’s recommendation that Beirel Jacobowitz be re-
quired to read the notice to assembled employees. We
agree with the judge to the extent that Beirel
Jacobowitz be ordered to sign the notice and be
present while the notice is read. We shall, however,
modify the recommended Order to provide that Beirel
Jacobowitz, at his option, either read the notice or be
present while the notice is read by a Board agent. In
requiring Beirel Jacobowitz to personally read the no-
tice or to be present while it is read, we emphasize
that Beirel Jacobowitz personally committed the major-
ity of the 8(a)(1) violations and personally engaged in
the discriminatory treatment of four of the five
discriminatees. In view of his pervasive personal in-
volvement in serious unfair labor practices, we con-
clude that his reading of the notice or his presence
while it is read is necessary to dispel the atmosphere
of intimidation he created. Monfort of Colorado, 284
NLRB 1429 (1987), enfd. sub nom. Commercial Work-
ers v. NLRB, 852 F.2d 1344 (D.C. Cir. 1988). In pro-
viding that Beirel Jacobowitz may elect to have the no-
tice read by a Board agent rather than to read it him-
self, we are mindful of the Second Circuit’s decision
in S. E. Nichols, supra, modifying the Board’s Order
that the company president personally read the notice
by alternatively providing that the notice may be read
by a Board agent.
4. Finally, as a substantial number of the Respond-
ent-Companies’ employees are primarily Spanish
speaking,7 we shall modify the recommended Order to
make clear that the notice to employees be posted,
mailed, published, and read in Spanish, as well as in
English.8
854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The judge recommended that the Respondent-Com-
panies be ordered to publish the notice in two news-
papers of general circulation, including El Diario, a
Spanish publication. We shall modify the rec-
ommended Order to provide that the notice be pub-
lished in El Diario in Spanish and in another news-
paper of general circulation in English. We shall also
modify the recommended Order to require the Re-
spondent-Companies to afford the Board a reasonable
opportunity to provide a Board agent to read the no-
tice, if Beirel Jacobowitz chooses not to do so, and to
provide for an interpreter to read the notice in Spanish.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent-Com-
panies, Three Sisters Sportswear Co., Bedford Cutting
Mills, Inc., Three Sisters Apparel Corp., Metropolitan
Sweater Industries, Inc., United Knitwear Industries,
Inc., United Knitwear Industries, Ltd., Skylight Fash-
ions, Inc. d/b/a Skylight Trading, and 144 Spencer Re-
alty Corp., Brooklyn, New York, their officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 2(k).
‘‘(k) Publish in two newspapers of general circula-
tion copies of the attached notice marked ‘Appendix.’
The notice shall be published twice weekly for a pe-
riod of 4 weeks. One of the newspapers shall be El
Diario; the Spanish translation of the notice shall be
published in that newspaper. The notice, in English,
shall be published in the other newspaper.’’
2. Substitute the following for paragraph 2(l).
‘‘(l) Convene during working time all employees at
the Brooklyn plant, by shifts, departments, or other-
wise, and have Beirel Jacobowitz read to the assem-
bled employees the contents of the attached notice
marked ‘Appendix,’ or at Beirel Jacobowitz’ option,
permit a Board agent to read the notice. If Beirel
Jacobowitz chooses to have a Board agent read the no-
tice, he shall be present while the notice is read. In ad-
dition, he shall be present while the Spanish translation
of the notice is read to assembled employees by a
Board agent or by a Board provided interpreter. The
Board shall be afforded a reasonable opportunity to
provide for the presence of a Board agent and an inter-
preter at any assembly called for the purpose of read-
ing the notice.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
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 layoff, discharge, issue written warn-
ings to, or otherwise discriminate against our employ-
ees because of their support for or activities on behalf
of the International Ladies’ Garment Workers’ Union,
AFL–CIO (the ILG), or because our employees en-
gaged in other protected concerted activity or because
a charge has been filed on behalf of our employees
with the National Labor Relations Board.
WE WILL NOT verbally abuse, physically assault,
block our employees from exiting our office, isolate
the work stations of our employees, instruct our me-
chanics not to fix machines of our employees on re-
quest, make more complicated and fewer assignments
to our employees, forcing our employees to wait
longer for assignments than other employees, supervise
our employees more closely, instruct our employees
not to speak with other employees, reduce the bonus
or the pay of our employees, or have our supervisor
clap their hands whenever an employee looks up from
their work, because of our employees support for or
activities on behalf of the ILG or because they en-
gaged in other protected concerted activity, or because
a charge has been filed on behalf of our employees at
the National Labor Relations Board.
WE WILL NOT order and instruct our employees not
to accept and to rip up literature from the ILG, refer
to the ILG as the MAFIA, promise our employees ben-
efits to assist us in soliciting support for Local 17-18
from other employees, threaten our employees with
discharge or closing of the factory if they support the
ILG or if the ILG comes into the factory, threaten our
employees with unspecified reprisals if they speak to
employees who support the ILG, or create the impres-
sion among our employees that their activities or the
activities of their fellow employees on behalf of the
ILG were under surveillance by us.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL offer Israel Galarza and Silvia Silverio im-
mediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
855THREE SISTERS SPORTSWEAR CO.
positions, without prejudice to their seniority or any
other rights and privileges previously enjoyed.
WE WILL make whole Galarza, Silverio, Carmen
Nieves, Bella Martinez, and Rosita Chalston for any
loss of earnings and other benefits, suffered as a result
of the discrimination against them, including the reduc-
tion of work opportunities for Nieves and the reduction
of Galarza’s pay and bonus.
WE WILL remove from our files any reference to our
unlawful actions taken against Silverio, Nieves,
Chalston, Martinez, and Galarza, and notify them in
writing that this has been done and that the actions
will not be used against them in any way.
WE WILL restore the pay of Israel Galarza to what
it had been prior to its reduction in March 1991, plus
any raises which he may have received since that time.
WE WILL rescind in writing the instruction that our
employees are no longer allowed to speak with Car-
men Nieves, and our instructions that her machine will
not be fixed by the mechanic at her request, and notify
Nieves in writing that this has been done, and distrib-
ute a copy of this notice of recession to all employees.
WE WILL restore the work station of Nieves to what
it had been prior to her termination on November 19,
1989.
WE WILL restore our practice, which had been in ef-
fect prior to November 19, 1989, of assigning Nieves
to an amount of bundles equal to that of other employ-
ees.
WE WILL mail copies of this notice signed by Beirel
Jacobowitz, our chief operating official, to every em-
ployee working at our plant on the date on which such
notice is mailed, as well as to each and every em-
ployee who worked or should have worked in our
plant since November 1989.
WE WILL publish in two newspapers of general cir-
culation copies of this notice. The notice shall be pub-
lished twice weekly for a period of 4 weeks. One of
the newspapers shall be El Diario; the Spanish trans-
lation of the notice shall be published in that news-
paper. The notice, in English, shall be published in the
other newspaper.
WE WILL convene during working time all employ-
ees at the Brooklyn plant, by shifts, departments, or
otherwise, and have Beirel Jacobowitz read to the as-
sembled employees the contents of this notice, or at
Beirel Jacobowitz’ option, permit a Board agent to
read the notice. If Beirel Jacobowitz chooses to have
a Board agent read the notice, he shall be present
while the notice is read. In addition, he shall be
present while the Spanish translation of the notice is
read to assembled employees by a Board agent or by
a Board provided interpreter. The Board shall be af-
forded a reasonable opportunity to provide for the
presence of a Board agent and an interpreter at any as-
sembly called for the purpose of reading the notice.
WE WILL, on request of the ILG made within 1 year
of the issuance of the Order here, make available to
the ILG without delay a list of names and addresses
of all employees at the time of the request.
WE WILL immediately on request of the ILG, for a
period of 2 years from the date on which the notice
is posted or until the Regional Director has issued an
appropriate certification following a fair and free elec-
tion, whichever comes first, grant the ILG and its rep-
resentatives reasonable access the the Brooklyn, New
York plant bulletin boards and all places where notices
to employees are customarily posted.
WE WILL immediately on request of the ILG for a
period of 2 years from the date on which the notice
is posted or until the Regional Director has issued an
appropriate certification following a fair and free elec-
tion, whichever comes first, permit a reasonable num-
ber of union representatives access for reasonable peri-
ods of time to nonwork areas, including but not limited
to canteens, cafeterias, rest areas, and parking lots,
within our plant so that the ILG may present its views
on unionization to our employees orally and in writing,
in such areas during changes of shift, breaks, meal-
times, or other nonwork periods.
WE WILL in the event that during a period of 2 years
following the date on which the aforesaid notice is
posted, or until the Regional Director has issued an ap-
propriate certification following a fair and free elec-
tion, whichever comes first, any supervisor or agent of
ours convenes any group of employees at the Brook-
lyn, New York plant and addresses them on the ques-
tion of union representation, give the ILG reasonable
notice thereof and afford two union representatives a
reasonable opportunity to be present at such speech
and, on request, give one of them equal time and fa-
cilities to address the employees on the question of
union representation.
WE WILL in any election which the Board may
schedule at the Brooklyn, New York plant within a pe-
riod of 2 years following the date on which the afore-
said notice is posted and in which the ILG is a partici-
pant, permit, on request by the ILG at least two union
representatives reasonable access to the plant and ap-
propriate facilities to deliver a 30-minute speech to
employees on working time, the date thereof to be not
856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 While every apparent or nonapparent conflict in the evidence
may not have been specifically resolved below, 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. Therefore, any testimony in the record
which is inconsistent with my findings is discredited.
2 Leibish shall be referred to by his legal name of David.
more than 10 working days but not less than 48 hours
prior to any such election.
THREE SISTERS SPORTSWEAR CO., BED-
FORD CUTTING MILLS, INC., THREE SIS-
TERS APPAREL CORP., METROPOLITAN
SWEATER INDUSTRIES, INC., UNITED
KNITWEAR INDUSTRIES, INC., UNITED
KNITWEAR INDUSTRIES, LTD., SKYLIGHT
FASHIONS, INC. D/B/A SKYLIGHT TRAD-
ING, AND 144 SPENCER REALTY CORP.
Elias Feuer, Esq., for the General Counsel.
Stuart Bochner, Esq. (Horowitz & Pollack, P.C.), of South
Orange, New Jersey, for Respondent Employers.
Sol Bogen, Esq., of New York, New York, for the Respond-
ent Union.
Thomas Kennedy, Esq. and Arthur Schwartz, Esq. (Lewis,
Greenwald, Kennedy, Lewis, Clifton & Schwartz, P.C.), of
New York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge. Pursuant to
numerous charges filed in the above-entitled cases by Inter-
national Ladies’ Garment Workers’ Union, AFL–CIO (the
ILG, the Union, or Charging Party), the Regional Director is
sued a number of complaints, including an order further con-
solidating cases, amended consolidated complaint and notice
of hearing, issued on June 13, 1991, which alleges in sub-
stance that Three Sisters Sportswear Co. (Sportswear), Three
Sisters Apparel Corp. (Apparel) (collectively Three Sisters),
Bedford Cutting Mills Co. (Bedford), Metropolitan Sweater
Industries, Inc. (Metro-Sweater), United Knitwear Industries,
Inc. (United Inc.), United Knitwear Industries, Ltd. (United
Ltd.) (collectively United), Skylight Fashions, Inc., d/b/a
Skylight Trading (Skylight) (collectively Respondent Em-
ployers or Respondents) are a single-integrated business en-
terprise and have violated Section 8(a)(1) of the Act by
threats, warnings, interrogations, promises of benefit, surveil-
lance, creating the impression of surveillance, and physically
removing an employee from the plant; Section 8(a)(1) and
(2) of the Act by threatening and promising employees’ ben-
efits to induce them to support Local 17-18 United Produc-
tion Workers’ Union (Respondent Union or Local 17-18); of-
fering to Local 17-18 to engage in surveillance of employees
to learn the identity of ILG supporters and disclose said in-
formation to Local 17-18; and by circulating and urging em-
ployees to sign a petition in support of Local 17-18, and Sec-
tion 8(a)(1) and (3) of the Act by discharging or laying off
employees Rosita Chalston, Carmen Nieves, Bella Martinez,
Nidia Rodriguez, and constructively discharging its employee
Israel Galarza, because the employees supported and assisted
the ILG; and Section 8(a)(1) and (4) of the Act by issuing
a disciplinary warning to and laying off and subjecting
Chalston to closer supervision because she had been the sub-
ject of previous charges filed on her behalf. The complaint
also alleges that Local 17-18 violated Section 8(b)(1)(A) of
the Act by in the presence of employees accepting the offer
of Respondent Employers to engage in surveillance of em-
ployees concerning their union support and disclose the in-
formation to Local 17-18, thereby creating the impression of
surveillance of their activities on behalf of the ILG.
During the course of the trial which was held over the
course of 22 days between June 24, 1991, and February 25,
1992, the complaint was amended to include 144 Spencer
Realty Corp. (Spencer) as an additional Respondent and as
part of alleged single-integrated enterprise of Respondent
Employers. Finally, on October 1, 1991, I granted General
Counsel’s motion to consolidate two additional cases, which
complaints alleged additional discriminatory layoffs of
Chalston plus an unlawful discharge of employee Silvia
Silverio.
Briefs have been filed by General Counsel, Respondent
Employer, and Charging Party. Respondent Union presented
oral argument. Based on the entire record,1 including my ob-
servation of the witnesses, and after due consideration of the
briefs and oral argument, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Each of the named Respondent Employers are New York
corporations which are located at 144 Spencer Street, Brook-
lyn, New York. All but Spencer are engaged in some phase
of the process of the manufacture, sale, and distribution of
knitwear goods and related products. Spencer is a real estate
corporation which owns and manages the facility at 144
Spencer Street, as well as several other buildings. Annually,
Respondent Employers, in the course of their business, pur-
chased and received at their Spencer Street facility knitwear
goods and other goods and materials valued in excess of
$50,000 directly from points located outside the State of
New York. Respondent Employers are, and have been at all
times material, employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
Additionally, the ILG and Local 17-18 are and have been
at all times material labor organizations within the meaning
of Section 2(5) of the Act.
II. PRIOR RELATED CASES SOUTHLAND KNITWEAR, INC.
AND METROPOLITAN INDUSTRIES, INC. CASES 29–CA–
7765, 29–CA–8096, 260 NLRB 642 (1982)
On March 4, 1982, the Board issued its decision in the
above-entitled case, affirming the administrative law judge’s
recommendation that Southland Knitwear, Inc. (Southland)
and Metropolitan Industries, Inc. (Metropolitan), a single-in-
tegrated enterprise, violated Section 8(a)(1), (2), and (3) of
the Act. The agents of the Respondent therein, who commit-
ted the various unfair labor practices were Jack Jacobowitz
and three of his children Beirel, Leibish,2 and Sylvia. The
violations found included threats to employees of discharge
and or plant closure if they supported ILG or if they refused
to support Local 413, Office and Professional Employees
857THREE SISTERS SPORTSWEAR CO.
3 Respondent concedes that the two Three Sisters entities, Three
Sisters Sportswear, and Three Sisters Apparel Corp., do constitute a
single employer.
International Union, AFL–CIO (Local 413), interfering with
the distribution of ILG literature, admonishing employees not
to speak to ILG representatives, telling employees that the
ILG representative was from the Mafia, soliciting and forcing
employees to sign authorizaiton cards for Local 413, creating
the impression of surveillance of employees, promising and
granting employees benefits to induce them to support Local
413 and/or to abandon their support for ILG, the laying off
of approximately 83 employees because of their support for
ILG and their refusal to support Local 413, and conditioning
the recall of employees on abandonment of ILG, and enforc-
ing a long dormant collective-bargaining agreement with
Local 413, including the deduction of dues from employees’
paychecks. The Board also modified the administrative law
judge’s recommended Order to provide for a broad cease-
and-desist Order, inasmuch as it found that the Respondent
therein had committed ‘‘egregious and widespread unfair
labor practices.’’
On May 5, 1983, Southland and Metropolitan, by its attor-
ney, entered into a stipulation with the Board, waiving its
rights to appeal the underlying decision, in exchange for the
Board’s refraining from seeking enforcement. The stipulation
also reflects that the Respondents are not precluded from liti-
gating the question of backpay due to the employees, and
that Respondents will make records available to the Board
necessary for the computation of backpay due.
Southland and Metropolitan purportedly shut down their
operations at 144 Spencer Street in mid-September 1983. Ap-
parently, at some point undisclosed by the record, the Region
received information that these corporations may still be op-
erating at that location, but under the names of the various
Respondents in the instant case. Consequently, on June 13,
1989, the Region issued a backpay specification and notice
of hearing in Cases 29–CA–7765 and 29–CA–8096, which
alleged inter alia that all the named corporations in the in-
stant case (except for Spencer) were since on or about Octo-
ber 1983, a single employer, alter ego with and/or successor
to Southland and Metropolitan, and that all of these corpora-
tions were jointly and severally liable for making whole the
discriminatees for the loss of the pay they suffered by reason
of the discrimination against them. Subsequently, a number
of amendments were issued to this specification, and the
hearing therein opened before me on January 21, 1992. After
much discussion, it was decided to defer litigation of the
issue of whether the various operating entities were respon-
sible for remedying the unfair labor practices of Southland
and Metropolitan, until the record was complete in the in-
stant case, when it would be decided what portions of this
record would be incorporated into the record of the backpay
hearing.
On March 13, 1992, the parties entered into a stipulation
settling the backpay matter, which I subsequently approved.
The stipulation provides that all of the named Respondents,
including Spencer, would be jointly and severally liable for
the full amount of the backpay owed by Southland and Met-
ropolitan pursuant to the Board Order which would be satis-
fied by the payment of some $340,000 in installment pay-
ments between May 1992 and April 1, 1994. The stipulation
also provided that the agreement does not constitute an ad-
mission that the corporations involved are a single employer
or that they are alter egos and/or successors of or to each
other and/or to Southland or Metropolitan.
III. THE SINGLE EMPLOYER ISSUE
A. Facts
The preliminary question to be decided is whether it is
necessary or appropriate for me to make findings as to the
single employer issue in the instant case. I had initially
raised this issue myself particularly in view of the pendency
at that time, of the backpay hearing wherein the identical
issues would have to be litigated and decided. That possibil-
ity has now been eliminated, in view of the settlement of the
other case, without a determination of the issues involved
herein.
However, the issue is still present, especially since Re-
spondents have taken the position that the single employer
issue need not and should not be decided at this time. In that
connection, Respondents contend that the employer of all the
employees involved herein is Three Sisters,3 and that there
is no need to decide the question of the alleged relationship
between Three Sisters and the other companies, unless and
until it becomes necessary in a compliance proceeding.
General Counsel argues on the other hand that the admin-
istrative law judge must decide all complaint allegations.
Cardio Data Systems Corp., 264 NLRB 37 (1982). General
Counsel also argues that since an extensive record has been
made in the present case, it is essential for a determination
to be made on that record so that proper legal responsibility
for Respondents actions can be enforced, with the possibility
of contempt against all of the possible violators, in the event
of future violations.
Charging Party emphasizes the ‘‘egregious’’ violations
committed by Southland and Metropolitan in the prior case,
and urges that a finding that the present entities are an alter
ego of or single employer with these other corporations is es-
sential to prevent future violations by Respondents, and to
justify various special remedies requested by Charging Party
in the current case.
I am persuaded that it is appropriate for me to decide the
issue in this case. The matter has been litigated extensively,
which included several instances of district court enforce-
ment of subpoenas before Respondents turned over relevant
documents. I do not believe that effectuation of the Act
would be enhanced by postponing a decision on this issue,
requiring the duplication of such litigation, in the event Re-
spondents do not comply with the decision. Moreover, the
connection between Southland and Metropolitan and the
present companies must be decided in order to determine the
propriety of the special remedies that Charging Party has re-
quested.
Accordingly, I shall decide the issues of whether the Re-
spondents herein constitute a single employer, as well as
whether these Respondents constitute an alter ego of or sin-
gle employer with Southland and Metropolitan.
In that connection, the prior decision found that Southland
and Metropolitan were engaged in the manufacture, sale, and
distribution of knitwear goods and related products at 144
Spencer Street in Brooklyn. Prior to 1973, Southland and
Metropolitan had operated under the name High Point Ho-
siery located at Park Avenue, Brooklyn.
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 This checking account was maintained until at least January 31,
1985. Additionally, Metro Sweater filed a document dated October
14, 1983, with the Merchants Bank, indicating that any one officer
of the corporation was authorized to sign or endorse checks, and that
Jack or David Jacobowitz were the officers so designated.
5 She did not indicate which Metropolitan entity paid her, although
her 1982 W-2 form was issued by Metro Sweaters.
In 1973, the Company’s name was changed from
Highpoint to Southland and Metropolitan when it moved to
the sixth floor on 144 Spencer Street. On August 13, 1973,
an account was opened with Brooklyn Union Gas Co. for gas
supplied to four heating units and a hot water heater, located
at 144 Spencer Street. According to records from Brooklyn
Union Gas, this account has been continuous from 1973 to
date, and that at least from May 7 1984, the bill has been
sent care of Bedford Cutting Mills. These records do not es-
tablish what floors are involved with this account. The
Brooklyn Union Gas records also established a separate
Brooklyn Union Gas account for Three Sisters, opened on
October 9, 1984, which covers the fifth floor at 144 Spencer
Street.
Although the prior case found the Respondents therein to
be a single integrated enterprise consisting of Southland and
Metropolitan Industries (Metro) it appears that the Respond-
ent therein was also operating under the names of Metropoli-
tan Form Industries (Form), and Metropolitan Sweater Indus-
tries (Metro-Sweater). Collectively, I shall refer to the entire
entity as Southland-Metro.
Thus, Southland opened a payroll checking account at
Merchant’s bank, with Jack and David Jacobowitz as sig-
natories. The signature card discloses that Southland was in-
troduced to the bank by Form. Form filed the Federal Quar-
terly wage report on behalf of Metro’s employees, and Form
and Metro have identical taxpayer ID numbers of Case 11–
23–01746.
On June 13, 1978, the title of a checking account with the
Merchants Bank was changed to Metro Sweater, with Jack
and David Jacobowitz again signatories, as president and
treasurer.4 In 1979, the employees were issued W-2 forms by
Metro, but in 1981 and 1982, the same employees were
issued W-2 forms by Southland and Metro-Sweater respec-
tively, both of which shared a common ID number of 11–
25533373.
Employee Ausemzia Lugo was hired at 144 Spencer Street
on the sixth floor, in June 1979 (under her maiden name,
Francasca Agular), and during her tenure, which lasted until
1991 (with a maternity leave included), she was paid by ei-
ther Southland or Metropolitan5 at various times. Her
uncontradicted and credited testimony established that prior
to September 1983, Beirel Jacobowiz was the direct super-
visor of the machine operators of the Southland-Metro entity,
who worked on the sixth floor at 144 Spencer Street. During
that same period of time, the cutting department was also on
the sixth floor, and was supervised by David Jacobowitz.
As noted above, in May 1983, Respondent Southland
Metro entered into a stipulation, waiving its rights to appeal
the underlying decision by the Board, and leaving for future
determination the question of backpay due to the 83 employ-
ees discriminated against.
In mid-September 1983, Beirel met with the sewing ma-
chine operators of Southland Metro and notified them that
they would be moving to the fifth floor in 2 weeks. The em-
ployees were instructed by Beirel to paste labels on their ma-
chines with their names on it.
Two weeks later, on October 2, 1982, 51 former Southland
Metro employees, including Lugo reported for work on the
fifth floor, where Beirel directed these employees to use the
same machines that they had labeled with their names and
operated previously on the sixth floor. As of October 2, these
employees were placed on the payroll of Three Sisters.
Three Sisters had formerly been located on 84 North 9th
Street, Brooklyn, and had moved to 144 Spencer Street in
late May or early June 1983. Three Sisters’ payroll ending
September 25, 1983, consisted of 34 employees. Its payroll
for the week ending October 9, 1983, consisted of 94 em-
ployees, including 50 former Southland-Metro employees
who were listed by Three Sisters as new hires, along with
12 other employees listed as new hires, who had not pre-
viously been employed by either Southland-Metro or Three
Sisters.
The cutting department employees remained on the sixth
floor, and continued to be supervised by David Jacobowitz.
At some point, undisclosed by the record, the cutting depart-
ment employees were transferred to the payroll of Bedford
Cutting Mills, Inc. (Bedford). At other points, also not dis-
closed by the record, the cutting department employees em-
ployed by Bedford moved to the fourth floor at 144 Spencer
Street, and subsequently were transferred from Bedford’s
payroll to the payroll of Three Sisters. All the corporate of-
fices of Bedford were held by Abraham Gutman, who is Jack
Jacobowitz’ son-in-law and who is married to Jack’s daugh-
ter Sylvia. However, the evidence discloses that the cutting
department employees have been supervised by David
Jacobowitz directly, under the overall supervision of Beirel.
While Gutman as noted is the only corporate officer listed,
there is no evidence that he played any active role in the run-
ning of the business.
As for Three Sisters, when it commenced operations, its
only officers were Jonathan and Eva Mandel, who were not
related to the Jacobowitzes. However, it is clear that Beirel
continued to run the operation on a day-to-day basis, even
after the transfer of employees to the Three Sisters payroll.
Jonathan Mandel was involved in supervising employees for
a period of several months, until early in 1984, when he dis-
appeared from any active role in the business. The Mandels
signed Three Sisters’ tax returns for 1982, and received sala-
ries of $12,000 for Jonathan and $3200 for Eva that year.
The 1983 tax return provided for no salary to either Mandel,
notwithstanding the fact that its gross income rose from
$400,000 to $1,319,728. In their 1984, 1985, and 1986 re-
turns, Three Sisters did not show any salary to the Mandels
or to any other officer. At some point, not disclosed by the
record, but prior to 1986, Martin Weingarten, and his wife
Leah, a daughter of Jack Jacobowitz, became officers of
Three Sisters. However, once again the record does not dis-
close any evidence that either Weingarten played any direct
role in running the business.
In January 1984, a document was executed at Three Sis-
ters’ bank listing Jonathan Mandel and Abraham Jacobowitz
as president and secretary of Three Sisters, and as the two
individuals with authority to sign checks on behalf of Three
Sisters. Abraham Jacobowitz is a son of Jack and a brother
of Beirel, who has been at all times material herein a full-
time student studying at Yeshiva, and who has never actually
859THREE SISTERS SPORTSWEAR CO.
6 For example, as discussed below, I do not credit Jacobowitz that
equipment was sold to Three Sisters by Southland-Metro.
7 Respondent concedes that Inc. and Ltd. are a single-integrated
enterprise.
8 Note however, that as detailed above, the Bedford employees at
one point were transferred to the payroll of Three Sisters.
9 These Three Sisters employees normally worked on the fifth
floor for Three Sisters, but on occasion were told by their manager
to help out on the fourth floor.
10 It is not clear whether the employees who perform the packing
and shipping functions on the fourth floor were employed by Bed-
ford at one time, or by Three Sisters all along. As noted above, at
some point all the employees were transferred to the Three Sisters
payroll.
performed any work for Three Sisters or any other of Re-
spondents’ corporations. However, at the instruction of his
father Jack, Abraham gave his brother Beirel the authority to
sign his (Abraham’s) name on any documents involved in
the various companies controlled by the Jacobowitzes.
Jack Jacobowitz consistently attempted to disclaim any
knowledge of a connection between Three Sisters and the
other entities involved, and sought to portray Beirel’s em-
ployment there as a mere coincidence. I found Jack
Jacobowitz who testified as a 611(C) witness and in connec-
tion with the question of the existence of certain records, not
to be believable. He responded to most questions, ‘‘I don’t
know,’’ or ‘‘I do not remember,’’ and I am convinced that
he was able to answer many of these questions, but he sim-
ply chose not to do so. Thus, I have not credited him in var-
ious respects, where his testimony conflicts with other find-
ings that I have made below.6
However, I do rely on the following testimony of
Jacobowitz as an admission against the various Jacobowitz
entities. Thus, Jack Jacobowitz was asked when he first
found out that his son Beirel was going to be working at
Three Sisters? His response was as follows:
I don’t know when I found out. You have to ask him.
I have no idea when. Probably, he came around asking,
I gave him a job. I said yes, I gave him a job. He’s
entitled to make a living.
Later on in his examination, Jack Jacobowitz repeated this
revealing admission when he testified referring to Beirel,
‘‘but he asked me, I want the job, so I gave him the job.’’
At approximately the same time that Three Sisters hired
the Southland-Metro employees, Jack Jacobowitz formed
several additional corporations which operated out of the
same 144 Spencer Street location. They were United Knit-
wear Industries, Ltd. (Ltd.), and United Knitwear Industries,
Inc. (Inc.) (United),7 and Skylight Fashions, Inc. (Skylight).
Jack Jacobowitz owns 51 percent of each of these corpora-
tions, with his sons Beirel and David owning 24.5 percent
of said companies, which are subchapter (S) corporations.
United became the coordinating arm of the operation.
Thus, purchasing was done by United, cutting by Bedford,
the sewing, cleaning, hanging, packaging, and shipping by
Three Sisters, sales and collections by United and by Sky-
light. Thus the record discloses that the various Jacobowitz
entitles occupied floors 4, 5, and 6 at 144 Spencer Street.
The building has two large signs on the outside, which refer
only to Skylight of all the Respondents. The testimony of
employee Israel Galarza supported by the testimony of em-
ployee Brigida Padilla, as well as various documents submit-
ted into evidence, established significant functional integra-
tion between the companies. Thus, when fabric is delivered
to 144 Spencer Street, it is loaded on the elevator by em-
ployees normally employed and paid by Bedford on the
fourth floor.8 These employees take the fabric to the sixth
floor, where it is stored. The sixth floor also was used to
store spare parts, old sewing machines, and corporate
records. These Bedford employees retrieve the fabric from
the sixth floor and transport it to the fourth floor, where it
is cut at the cutting tables by Bedford employees. After the
fabric is cut, it is placed into bundles and sorted by colors,
at other tables on the fourth floor by employees of Bedford
and at times assisted by employees of Three Sisters.9
The bundled fabrics are then transported to the fifth floor
by the Bedford employees, wherein they would be distributed
to the merrow and singer sewing machine operators em-
ployed by Three Sisters who produce a finished garment.
Next, floor workers employed by Three Sisters cut the
threads, clean, ticket, place the garments on hangers and in
plastic bags, and send the garments by a conveyor pipe to
the fourth floor, where they are packed and shipped.10
The entire operation is overseen by Beirel who moves
from floor to floor, and supervises employees on all three
floors. Beirel utilizes a loudspeaker system and a walkie-talk-
ie to communicate announcements to employees and/or or-
ders or requests to supervisors from floor to floor. David
Jacobowitz continued to be the direct supervisor of the cut-
ting department employees, as he had been at Southland
Metro.
Galarza’s uncontradicted and credited testimony also es-
tablishes a significant admission on the part of Respondents.
In October 1984, Galarza, who would at times bring the mail
to Respondents from downstairs to the fifth floor, noticed
mail addressed to United. Galarza asked Beirel about United
since he was not familiar with that name. Beirel instructed
Galarza that when he sees mail for United, ‘‘it’s for us.’’
Beirel added that ‘‘United is the same thing as Three Sis-
ters.’’ Beirel also told Galarza that Metropolitan Industries,
Inc. was ‘‘another of the names that the company had.’’
I also conclude in agreement with General Counsel that
the title of the sewing machines, previously owned by South-
land Metro was acquired by United. I make this finding
based on an examination of the depreciable assets of South-
land Metro, United, and Three Sisters. In this connection, I
do not credit the contradictory testimony of Jack Jacobowitz
that the machinery was sold directly to Three Sisters by his
sons on behalf of Southland Metro, or David Jacobowitz that
the machines were sold at an auction. I note particularly the
absence of any documentation to support either of these as-
sertions, as well as the fact that the testimony of the two
principals of Respondents conflict with each other on this
point.
Additionally, some companies from whom United and/or
Skylight purchased goods in 1984 and 1985, continued to use
the old Order Acknowledgment Forms that had been used in
connection with their prior purchases from Southland-Metro,
more precisely from Metropolitan Industries, Inc. The in-
voices involved generally reflected that the goods were sold
to United and shipped to Skylight, with the order acknowl-
edgment from Metropolitan Industries. On these forms,
860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 All the companies used in addition to employees, Barbara Blatt,
an independent contractor to perform bookkeeping services for them.
12 For 1984, 97.5 percent of Three Sisters’ income came from
United.
United Knitwear, Inc. at the 144 Spencer Street address was
added to the Metropolitan form with the designation ‘‘New
Address.’’
More importantly, the record is replete with evidence that
United made payments to vendors on behalf of Three Sisters,
Bedford, and/or Skylight for various supplies, services, and
labor, including newspaper ads, leasing of sewing machines,
purchase of a bagging machine, hangars, knives, garments,
and other materials. Respondents adduced no evidence or ex-
planation as to why United made these purchases.
Alan Feinsilber is utilized as the accountant for all the cor-
porations involved, and he prepares the tax returns for these
entities. The record reveals that he was paid with a United
check for services rendered to Bedford and Three Sisters, as
well as to United. Feinsilber addresses correspondence to
United at 144 Spencer Street, even where the matters dis-
cussed in the letter relates to Three Sisters, Skylight, or Bed-
ford.
There is one office area on the fifth floor at 144 Spencer
Street for all the corporations, which includes the offices of
Beirel, David, and Jack, as well as the clerical and book-
keeping staff of each company.11
The letterheads of both Skylight and United describe
themselves identically as ‘‘manufacturers of Ladies and Chil-
dren’s Quality Knitwear.’’ During 1990, one vendor, New
York Sewing Machine Attachment Co., invoiced United and
Skylight interchangeably for the same items. Similarly, an
audit letter from Feinsilber that was mailed to Burlington In-
dustries to verify Skylight’s accounts receivables had United
Knitwear written on the top, and was returned by Burlington
with an invoice summary of quarterly sales to United. It was
also common practice for banks, customers, and other credi-
tors of United and Skylight to require these companies to
execute cross-corporate guarantees before loaning funds or
extending credit to either of these companies. The record re-
veals that Jack Jacobowitz on behalf of both companies has
executed such cross-corporate guarantees. Additionally
Feinsilber admitted and the record discloses that he consid-
ered United and Skylight to be affiliates under IRS rules, and
reports transactions between these companies as ‘‘related
parties transactions.’’ For the years 1989 and 1990, 100 per-
cent of United’s sales were made to Skylight.12 For the year
ending June 30, 1990, Skylight paid 68.4 percent of its con-
tractor expenses to United. During the fiscal year ending
March 31, 1990, Three Sisters and Bedford comprised 57.6
percent and 17.1 percent, respectively, of United’s contractor
expenses for that year. For the last year in which Bedford
filed a tax return, ending October 31, 1986, 98 percent of
Bedford’s sales were made to United and Skylight. Bedford
does 100 percent of United’s cutting.
Significant and substantial evidence of a connection be-
tween the corporations was demonstrated by a number of
documents relating to insurance policies and coverage. Thus,
on June 19, 1987, David Jacobowitz signed a document from
MSP Insurance Trust (MSP) involving an insurance claim of
an employee, which indicates that the employee is actively
working full time for ‘‘Bedford, Three Sisters, United.’’ The
document also reflects, under David Jacobowitz’ signature
that ‘‘these three companies (Bedford, Three Sisters, and
United) are interrelated, located on the same premises, and
have the same officers.’’
Prior to April 1987, monthly invoices from MSP covering
insurance for David, Beirel, and Jack Jacobowitz were ad-
dressed to Metro Sweater and paid by checks from United.
As of April 1, 1987, invoices with the same MSP billing ac-
count number covering the same employees were then ad-
dressed to United, Bedford, Three Sisters, and were still paid
by United. In the fall of 1989, and Three Sisters and United
were jointly invoiced for a Blue Shield-Blue Cross policy
covering the Jacobowitz plus the other clerical employeeses
and a disability policy covering David Jacobowitz, which
were both paid by United checks.
In July 1988, United was contacted by the New York State
Workers’ Compensation Board requesting proof that its em-
ployees were covered by a compensation policy. United re-
plied, enclosing a binder from PSM Insurance Co., reflecting
insurance coverage for United and/or Bedford and/or Sky-
light and/or Spencer Bruce Ltd. at 144 Spencer Street, listing
the business as ‘‘Sportswear Mfg.’’
On January 3, 1989, United was sent a notice from the
State Insurance Fund, indicating that the policy for all the
companies has been canceled ‘‘at your request.’’ United re-
sponded by letter dated January 10, 1989, stating that it did
not want to cancel the policy, but only to eliminate Skylite,
Spencer Bruce, or Bedford, and continue the policy only for
employees of Three Sisters and United.
On March 23, 1989, a commercial insurance policy was
issued by North River Insurance Co. covering United, Three
Sisters, Skylight, Bedford, Spencer Bruce, and Spencer Real-
ty Co. Subsequently, Royal Insurance Co. of America be-
came the insurer with a policy from 1991–1992 covering all
the above companies with the exception of Spencer Bruce.
Finally, it appears that the employees of Bedford (when
Bedford had employees) and those employees employed by
Three Sisters were covered by the same collective-bargaining
agreement with Local 17-18, United, Production Workers’
Union, AFL–CIO.
As for 144 Spencer Realty Co. (Spencer), this entity on
September 9, 1982, purchased the building at 144 Spencer
Street, Brooklyn, New York, which also included addresses
of 132 and 164 Spencer Street and 700 Myrtle Avenue. Jack
Jacobowitz is the majority shareholder of Spencer, with his
son Abraham also holding a small amount of shares in the
company. Spencer’s current checking account was opened at
Mfg. Hanover Trust, on September 16, 1982, with the
taxpaper ID number of 11–2553373 the same as used by
Southland and Metro Sweater. The signatories on the account
were David or Abraham Jacobowitz.
As noted above, Abraham Jacobowitz authorized his broth-
er Beirel to sign his name, which authority Beirel utilized
with respect to Spencer as with other of the entities involved.
In fact, Beirel and David Jacobowitz shared the day-to-day
running of Spencer, along with their similar responsibilities
with respect to Three Sisters and Bedford. In this connection,
Beirel received legal documents and correspondences on be-
half of Spencer addressed to him and signed checks and
leases on behalf of Spencer under his alias ‘‘Abraham’’
Jacobowitz.
861THREE SISTERS SPORTSWEAR CO.
13 I note further that Respondent adduced no evidence that such
leases were ever in existence.
14 Although only one of the Three Metropolitan entities (Indus-
tries) was referrred to in the prior decision, I have found above that
the single employer enterprise also included Metro Sweater and
Metro Form, and the enterprise treated these companies interchange-
ably. Indeed, the employees at times were paid by Metro Sweater.
Spencer shares office space and clerical employees with
the other companies herein on the fifth floor at 144 Spencer
Street. Additionally, Spencer also uses Feinsilber as its ac-
countant.
Since no leases between Spencer and Southland Metro,
Three Sisters, Bedford, United, or Skylight were produced
pursuant to subpoena, I agree with General Counsel that it
is appropriate to infer, which I shall do, that no such leases
were executed between these parties.13
When Spencer purchased the building in September of
1982, Southland-Metro was located on the sixth floor, and
paid rent to Spencer through September 1983. Southland-
Metro’s rent payments would fluctuate and, in some months,
it made no payments at all. From January through June 1983,
its rent payments to Spencer ranged from $3500 to $4500 per
month. In July 1983, it made no payments, but in August
Southland-Metro made two $2500 payments. Bedford began
making rent payments in July 1983 of $1500. In September,
Southland-Metro’s last month of paying rent, it paid $2500
and Bedford $1500.
Three Sisters began paying rent in June 1983 at a rate of
$2,187.50 per month. In October when Southland Metro
ceased paying rent, Three Sisters’ rent was increased by
$1,458.33 to $3,645.83. Bedford paid no rent for October
1983. In November 1983, United paid the rent for Three Sis-
ters of $3,645.83, while again Bedford paid no rent. Bedford
paid $1500 for rent in December 1983, while Three Sisters
made no payments.
In January 1984, Bedford’s rent was increased to $2500
and paid such rent for January, February, and March. Three
Sisters paid its rent of $3,645.28 during these months. How-
ever, during April and May 1984, neither Three Sisters nor
Bedford paid any rent. Bedford missed payments in July
1984 and January 1985. There is no evidence that any of the
above-detailed rent delinquencies of Three Sisters and Bed-
ford were ever satisfied. However, United made a loan to
Spencer of $5000 in March 1984, $12,500 in May 1984, and
$3000 in May 1985. No evidence was adduced that Spencer
ever repaid any of these loans.
Three Sisters and Bedford continued to regularly pay
$3,645.83 and $2,500 respectively until October 1987, when
the monthly payments were suddenly reduced to $1000 and
$500 respectively. Spencer’s rent receipts do not reflect that
any other tenants received any reductions in rent at that or
any other time for that matter. Nor did Respondents adduce
any evidence to explain the substantial rent reductions in Oc-
tober 1987 for these companies. These reduced payments
continued through at least January 1989. In February 1989,
neither Bedford nor Three Sisters paid any rent. The check
ledgers of Three Sisters show that it continued to pay $1000
a month to Spencer at least through July 1990. However, on
its checkstubs, Three Sisters labeled its payments to Spencer
during the months of May, June, July, and August 1987 as
LIE (loans and exchanges) or simply loan, instead of as rent.
Finally, the record reflects that in response to the General
Counsel’s subpoena for records of Spencer Realty Co., Re-
spondent produced files that included documents relating to
Bedford, Three Sisters, United, and Skylight, along with doc-
uments relating to Spencer. No explanation was adduced by
Respondents to explain this commingling of files.
B. Analysis
In determining whether separate entities constitute a single
employer, the Board considers factors such as interrelation of
operations, common management, centralized control of
labor relations, and common ownership or financial control.
Hydrolines, Inc., 305 NLRB 416 (1991). Also relevant are
such factors as the use of common office facilities, common
use of equipment, and family connections between or among
the various enterprises. Goodman Investment Co., 292 NLRB
340, 347 (1989). Not all of these factors must be found to
establish the existence of a single employer, and no one fac-
tor is controlling. Single employer status depends on all the
circumstances of a particular case, and is characterized by an
absence of an arm’s-length relationship found among
unintegrated companies. Hydrolines, supra; Goodman, supra;
NLRB v. Al Bryant, 711 F.2d 543, 55 (3d Cir. 1983).
The question of whether companies constitute alter egos of
each other, involves the examination of similar criteria, plus
an examination of the purpose of the formation of the addi-
tional companies. Thus, among the factors to be considered
are common management, ownership, common business pur-
pose, the nature of operations, and supervision, common cus-
tomers, i.e., whether the employers constitute ‘‘the same
business in the same market,’’ as well as the nature and ex-
tent of the negotiations and formalities surrounding the trans-
action; and whether the purpose behind the creation of the
alleged alter ego was legitimate or whether instead its pur-
pose was to evade responsibilities under the Act. Vinisa II,
Ltd., 308 NLRB 135 (1992); Fugazy Continental Corp., 265
NLRB 130 (1982), enfd. 725 F.2d 1416 (D.C. Cir. 1984).
Although the complaint does not allege Southland-Metro
to be a Respondent, as noted the alleged connection between
the Respondents and Southland-Metro was litigated exten-
sively as bearing on the issue of how and why the Respond-
ents came to operate at 144 Spencer Street. It is therefore ap-
propriate to decide whether the Respondents do constitute
alter egos of the Southland-Metro entity, in assessing wheth-
er Respondents are single employers and/or alter egos of
each other, as well as in considering the extraordinary rem-
edies requested by Charging Party.
As noted above, Southland-Metro was found in the prior
trial to have violated Section 8(a)(1) and (3) of the Act, in-
cluding the unlawful termination of 83 employees.14 In May
1983, Southland-Metro executed a stipulation, wherein it
withdrew its challenge to court enforcement of the Board
Order. Clearly, Southland-Metro and its principals, the
Jacobowitz family, knew that the entity was facing a substan-
tial backpay liability to 83 employees as a result of its agree-
ment not to contest the Board’s Order.
Some 4 months later in mid-September, Southland-Metro
purportedly shut down its operation at 144 Spencer Street.
However, 2 weeks later, I conclude that Southland-Metro re-
opened its operation after acquiring Three Sisters, and form-
862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Fugazy, supra at 1303; BMD Sportswear Co., 283 NLRB 142,
155 (1987), Vulcan Trailer Mfg., 283 NLRB 480, 486 (1987).
16 Even more revealing is Beirel’s statement to an employee that
Southland-Metro had many other places where it could send the
work, if it closed. See BMD, supra fn. 1 at 142.
17 I shall detail below more specific findings with respect to the
single employer status of these corporations, which also deal with
similar criteria vis a vis the alter ego questions.
ing the other corporations and continued their business of
manufacturing and selling sweaters. Thus, a majority of
Three Sisters’ employees on October 2 consisted of former
Southland-Metro employees, who were assigned by Beirel to
work for Three Sisters on the fifth floor at 144 Spencer
Street to operate the same sewing machines that they had
used 2 weeks before, while working for Southland-Metro on
the sixth floor.
As of October 2, 1983, these employees continued to be
supervised by Beirel Jacobowitz. The cutters continued to be
supervised by David Jacobowitz. Although the Mandels were
the initial owners of Three Sisters, they received a salary for
only 1 year, and disappeared from any active role in manage-
ment of the Company after 4 months. Eventually, Martin
Weingarten, a son-in-law of Jack Jacobowitz and brother-in-
law of Beirel and David, became the owner of Three Sisters,
although it does not appear that he plays any active role in
the day-to-day operations of the business. I find these events
to be nothing more than an obvious attempt to insulate Three
Sisters from liability for Southland-Metro’s unfair labor prac-
tices, while attempting to conceal the true facts, that Three
Sisters and the other corporations are simply a continuation
of the Southland-Metro business operations.
Respondents’ attempt to portray Three Sisters as a separate
independent corporation that happened to give jobs to Beirel
and David is belied by the record. I note particularly that
shortly after commencing its operations, Three Sisters gave
check-signing authority to Beirel, through his alias Abraham
Jacobowitz. This not only demonstrates significant evidence
of control of Three Sisters at that time by the Jacobowitzes,
but is revealing as further evidencing its intent to conceal the
Company’s connections with Southland-Metro. Thus, no ex-
planation was given as to why Beirel could not have been
given check-signing authority in his own name, rather than
having him sign his brother’s name, who was off studying
at Yeshiva. I find the only logical assumption to be that
since Beirel had been associated with Southland-Metro, it
would not be advisable to have his name on record as a
check signer of Three Sisters, which might reveal the fact
that Beirel was continuing to run the business, as he had
done while Southland-Metro was employing the employees.
It is noteworthy that Respondents have given no credible
explanation for their decision to shut down their operation in
September 1983, and reopen 2 weeks later. Respondents did
not present any witness on their behalf. While at one point
Jack Jacobowitz, who testified in connection with subpoe-
naed documents, and as a 611(c) witness, testified that
Southland-Metro shut down ‘‘because it had no business,’’
this assertion was not proved by any documentary evidence,
and was in fact refuted by the subsequent events of the re-
opening and the continuation of operations. Jacobowitz at-
tempted to explain this decision by pointing out that as a
‘‘jobber,’’ his assertion as to United’s function, he had no
rent or overhead, and therefore his business was now sub-
stantially different. However, as detailed above and below, it
is clear that United became more than a mere ‘‘jobber,’’ but
was in fact the coordinating arm of the business, using Three
Sisters to sew and Bedford to cut, and then using Skylight
to sell the product to customers. Thus, it is obvious that the
entity continues to have overhead and rent expenses, and
Jacobowitz’ assertion of no business as a reason for the pur-
ported shutdown is specious.
Also highly significant is Jack Jacobowitz’ admission con-
cerning the hiring of his son Beirel as an ‘‘employee’’ of
Three Sisters. I note again my assessment of Jacobowitz’
credibility as detailed above, wherein I concluded that he
was falsely asserting that he did not remember in response
to many questions, which were in my view an attempt to
conceal true facts concerning the relationship between the
various companies. Therefore, his admission that he (empha-
sis supplied) gave Beirel a job with Three Sisters, because
Beirel was ‘‘entitled to make a living,’’ becomes even more
significant in establishing that in fact the Jacobowitz family
was in full control of the operations of Three Sisters as of
October 2, 1983, when the former Southland Metro employ-
ees began their employment with that company.
Another significant factor, frequently relied on by the
Board in finding alter ego status, is the presence of unlawful
threats to close the plant by the Company which purportedly
went out of business.15 Here, the prior case did find a num-
ber of threats by Jack, David, and Beirel Jacobowitz to close
the plant if the employees supported the ILG, which is fur-
ther demonstrative of my conclusion that Southland-Metro
carried out its threat to close,16 but then reopened again
under the new corporate names in order to avoid their re-
sponsibilities under the Act.
Accordingly, based on the foregoing evidence, including
the admissions and statements of its officials, the timing and
manner and short duration of the alleged shutdown of South-
eastern Envelope Co., 246 NLRB 423, 427 (1979), and the
absence of any bona fide reasons for these actions, BMD,
supra fn. 1, I conclude that Southland-Metro was motivated
by the desire to avoid their backpay liability under the prior
Board Order and that Three Sisters and the other entities are
an alter ego of Southland-Metro.17 Fugazy, supra; Vinisa,
supra; BMD, supra; Imco-International, 304 NLRB 734
(1991).
Turning to the various factors considered by the Board in
determining single employer and/or alter ego status, I find
that most of them are present in varying degrees with respect
to the companies in question.
As for interrelation of operations, the evidence is over-
whelming that Three Sisters, Bedford, United, and Skylight
are all involved in an integrated process of producing and
selling garments. Thus, the unrefuted testimony of Galarza,
as outlined above, traces the flow of the product from the re-
ceipt and storage of the fabric, cutting, sewing, packing,
shipping, and sale of the garment, among the three floors at
144 Spencer Street, inhabited by these companies.
All four of these corporations share the same office area,
clerical staff and accounting services. Goodman, supra at
347; Imco, supra.
Three Sisters and Bedford sell almost 100 percent of their
services to United and Skylight. United sells 100 percent of
its services to Skylight. Bedford does all of United’s cutting.
Hydrolines, supra.
863THREE SISTERS SPORTSWEAR CO.
United coordinates the production by making purchases on
behalf of Bedford, Three Sisters, and Skylight, paying for ac-
counting services for these companies, and paying for var-
ious joint insurance policies which cover all of these entities.
Additionally, at times, United has paid rent on behalf of
Three Sisters.
Moreover, Beirel Jacobowitz admitted to employee
Galarza that Three Sisters and United were the ‘‘same
thing,’’ as well as the fact that Metropolitan Industries was
‘‘another of the names that the company had.’’ NLRB v.
Edwin R. O’Neill, 140 LRRM 2557, 2563 (9th Cir. 1992).
In this connection, it is also noteworthy that David
Jacobowitz signed an insurance document stating that Bed-
ford, Three Sisters, and United ‘‘are interrelated, located on
the same premises and have the same officers,’’ and that the
accountant for all of these corporations designated United
and Skylight as affiliates, to designate related party trans-
actions under IRS rules.
Additionally, United and Skylight use the same computer,
and have been invoiced interchangeably by various vendors.
It was required by creditors of United and Skylight to exe-
cute cross-corporate guarantees before loaning funds to these
companies, which requirements have been complied with by
these corporations.
So, in sum, these companies all serve the Jacobowitz fam-
ily business of producing and selling garments. Imco, supra.
They manufacture the product in an integrated fashion, with
United, Bedford, and Three Sisters as the manufacturing and
production arm and Skylight as the selling arm of the family
business. See Palby Lingerie, 252 NLRB 176, 178 (1988).
Common management and ownership is clear, and is dis-
tributed among various members of the Jacobowitz family,
including two sons-in-law. Indeed, Respondent concedes in
its brief that all the companies are ‘‘owned by the
Jacobowitz family.’’
Although the ownership and management of each Com-
pany may not be identical, where they all include members
of the same family, the requirement of common ownership
and management is met. Vinisa, supra; Crawford Door Sales
Co., 226 NLRB 1144 (1976).
Respondents argue most strenuously that no evidence was
presented that any of the companies are involved in a com-
mon labor relations policy, and that the absence of such a
finding is fatal to a single employer or alter ego determina-
tion. In this connection, Respondent correctly notes that
United and Skylight have no unit employees.
However, although the Board has frequently stressed the
importance of centralized control of labor relations in deter-
mining single employer status, Hydrolines, supra, this factor
becomes less important where some of the companies have
no employees. Imco, supra; see also Goodman, supra. Here
there is evidence of centralized control over labor relations
of the employees of Three Sisters and Bedford, when Bed-
ford had employees. Thus, communications are made by
Beirel and David Jacobowitz to employees and supervisors
by loudspeaker and walkie-talkies from the centralized fifth
floor office to the other two floors and to employees em-
ployed by Three Sisters and Bedford. Additionally, Beirel
travels through the fourth, fifth, and sixth floor giving orders
and directions to employees employed by both of the cor-
porations working on any of those floors. Moreover, the em-
ployees of Bedford and Three Sisters were covered (when
Bedford had employees), by the identical collective-bargain-
ing agreement with Local 17-18. Of course, currently and ap-
proximately since 1989, Bedford has no employees, and all
the employees are now on the Three Sisters payroll, and ob-
viously share a common labor policy. Thus, as to Bedford
and Three Sisters, the common labor relations criteria is sat-
isfied. Because all the other pertinent single employer criteria
are met with respect to Skylight and United, and because
there is no arm’s-length relationship among them, a single
employer finding is warranted, Imco, supra; BMD, supra;
Hydrolines, supra. I so find.
I would also conclude that an alter ego finding as between
these companies is also appropriate, since the criteria in
Fugazy, supra, has been met. There is common management
and ownership; common business purpose; common oper-
ation, premises and supervision; and common customers, i.e.,
the employers constitute the same business in the same mar-
ket. Moreover, I have concluded the purpose behind these
entities operating at 144 Spencer Street was to avoid the
backpay obligations of Southland-Metro. Thus, I conclude
that United, Skylight, Bedford, and Three Sisters are single
employers and alter egos of each other, as well as alter egos
of Southland-Metro, Imco, supra; BMD, supra.
The complaint also alleges that Metro-Sweater is part of
the single-integrated enterprise and should be found to be a
Respondent in the instant case. General Counsel argues that
since Metro-Sweater maintained a bank account until 1987,
and its forms were used by United to purchase goods until
1985, and there is no evidence that the Company is defunct,
Metro-South must be considered to be a part of the single-
integrated enterprise.
However, I need not decide the question of whether
Metro-Sweater is defunct, or is still in existence. Inasmuch
as I have already concluded that Metro-Sweater was part of
the Southland-Metro integrated enterprise, and that the cur-
rent United, Three Sisters, Bedford, and Skylight integrated
enterprise is an alter ego of the Southland-Metro entity, it is
appropriate to include Metro-Sweater as a Respondent herein
and as part of the single employer responsible for the unfair
labor practices that I find below. I note particularly in this
regard, that the Order in the prior case did not include
Metro-Sweater, so it is essential to include that entity as a
Respondent in the event the Jacobowitz family decides to
resurrect that Company and operated under that name once
again.
Turning to 144 Spencer Street Realty Corp. (Spencer), the
complaint, as amended, alleges and General Counsel con-
tends that a single employer relationship also exists between
Spencer and the other entities involved. Respondent urges
that since Spencer is involved in real estate ownership and
management, a business ‘‘totally and completely’’ removed
from that of the other companies, a single employer relation-
ship cannot be found. I do not agree. Notwithstanding the
different business purposes between real estate companies
and other types of businesses, a single employer relationship
can be found particularly where there is evidence of a lack
of an arm’s-length relationship between the entities. G.
Zaffino & Sons, Inc., 289 NLRB 571, 577 (1988), Fullerton
Transfer & Storage, 291 NLRB 426 (1988), Capitol Theatre,
231 NLRB 1370, 1374–1375 (1977). Here, the evidence sup-
porting the lack of an arm’s-length relationship between the
parties is substantial.
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 Stern is also the aunt of Beirel’s wife.
Spencer shares office space, clerical employees, and ac-
counting services with the other companies. Capital, supra at
1375. Spencer had the identical taxpayer ID number as
Metro-Sweater. Precision Carpet, 223 NLRB 329, 338
(1976). Spencer is managed and owned by various members
of the Jacobowitz family, as is the other corporate entities.
Zaffino, supra; Fullerton, supra. Most importantly, Spencer
never obtained any leases from any of the Jacobowitz-domi-
nated companies, while requiring leases from other tenants in
the building. Additionally, United and Skylight paid no rent
to Spencer, except for the times when United paid rent on
behalf of Three Sisters. Also, there were several months
when Three Sisters and Bedford never paid rent, and these
delinquencies were never satisfied. United made loans of
over $20,500 to Spencer which were not repaid. Most sig-
nificant of all is the sudden unexplained reductions in rent
for Bedford and Three Sisters in October 1987 of 80 and 74
percent respectively. Zaffino, supra; Fullerton, supra. Finally,
the record reveals the commingling of records in the files of
Spencer with those of the other companies.
Based on the foregoing, I conclude that there is ample evi-
dence in the record to support the conclusion that the deal-
ings between Spencer and the other companies cannot be
characterized as being at arm’s-length; Zaffino, supra. Ac-
cordingly, I find that Spencer, is also part of the single-inte-
grated enterprise with and is an alter ego of the other cor-
porations described above; Zaffino, supra; Fullerton, supra;
Capitol, supra.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
As noted above, the prior case revealed extensive animus
towards the employees because of their efforts to support the
ILG. Employee Francisca Aguilar was one of the
discriminatees in the prior case. Her sister Auzencia Lugo,
as detailed above, worked for Southland-Metro and then at
Three Sisters. In 1985, Lugo asked Beirel if she would rehire
her sister, Francisca Aguilar. Beirel informed Lugo to bring
her sister, but to tell her ‘‘not to cause any problems.’’
When Aguilar went to Respondents’ facility, she spoke to
Beirel about a job. Beirel told her that he didn’t want any
more problems and warned her not to get in trouble with the
Union. He added that there was already a good union in and
he didn’t want her to look for another union. Beirel contin-
ued that Local 17-18 is the Union in, and is a good union
and is the union that he wanted.
About 3 weeks after she was rehired, Beirel asked her to
distribute some flyers for Local 17-18 during worktime.
Beirel also gave her $50 to distribute the flyers and $100 to
tell employees that Local 17-18 was a good union and the
employees would always have jobs, and that the other union,
the ILG was also bringing problems.
B. Supervisory or Agency Status
As noted above, Beirel and David Jacobowitz are the chief
operating officials of the Respondents, who hire and fire and
make most managerial decisions. There can be little dispute
that they are supervisors and agents of Respondents and I so
find.
Pablo is the plant manager who reports directly to Beirel
and David. He oversees the operation of 130–150 employees,
consisting of three sections of merrow machine operators,
and one section of singer machine operators. Pablo respon-
sibly distributes the work to section supervisors who in turn
assign work directly to the employees. Pablo also instructs
the section supervisors to move employees from one job to
another or occasionally will make such assignment himself.
He also makes sure that Respondents’ work rules are com-
plied with, makes announcements over the loudspeaker on
behalf of Respondents, and has the authority to grant time
off to employees. Based on the foregoing, I find that Pablo
is a supervisor under Section 2(11) of the Act, BMD Sports-
wear, 283 NLRB 142, 146–147 (1987), or at the very least
has been placed in a position by Respondents that employees
consider him to be their agent. Community Cash Stores, 238
NLRB 265 (1978).
Gary is in charge of supervising 125 floorworkers. He has
signed disciplinary warnings and fired employee Rosita
Chalston. He is clearly a supervisor and agent of Respond-
ents and I so find.
A more difficult question arises with respect to the section
supervisors, Vicky, Faith a/k/a Faye, Lipo Diamond, and
Sarah Stern.18 These individuals have the title of supervisor
and are in charge of the direct assignment of work to from
20–35 employees in the various sections of Respondents’ fa-
cility operating either the merrow or the singer sewing ma-
chines. These individuals also review the quality of the work
performed by these employees, and can require the work to
be redone if necessary. The record also establishes that
Vicky evaluated and hired employee Silvia Silverio without
consultation with any other management official.
Since the possession of any one of the functions enumer-
ated in Section 2(11) of the Act is sufficient to establish
2(11) status, I conclude that Vicky’s authority to hire em-
ployees on behalf of Respondents, with the exercise of inde-
pendent judgment, warrants a finding that she is a supervisor
under the Act and an agent of Respondents; Top Job Build-
ing Maintenance Co., 304 NLRB 902 (1991).
However, as to Sarah Stern, Faye, and Lipo Diamond, the
fact that they are designated as supervisors is not sufficient
to establish their supervisory status, Top Job, supra, nor is
the fact that employees may consider them to be supervisors.
Blue Star Ready-Mix Concrete Co., 305 NLRB 429 (1991).
Although the evidence discloses that these individuals do as-
sign work to employees, check the work of employees, and
on occasion order such employees to redo work, these func-
tions alone are not sufficient to establish supervisory status,
since it is essential to establish that the ‘‘supervisors’’ exer-
cised independent judgment in the exercise of these func-
tions. Clark Machine Corp., 308 NLRB 555 (1992); Top
Job, supra; Blue Star, supra; Cobra Gunskin, 267 NLRB
264, 267 (1983). Accordingly, I conclude that General Coun-
sel has not established that Sarah Stern, Lipo Diamond, or
Faye exercise independent judgment, or that they are super-
visors under Section 2(11) of the Act.
However, that is not the end of the inquiry, since even ab-
sent supervisory status, an employer can be responsible for
the conduct of an employee as an agent, in particular situa-
tions, where under all the circumstances, the employees
would reasonably believe that the employee was reflecting
company policy and acting on behalf of management. United
865THREE SISTERS SPORTSWEAR CO.
19 Being an aunt of Beirel’s wife, which is an additional factor
supporting reasonable belief of employees that she was acting on be-
half of management. United Cloth, supra at 586.
20 As detailed above, Aguilar accepted $150 from Beirel in 1985
for performing such services for Beirel.
21 I note that it was necessary to enforce the subpoena against her
in Federal court, and have her brought to the trial by the Marshall.
Cloth Co., 278 NLRB 583, 586 (1986); EDP Medical Com-
puter Systems, 284 NLRB 1232, 1265 (1987); Wm. Chalson
& Co., 252 NLRB 25, 33–34 (1980); Community Cash,
supra.
Here the activities of Sarah Stern and Lipo Diamond
which are alleged to be violative of the Act, involve their ac-
tions in supervising and correcting the work of Galarza and
Nieves. In these circumstances, it is clear that Respondents
have placed Stern and Diamond in positions where the em-
ployees clearly had a reasonable belief that Stern and Dia-
mond were acting on behalf of management, at least in con-
nection with their supervision and correction of the work of
the employees. Thus, Stern19 and Diamond were acting as
agents of Respondents in these particular areas. Albertson’s,
Inc., 267 NLRB 534 (1983); Quality Drywall Corp., 254
NLRB 617, 620 (1987).
I shall leave the discussion of the agency status of Faye
as well as employee Maria Reina to the evaluation of the
specific unfair labor practices attributed to their conduct.
C. Alleged 8(a)(1) and (2) and 8(b)(1)(A) Conduct
The ILG began their most recent organizing campaign in
December 1988. The ILG representatives would stand out-
side the plant distributing leaflets to employees as they en-
tered and left. In late December 1988, an ILG leaflet had
been hung from the light string near the lunchtable where a
number of employees, including employee Bella Martinez,
were having lunch. Beirel walked by and read the ILG leaf-
let. He then turned around and said to the employees, ‘‘don’t
take those papers—that’s the mafia.’’ This comment is vir-
tually identical to the statements made by representatives of
Respondents in the Southland-Metro case, which were found
violative of Section 8(a)(1) of the Act therein. 260 NLRB at
650, 655. Accordingly, I find Beirel’s remarks herein also to
be violative of Section 8(a)(1) of the Act. Similarly, in
March and April 1989, Beirel on three occasions instructed
employee Carmen Nieves not to take ILG literature or if they
take it, to rip it up, or not to pay attention to the ILG papers.
These remarks are also violative of Section 8(a)(1) of the
Act, and I so find.
In April 1989, Beirel approached Francisca Aguilar in the
plant. He asked her to help him give out leaflets for his
Union (Local 17-18), because the people from the ILG were
there. Beirel added that she should tell the other employees
that his union was good and that they were going to have
a lot of work. Beirel also told Aguilar that he was going to
pay her for helping him, as he had the time before.20 Aguilar
replied that she was not accepting his offer. Beirel re-
sponded, ‘‘you support the other Union. You support the
International. I am not going to trust you anymore.’’ I find
that Beirel’s offer to Aguilar to pay her to assist him in tell-
ing employees that in effect support for Local 17-18 would
result in a lot of work for the employees, constitutes unlaw-
ful promises of benefit to employees in violation of Section
8(a)(1) of the Act, as well as unlawful assistance to Local
17-18 in violation of Section 8(a)(1) and (2) of the Act. I
also conclude that Beirel’s statement to Aguilar that he was
not ‘‘going to trust her anymore’’ because she would not as-
sist him in his attempts to induce employees to support Local
17-18, is a further violation of Section 8(a)(1) and (2) of the
Act. Metropolitan Life Insurance Co., 256 NLRB 626, 633
(1981), and cases cited therein.
In April 1989, Beirel told employees that if the ILG came
in, he would have no problems, he would close the factory.
On approximately 10 occasions during 1989 and 1990, Lugo
heard Beirel tell employees at the factory that he didn’t want
the ILG and that he would rather close the factory down be-
fore the Union gets in. These statements are clear violations
of Section 8(a)(1) of the Act. I so find.
Similarly, in the course of his discharge of employee Bella
Martinez to be discussed infra, Beirel mentioned ‘‘everyone
outside,’’ which I conclude referred to the ILG organizers
then passing out leaflets, and stated that he was going to fire
everyone and close down. I find this statement to be an un-
lawful threat of discharge, as well as a threat to close down,
because of the organizing actions of the ILG, in violation of
Section 8(a)(1) of the Act.
Additionally, on or about November 27, Vicky, whom I
found above to be a supervisor and agent, told employees
that Beirel was going to shut down the factory because of
the other union that wants to get in. I find this statement also
to be violative of Section 8(a)(1) of the Act.
This finding is based on the affidavit of Aura Funez,
which General Counsel introduced into evidence through the
credible testimony of the NLRB representatives, as well as
Funez’ admission that her signature appeared on the docu-
ments. While at the trial, Funez testified that she did not
even recall giving the statement, or recall any of the events
included therein, I do not credit her testimony in this regard,
and find that her professed lack of memory was simply a
ruse to refuse to answer questions. New Life Bakery, 301
NLRB 421 (1991). I conclude that Funez, who was still em-
ployed by Respondents, was so frightened about testifying
against Respondents, particularly in view of the extensive un-
fair labor practices committed by Respondents, that she
chose to simply claim that she did not remember anything
in her statement.21
Based on the above, I conclude that it is appropriate to
consider the affidavit of Funez as substantive evidence, as a
past recollection recorded under Section 803(5) of the Fed-
eral Rules. New Life Bakery, supra. See also Snaider Syrup
Corp., 220 NLRB 238 fn. 1 (1975); Starlite Mfg. Co., 172
NLRB 68, 72 (1968), in which such an affidavit was accept-
ed as substantive evidence even apart from Section 803 of
the Federal Rules.
According to the affidavit of Funez, sometime in Novem-
ber, Maria Reina, an employee from the blind stitch section,
came to her machine during working hours circulating a peti-
tion indicating that the employees do not want to belong to
the ILG. The affidavit adds that Reina told her that the peti-
tion should be signed by those who want to keep their jobs
because Local 17-18 was the union the employees needed to
keep.
Reina was also one of the shop stewards for Local 17-18,
and the record reveals that Respondents permitted her to
866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 Although Funez’ affidavit reflects that Beirel and Supervisor
Faye ‘‘were in the area’’ while Reina circulated the petition, this
statement is not sufficiently precise to establish that Beirel actually
observed or was aware of Reina’s actions in this regard.
23 By reference to 17-18 ‘‘people,’’ the affidavit does not make
clear whether that refers to the representatives or the employees,
who as noted were all shop stewards.
make announcements on behalf of Local 17-18 over Re-
spondents public address system to the employees. General
Counsel argues that Respondents’ action in permitting Reina
to use their public address system, makes her an agent of Re-
spondents. I do not agree.
The test for agency as noted above is whether in all the
circumstances the employees would reasonably believe that
the employee was speaking for management. In my view,
that test is not met, by the mere fact that Reina was allowed
to make announcements on behalf of Local 17-18 over the
public address system. It seems that employees are just as
likely to believe that Reina was speaking on behalf of Local
17-18 when making these announcements, particularly in
view of her position as shop steward for that union. There-
fore, I conclude that the permission to Reina to use Respond-
ents’ public address system is not sufficient in itself to make
her an agent for Respondents, and General Counsel has not
established any other probative evidence,22 that might make
Reina an agent for Respondents with respect to this incident.
Thus, I do not find Respondents to be responsible for
Reina’s conduct in either circulating the petition or threaten-
ing loss of jobs. Therefore, these allegations must be dis-
missed.
Funez’ affidavit also described an incident that occurred
on December 7, 1989. At that time, Funez (who was also
one of Local 17-18’s shop stewards) was called into a meet-
ing at Respondents premises by Javier Jara, a representative
of Local 17-18. Also present were another Local 17-18 rep-
resentative, and four other shop stewards, including Reina
and Arlene. Faye came into the office and asserted that there
was a problem in the factory, and that she had circulated a
petition among the employees because if the other Union
(ILG) got in, she wanted to protect her job, because Beirel
was going to close the factory. One of the Local 17-18 rep-
resentatives said they knew of two or three people who
signed for the ‘‘other union,’’ but he did not know all the
names.
Faye replied that she could try to find out who signed for
the other Union, and suggested that Local 17-18 ‘‘people’’23
do the same. Faye handed the petitions that she and Maria
Reina had circulated to the Local 17-18 representatives, who
replied that they needed help and that the petitions were im-
portant.
General Counsel argues that during this meeting Respond-
ents by Faye violated Section 8(a)(1) of the Act by threaten-
ing plant closure, and Section 8(a)(1) and (2) by offering to
engage in surveillance of employees on behalf of Local 17-
18, and by soliciting on behalf of Local 17-18 a petition
amongst employees, and turning the petition over to Local
17-18 representatives. However, because I have found above
that General Counsel had not established that Faye was a su-
pervisor of Respondents under Section 2(11) of the Act, and
General Counsel has not argued, nor does the record support,
an inference that she can otherwise be found to be an agent
of Respondents, I cannot find Respondents responsible for
her conduct. Accordingly, I am constrained to dismiss these
allegations of the complaint.
This incident also forms the basis for the complaint allega-
tion against Local 17-18, which alleges in substance that
Local 17-18 by accepting Respondents’ offer to engage in
surveillance of Respondents’ employees to learn the identity
of ILG supporters and disclose said information to Local 17-
18, has created the impression among the employees of Re-
spondents that their activities on behalf of the ILG were
being kept under surveillance.
Because I have dismissed the complaint allegations against
Respondents concerning the events of this meeting, because
General Counsel has not established the agency status of
Faye, it follows that the allegations against Local 17-18 must
be similarly dismissed. It is also noteworthy that all the em-
ployees present at this meeting were Local 17-18 shop stew-
ards, so that the discussions about ascertaining the identity
of Local ILG adherents was solely among agents of Local
17-18, without any nonagent employees of Local 17-18 ever
being aware of the discussion.
I also would note that all the evidence with respect to this
issue came from Funez’ affidavit, even though General
Counsel could have adduced such evidence from other wit-
nesses who were present. I would be reluctant to find a vio-
lation against Local 17-18 solely on the basis of the affidavit.
Although, as noted, there is precedent for the reliance on
such evidence, it is questionable whether a violation should
be found based on such an affidavit by itself, where other
probabtive evidence was possible. New Life Bakery, supra.
Finally, I would also observe that Local 17-18 despite its
conflict with the ILG, vigorously pursued the grievances of
known ILG supporters, Nieves, Chalston, and Martinez and
successfully obtained their reinstatement through arbitration.
In such circumstances, it is questionable whether the pur-
poses of the Act would be effectuated by the issuance of an
order against Local 17-18 for a single instance and a rel-
atively minor violation of creating the impression of surveil-
lance.
In April 1989, Beirel approached Nieves at work and
asked her whether she had signed anything for the ILG.
Nieves replied no, although she in fact had signed a card.
Around the same time, Beirel used Nieves to translate for
him in talking with employees Angela Caravallo and Maria
Rivera. Beirel, through Nieves, asked the employees if they
had been visited at home by representatives of the ILG. The
employees replied that they had been visited by no one.
Beirel added that if the ILG came in, he would have no
problems because he would close the factory.
Around the same period of time, Beirel called employee
Gloria Soto into his office and asked her what the ILG of-
fered and whether she had signed for the ILG. Soto denied
signing a card, but added that she liked their benefits.
I find that all of these instances of questioning by Beirel
constitute coercive interrogations under the standards of
Rossmore House, 269 NLRB 1176, 1177 (1984), and that by
such conduct, Respondents have violated Section 8(a)(1) of
the Act. BMD, supra at 156; EDP, supra at 1264–1265.
Soto also testified that on one or two occasions in March
or April, she observed Beirel standing outside the factory
door looking at the ILG representatives handing out leaflets
to employees as they were leaving work. She further testified
that Beirel was standing about 8 feet away from the
867THREE SISTERS SPORTSWEAR CO.
leafletters, but did not testify for how long a period of time
she noticed him observing. Soto also testified that Beirel
does not usually stand at the door when employees leave
work.
General Counsel alleges that because it was not normal
practice for Beirel to stand outside the factory door and ob-
serve employees as they leave, that his conduct herein con-
stitutes unlawful surveillance.
However, it is well settled that where, as here, union activ-
ity is conducted openly at or near company premises, open
observation of such activities by an employer is not unlaw-
ful. Roadway Package Systems, 302 NLRB 961 (1991); Ma-
demoiselle Knitwear, 297 NLRB 272, 278 (1989); EDP,
supra at 1265–1266.
While in some situations, conduct well ‘‘out of the ordi-
nary’’ has been deemed sufficient to transform casual obser-
vation to unlawful conduct, Eddylean Chocolate Co., 301
NLRB 887 (1991); Impact Industries, 285 NLRB 5 fn. 2
(1987), the mere fact that Beirel usually does not stand out-
side the door when employees leave is not sufficient, particu-
larly in view of lack of evidence of ‘‘continuous scrutiny’’
(Impact, supra) of union activity to establish a violation of
the Act.
I shall therefore recommend dismissal of this allegation of
the complaint.
As will be more fully detailed below, on several occasions
between October 1990 and February 1991, Beirel issued in-
structions to Respondents’ mechanic Israel Galarza not to
speak with employee Carmen Nieves because she was trying
to bring in or was a supporter of the ILG. On one occasion,
Beirel accompanied this admonition with a threat to close the
factory, and on another with a threat that if Galarza did not
comply with the order, ‘‘he would be damaged.’’ Addition-
ally, on another occasion, Beirel ordered Galarza not to fix
Nieves’ machine, unless Pablo approved, which was contrary
to past practice, and contrary to the practice concerning other
employees, where machines are fixed at the direct request of
the employee themselves.
I find all of these actions by Beirel, i.e., the admonishment
not to talk to Nieves, the threat to close, the threat that
Galarza would be ‘‘damaged’’ if he did not comply with Re-
spondents’ order not to talk to Nieves, and the order not to
fix her machine unless Pablo approved, to be violative of
Section 8(a)(1) of the Act. Additionally, the order with re-
spect to changing practices with regard to fixing Nieves’ ma-
chine is also violative of Section 8(a)(3) of the Act, as it is
a change in terms and conditions of employment.
During the February 9, 1991 discussions between Beirel
and Galarza about this subject, Beirel told him that he knew
that Galarza was still speaking with Nieves, and that he
knew that Nieves would drive Galarza to the train. Beirel
again forbid Galarza from talking with Nieves because she
was a ‘‘bad woman,’’ and she wanted to get the ‘‘union’’
in. Galarza responded that it seemed that Beirel had a person
who was telling him everything that Galarza did. Beirel did
not respond.
General Counsel contends and I agree that Beirel’s com-
ments to Galarza that he knew that Galarza was still talking
to Nieves and in fact was driving with her to the train, con-
stitutes an unlawful creation of the impression of surveillance
of employees’ union activity.
While there is no evidence that Galarza himself engaged
in any union activities, it is clear as detailed above and
below that Nieves was a leading adherent for the ILG and
that Respondents had unlawfully issued instructions to em-
ployees, including Galarza not to speak with her, because of
her union activities. Therefore, it is also clear that Respond-
ents believed that Galarza was engaged or would be likely
to engage in activities on behalf of the ILG, if and when he
spoke with Nieves. In these circumstances, I conclude that
Beirel’s remarks had the reasonable effect of creating the im-
pression that Respondents were keeping under surveillance
the known or suspected union activities of Nieves and
Galarza, and is violative of Section 8(a)(1) of the Act.
Escada U.S.A., 304 NLRB 845 (1991); Operating Engineers
Local 302, 299 NLRB 245 (1990); Great Dane Trailers, 293
NLRB 384, 385 (1989).
D. Alleged Discrimination Against Carment Nieves
Carment Nieves began her employment with Three Sisters
in September 1987 as a merrow machine operator. She was
hired by Beirel and worked as a pieceworker most of the
time, with an occasional assignment as an hourly paid work-
er from Pablo.
In December 1988, Nieves attended an ILG organizing
meeting at the home of another employee. Nieves signed a
card at that time, and assisted other employees in filling out
their cards. Nieves attended another union meeting in Janu-
ary 1989, wherein she was given authorization cards to dis-
tribute to employees. Thereafter, Nieves distributed and ob-
tained six cards from employees during lunch hour in the
bathroom.
In March 1989, the ILG organizers were distributing leaf-
lets to Respondents’ employees outside the plant. About 5
p.m., as Nieves was preparing to leave, Beirel approached
her and another merrow machine operator. Beirel told them
that the ILG representatives were handing out literature
downstairs, and instructed the employees not to take it or if
they took it to rip it up. Beirel also asked Nieves to stay with
him and transmit this message to other employees in Spanish
for him. Nieves refused telling Beirel that she was going
home. On two other subsequent occasions in late March or
early April, Beirel again instructed Nieves not to pay any at-
tention to the ILG papers and not to take them.
As noted above, I have found that Respondents violated
Section 8(a)(1) of the Act by this conduct as well as by in-
terrogating Nieves and other employees about whether ILG
representatives have visited their home, or signed cards and
by threatening Nieves and other employees with shutdown of
the plant if the ILG were to come into the factory. Beirel
also utilized the services of Nieves to translate to other em-
ployees the threat to close the factory.
In May 1989, Nieves was working on a blind stitch sew-
ing machine, along with seven other of her coworkers. Be-
cause of the difficulty of making the sleeve on that machine,
Nieves after discussing the matter with her fellow employees,
asked Beirel on behalf of all the eight employees for more
money for this work. Beirel agreed to give the employees
extra money, but when they received their paychecks the
next week, the employees believed that the money that they
received was insufficient. The employees then decided to
speak to Beirel, with Nieves as spokesperson. The employees
went as a group to speak to Beirel, and Nieves told him that
868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 Nieves also filed for unemployment insurance and, after a hear-
ing, the administrative law judge at the New York State Unemploy-
ment Insurance Division also credited Nieves and granted her unem-
ployment benefits in a decision issued on February 23, 1990.
he had not kept his word, and the amount of money paid was
too little for the kind of work being performed. Beirel re-
sponded that he could not pay any more, and if anyone was
not in agreement, they could work on the merrow machines.
The next working day, the employees came to work in a
group and asked for their merrow machines. Beirel attempted
to convince them to work on the blind stitch machine, but
Nieves insisted that the employees would not do so without
an agreement for higher wages. Beirel said he would think
about it next week. Nieves replied that the employees cannot
wait until next week. Finally, after initially agreeing to allow
them to work on the merrow machine, Beirel changed his
mind and told the employees including Nieves to go home,
that he had no work for them. The next day, Nieves returned
and asked to be returned to work on the blind stitch machine.
Beirel refused, telling Nieves that she was a troublemaker,
and that she was the one who was instigating the other work-
ers to demand better prices.
Subsequently, Nieves and the other employees spoke to a
representative from Local 17-18 about their discharge. Short-
ly thereafter, Nieves was reinstated by Respondents to her
position as a merrow machine operator.
On November 19, 1989, Nieves made an announcement on
a Spanish radio station in favor of the ILG. In the announce-
ment, Nieves identified herself by name, indicated that she
had signed for the ILG, that Local 17-18 ‘‘was not a real
union,’’ and that the ILG was a ‘‘real union.’’ On November
24, Beirel told Nieves that he had heard her announcement
on the radio. Nieves replied that he (Beirel) doesn’t listen to
Spanish radio, somebody must have told him. Beirel replied
that he had heard it.
Shortly thereafter, in late November, Beirel prohibited
Nieves from translating for other employees to him, as she
had frequently done in the past. In fact, as noted at times
Beirel would use Nieves himself to translate to other em-
ployees. On this occasion, Beirel told Nieves that she had no
business being an interpreter for other employees, told her to
return to work, and added that she (Nieves) was a trouble-
maker. Beirel continued that she ‘‘was causing a lot of trou-
ble in the factory,’’ and that if she wanted to be a lawyer,
she should open up an office.
On or about November 21, an employee was talking to
Nieves about a work-related matter. Beirel approached them
and asked the employee (named Maritza) what she was doing
talking to Nieves. Maritza replied that she was asking about
some sleeves. Beirel instructed Maritza that she was not sup-
posed to talk to Nieves and, if she needed anything, she
should talk to Pablo. A few days later, another employee
came to Nieves’ machine to talk to her about getting paid
for Thanksgiving. At that time, David Jacobowitz came over
and, after asking the employee what she was talking to
Nieves about, took the employee into the office for 10–12
minutes. Prior to these incidents, employees would often
come to Nieves’ machine to talk to her, and Respondents’
officials never complained about this to Nieves or any other
employee. Moreover, other employees also have spoken to
their fellow employees about work-related or other matters
during the course of the workday, without any criticism from
management. Moreover, there is no evidence of the existence
of any rule by Respondents against talking to other employ-
ees during work.
On or about November 28, about 5:05 p.m., employee
Delfia Cajeho was talking to Nieves about the subject of pay
for Thanksgiving. Beirel came over and asked Cajeho what
she was talking to Nieves about and added that she was not
supposed to talk to Nieves. Cajeho replied that it was after
5 p.m. Beirel instructed Cajeho to go to work or go home.
Cajeho responded that if he (Beirel) had a problem with
Nieves, that was between the two of them, but Nieves was
her friend and she would talk to her. Beirel did not respond,
and went back to the office.
A few minutes later, Beirel came to Nieves’ machine, and
told her that he wanted to speak to her in his office because
of the argument between Cajeho and Beirel about Cajeho
talking to Nieves. Nieves replied that she had been instructed
by Pablo to finish a particular bundle. Beirel insisted that she
stop work and accompany him into his office, where David
Jacobowitz was present. David began by telling her not to
scream at him. Nieves shrugged her shoulders and replied
that she had not said a word. David then shook his finger
at Nieves and said, ‘‘You are fired, you are fired, you are
fired.’’ Nieves asked why? At that point, David screamed
and called her a ‘‘son of a bitch,’’ a ‘‘whore,’’ and a ‘‘moth-
er fucker,’’ and told her, ‘‘get out of here, I don’t want to
see you in this factory any more.’’ Nieves felt a knot in her
throat, and asked David what he had said. He repeated what
he said, adding ‘‘that’s exactly what you are, what I said,
you are a son of a bitch, you’re a shit, you’re a whore—get
out of my factory.’’ Beirel then began to scream also, that
Nieves was fired, that she should leave and that she was
fired. At that point, Nieves began to leave, but Beirel crossed
in front of her and blocked her from exiting the office. Ac-
cording to Nieves, she felt it was like a rosary. The
Jacobowitzes kept repeating the same things over and over
again. They were asking her to leave and yet they wouldn’t
allow her to leave.
At that point, David opened the door and yelled to Pablo
that Nieves was fired and he should not allow her to come
to work the next day. David then turned to Nieves and told
her to leave the factory right away, or he would call the po-
lice and have her handcuffed and removed.
Nieves was not allowed to return to her work station to
retrieve her coat and handbag. David instructed Pablo to
bring her belongings, at which time Nieves began to cry. She
asked why she was being fired. David replied that she knew
the reason why.
Subsequent to her discharge, Local 17-18 filed an arbitra-
tion on behalf of Nieves, protesting her discharge. A hearing
was held, and the arbitrator issued his decision on March 24,
1990, overturning the discharge, on technical grounds, but
also crediting Nieves’ version of events as to who used pro-
fane language.24 On April 4, 1990, Nieves attempted to re-
turn to work accompanied by Local 17-18’s business agent,
Javier Jara. Beirel refused to permit her to return to work,
notwithstanding the issuance of the arbitrator’s decision, and
threatened to call the police unless she left the premises.
Finally, after additional efforts on her behalf by Local 17-
18, Nieves was reinstated on May 7, 1990. After Nieves’ re-
869THREE SISTERS SPORTSWEAR CO.
25 Nieves who worked as a pieceworker, would not be paid any
additional money for having to resew the garment.
turn in May 1990, Funez observed Pablo removing an ILG
button from Nieves’ handbag. After her return, however,
Nieves was not assigned to her old machine or her old sec-
tion. Instead, she was isolated from other employees, with
her back to all the other workers, in an area surrounded by
broken or damaged machines which were not being operated.
Previous to her discharge, she was assigned to operate a ma-
chine which was in the midst of other employees on all sides
of her.
When Nieves was hired in 1987, as a merrow machine op-
erator, she had 20 years of sewing experience. Merrow ma-
chine operators are paid on a piecework basis.
Prior to her discharge in 1989, each morning, she would
receive 5 bundles of material, which included 36 pieces to
sew. Generally, the bundles would all be of the same style
and colors. Usually throughout the day, she would receive a
total of 10 or 11 bundles, mostly of the same color. Chang-
ing colors requires the operator to change the threads on the
machine, which causes the operator to spend additional time.
She rarely had to change threads three times a day prior to
her termination.
When she returned to work on May 7. 1990, Nieves was
assigned more difficult work of sewing collars and sleeves,
than she had been receiving prior to the discharge. Addition-
ally, she was given one or two bundles at the start of the
workday rather than the five bundles that she had been re-
ceiving prior to the discharge, and the five bundles that all
of the other machines operators continued to receive at the
beginning of the day on and after May 7. Additionally, after
Nieves completed her two bundles, she received bundles of
different colors which required her to change threads. During
the first week after her reinstatement, everyday her assign-
ments required her to change threads two or three times a
day.
Prior to the termination when she completed her bundles,
she would ask for more work and receive it in 1 or 2 min-
utes. After her reinstatement, it took from 7 to 8 minutes for
her to receive new bundles. Her coworkers, however, contin-
ued to receive new bundles quickly. On a few occasions,
Nieves attempted to pick up the bundles herself, rather than
to wait for them to be brought to her. However, Pablo told
her not to do so, and to go back to her machine and wait
for someone to bring her some work. Additionally, after the
reinstatement, Nieves would frequently receive bundles with-
out threads or without sufficient quantities of labels. After
asking for the threads and labels, and not receiving them
promptly, Nieves would once again attempt to obtain them
herself. However, once more Pablo would tell her that she
was not supposed to move from her machine and should wait
for someone to bring her the threads. These practices have
continued to the date of the hearing. At one point in October
1990, Nieves complained to Pablo that she was losing 15–
20 minutes a day just waiting for bundles and materials.
Pablo replied, ‘‘that’s nothing, that’s nothing for you.’’
Prior to the termination, Nieves’ work was checked by her
immediate supervisor once a day in the morning, as Nieves
was an experienced seamstress. However, after reinstatement,
her immediate supervisor became Sarah Stern, who, as noted,
is the aunt of Beirel’s wife. Stern would constantly be check-
ing her work, on the average of six or seven times in the
morning and about the same number of times in the after-
noon. During the first week after her return, Stern checked
Nieves’ work every 20 minutes. Stern would check each
bundle from the first piece to the last. Her prior supervisor,
Berta, would check only the first piece in each bundle. Fre-
quently, Stern would tell Nieves that the work was not prop-
erly done and ordered Nieves to sew it over again although
the work was competently done.25 Berta, her prior super-
visor, never instructed Nieves to resew her work prior to her
termination.
After her reinstatement, Respondents continued its policy
of forbidding employees to talk to Nieves. On May 8, the
day after her reinstatement, several employees came to
Nieves’ machine to either borrow a pen or discuss work-re-
lated matters. Pablo either personally or over the loudspeaker
would tell these other employees to return to their machines.
In the personal conversations, Pablo asked the employees
what they were doing at Nieves’ machine and what they
were talking about while ordering them back to their ma-
chines. Nieves was the only employee subject to this treat-
ment, as other employees were permitted to talk to fellow
workers at their machines, without Pablo or any supervisor
telling them to return to their machines.
In October 1990, Beirel instructed Israel Galarza, Re-
spondents’ mechanic, not to speak with Nieves because she
was trying to introduce the ILG. Later on in October, Beirel
reiterated the prohibition to Galarza about speaking to Nieves
because she wants to ‘‘get the other union in the factory.’’
Beirel added a threat of plant closure if this occurred. In No-
vember, Beirel instructed Galarza, contrary to past practice,
that he should no longer fix Nieves’ machine on her direct
request, but that Pablo must approve such action. Beirel
added that Nieves ‘‘is a very bad woman . . . she wanted
to hurt him by getting the other union in.’’
Finally, Respondents’ continuing animus towards Nieves
was displayed even during the course of the instant hearing.
Thus, Nieves received a subpoena to appear at the NLRB for
the instant hearing on Monday, June 24, 1991. She notified
Pablo on Friday, June 21 of this fact and he said ‘‘okay,
that’s fine.’’ However, on Monday, she was not called as a
witness and was told to appear on Tuesday, June 25. When
she called Pablo on Monday in the afternoon, he asked her
why she hadn’t been at work. She reminded him that she had
informed him on Friday that she had been supoenaed to ap-
pear at the NLRB. Pablo replied that she had been absent too
many times, and asked her if she was working for Respond-
ents or the NLRB. Nieves responded that it was not her fault.
Pablo answered, ‘‘if you are with them, then you better go
and work for them.’’ He added, ‘‘When she returns, she bet-
ter talk to Beirel.’’
Analyzing the termination under the criteria of Wright
Line, 251 NLRB 1053 (1980), enfd. 662 F2d 899 (1st Cir.
1981), and Transportation Management Co., 462 U.S. 393
(1983), it is clear that General Counsel has established a
strong prima facie case that a motivating factor in Respond-
ents’ discharge of Nieves was her activities on behalf of the
ILG and other protected conduct. Thus, immediately after
Beirel admitted knowledge of Nieves’ ILG support, by tell-
ing her that he had heard her radio broadcast in favor of the
870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 Although the troublemaker remark may also have referred to
Nieves’ previous activities of being spokesperson on behalf of em-
ployees protesting Respondents’ wage policies, this conduct of
Nieves is also protected concerted activity.
27 I note also in this regard the statements made to Galarza by
Beirel wherein he instructed Galarza not to speak to her or fix her
machine on request, because she wanted to hurt Beirel by trying to
get the ILG into the factory.
ILG, he called her a troublemaker,26 refused to allow her to
translate for employees as he had in the past, and isolated
her from her coworkers by ordering other employees not to
talk to her. Four days later, she was terminated. Also, Nieves
was subject to previous interrogations. threats of plant clo-
sure, and unlawful instructions by Beirel not to accept ILG
literature. Indeed, Nieves was used by Beirel to translate
some of his unlawful instructions and threats to other em-
ployees.
Thus, the timing of the discharge, 4 days after the radio
commencement, coupled with the significant animus towards
the ILG in general and Nieves in particular,27 as well as her
protected conduct involving the pricing dispute, establish that
protected activities were motivating factors in Respondent’s
decision to terminate her.
The burden then shifts to Respondents to establish that
they would have taken the same action against her, absent
such protected conduct. Wright Line, supra. Because Re-
spondents have adduced no evidence as to why they dis-
charged her, they have not met that burden.
Moreover, the humiliating manner in which she was dis-
charged, for no apparent reason, and accompanied by a dis-
graceful exhibition of profanity and physically preventing her
from leaving, further reinforces the conclusion that her dis-
charge was violative of Section 8(a)(1) and (3) of the Act.
I so find.
I also find that Respondents’ verbal abuse of Nieves and
their physical prevention of Nieves from leaving constitutes
independent violations of Section 8(a)(1) and (3) of the Act.
Kenrich Petrochemicals, 294 NLRB 519, 534–535 (1989).
Subsequent to her reinstatement, I conclude that Respond-
ents continued their unlawful treatment of Nieves. I note ini-
tially Respondents’ refusal to initially agree to reinstate her
after the arbitration decision, and their threat to call the po-
lice if she did not leave at that time. This is demonstrative
of continued animus towards Nieves, which Respondents fur-
ther manifested by isolating her from other employees, for-
bidding other employees from speaking with her, forbidding
the mechanic to fix her machine on her request, subjecting
her to closer supervision, and giving her difficult, fewer and
slower assignments, which reduced her earning opportunities
in view of her piecework status.
I find that all of these actions were also motivated by
Nieves’ protected conduct, as detailed above. Since once
more Respondents have adduced no evidence as to why they
took any of these actions, they have not met their burden of
proving that they would have acted in the same way absent
her protected activities. Therefore, I conclude that Respond-
ents have further violated Section 8(a)(1) and (3) of the Act
by these actions against Nieves. BMD, supra at 160; Heart-
land of Lansing Nursing Home, 307 NLRB 152 (1992).
E. The Alleged Discrimination Against Bella Martinez
Bella Martinez was hired by Respondents in 1987 as a
merrow machine operator. As noted, in December 1988,
Martinez was present with a group of employees, when
Beirel unlawfully removed an ILG leaflet from the light
cable and instructed the employees not to take these papers
because it was the mafia. In the summer of 1989, on a num-
ber of occasions, Beirel instructed Martinez and other em-
ployees not to accept the ILG literature.
In 1989, Martinez circulated a petition for the ILG among
her fellow employees, which had been given to her by an
ILG representative. Martinez also was given a coffee mug
which prominently displayed the name International Ladies’
Garment Workers’ Union, as well as the statement ‘‘look for
the union label.’’ Martinez kept this coffee mug at her ma-
chine at Respondents’ premises. She would use the mug
while eating lunch at the lunch table, in the presence of
Pablo who would frequently join the employees for lunch at
the same table.
Additionally, Martinez would drink from her mug at her
machine, during which time both Beirel and Pablo would
walk by from 8–25 feet away from her.
On December 1, 1987, the merrow machine operators re-
ceived their pay for the Thanksgiving week. Martinez, as
well as a number of the other operators, discussed among
themselves their mutual dissatisfaction with the amount of
holiday pay that they had received for Thanksgiving. Beirel
came over to the group of employees and asked Martinez
what was the problem. Martinez replied that she was not
happy with the holiday pay, and that ‘‘we had worked all
week long and we hadn’t made money . . . and we were
neither slaves or children to do that.’’ Beirel then told Mar-
tinez that if she didn’t agree with that, she could leave.
Beirel then stated that if Martinez wanted to talk to him, she
should go to the office. Martinez told Beirel to wait a minute
because she was finishing with a part.
Beirel at that point became incensed, came over to her ma-
chine, broke the threads from the machine, and told Martinez
to leave quickly. Beirel then pulled her chair and Martinez’
shoulder causing her to injure her knee. Beirel then pushed
Martinez to the door while screaming and yelling that he
‘‘didn’t want neither insects or roaches there.’’ Beirel added
that he was going to clean the factory and that he was going
to fire everyone outside and was going to close down. He
continued to scream that he was going to close the factory
four or five times. When they reached the door, Beirel told
Pablo that Martinez didn’t respect him and that she should
leave. Beirel would not permit Martinez to gather some of
her belongings such as an umbrella, scissors, and the coffee
mug described above. Shortly after Martinez’ termination,
Funez heard Respondents’ supervisor Vicky tell a group of
employees that Martinez was terminated because she kept a
coffee mug with an ILG insignia at her work station.
At some point after the discharge, Local 17-18 filed for
arbitration protesting the discharge of Martinez. The arbitra-
tor, after a hearing, overturned the discharge and ordered
Martinez to be reinstated.
Respondents adduced no testimony or evidence as to why
they terminated Martinez.
Once more a strong prima facie case that protected con-
duct of Martinez was a motivating factor in her termination
has been established. Respondents argue that no evidence
871THREE SISTERS SPORTSWEAR CO.
28 In 1989, Galarza received a bonus of $2000.
29 As noted above, on occasion Nieves would drive Galarza to the
subway station and drop him off there.
was adduced to show that Respondents were aware of any
union activities on the part of Martinez. I do not agree.
I conclude, contrary to Respondents’ assertion, that they
were aware of the fact that Martinez used a coffee mug with
the name ILG prominently displayed therein. Because Pablo
regularly had lunch at the same table with Martinez and the
other employees when she used the cup, I find it likely that
he observed and read the logo on the cup. I also find it prob-
able that Beirel and Pablo observed her drinking from the
mug while at her machine. Most significantly, I rely on the
admission against Respondents by the statement made by its
supervisor, Vicky, that Respondents terminated Martinez be-
cause of the coffee mug at her work station. This constitutes
an admission establishing knowledge of her union activity, as
well as substantial evidence connecting her discharge to such
activity. Moreover, at the time of the discharge, while Beirel
was ranting and raving, he mentioned the ‘‘people outside,’’
obviously referring to the union representatives outside the
plant distributing literature, and threatened to close the fac-
tory five times. Finally, Martinez was one of the employees
present when Beirel ripped an ILG flyer from the light
string, and unlawfully instructed employees not to accept
these papers, while saying ‘‘that’s the mafia.’’ Based on
these circumstances, an inference is clearly warranted that
Respondents knew or at least suspected that Martinez was a
supporter of the ILG.
Moreover, I also conclude that Martinez’ conduct on the
day of her discharge, of protesting on behalf of herself and
the other employees, Respondents’ holiday pay, and her
statement that the employees were not slaves or children,
constitutes protected concerted activity. Because the dis-
charge itself occurred immediately after the confrontation be-
tween Martinez and Beirel, I find that this activity was a mo-
tivating factor in Respondents’ decision to terminate her.
Based on the animus directed towards the ILG as detailed
above, including the statement made by Nieves, and the close
proximity of Martinez’ discharge to the unlawful discharge
of Nieves, I conclude that Martinez’ activities on behalf of
the ILG was also a motivating factor in Respondents’ deci-
sion to discharge her.
Once again because Respondents have adduced no evi-
dence as to their reasons for terminating her, they have again
failed to meet their Wright Line burden of establishing that
they would have taken the same action against her, absent
her protected conduct. Similarly, as in the case of Nieves, the
evidence that Martinez was discharged for no apparent valid
reason, plus Beirel’s conduct in screaming at her, pulling a
chair out from under her and pushing her at the time of the
discharge, further reinforces my conclusion that her discharge
was violative of Section 8(a)(1) and (3) of the Act.
I also find that as in the case of Nieves, Respondents inde-
pendently violated Section 8(a)(1) and (3) of the Act by ver-
bally abusing and assaulting Martinez because of her pro-
tected activities at the time of the discharge. Kenrich, supra.
F. The Alleged Discrimination Against Israel Galarza
Galarza was employed by Respondents as a mechanic
since 1983, and was responsible for the maintenance of some
300 sewing machines. He was paid $1200 per week, $200
by check and the rest in cash.
In October 1990, Beirel directed Galarza not to speak with
Nieves because she was trying to introduce the ILG. A few
weeks later, Beirel again admonished Galarza not to speak
to Nieves because she wants to ‘‘get the other Union into the
factory.’’ Beirel coupled this remark with a threat to close
if the ILG gets in. In November, while ordering Galarza not
to fix Nieves’ machine unless Pablo approves, Beirel added
that she ‘‘is a very bad woman . . . and wanted to hurt him
by getting the Union in.’’ During this same conversation,
Beirel informed Galarza that he knew that Galarza was still
talking to Nieves and he must stop it. In early December,
Beirel again admonished Galarza about speaking to Nieves,
this time coupling the warning with a threat that Galarza
‘‘would be damaged.’’
Subsequent to this conversation, in December 1990, Sarah
Stern and Lupo Diamond began to consistently criticize
Galarza’s work and require him to fix the machines again,
even though the machine operator was satisfied with the re-
pair and the machine was operating properly. At times, Stern
or Diamond would force him to fix the very same machine
three to five times. Galarza tried to complain to Beirel about
this excessive supervision, but Beirel responded that he was
too busy to speak with him.
Meanwhile, notwithstanding Beirel’s instructions, Galarza
continued to speak with Nieves about personal or job-related
matters, although they had no discussion about Unions.
On December 20, 1990, Beirel notified Galarza that he
would receive no yearend bonus and his pay would be re-
duced from 15 to 20 percent. Galarza went home sick when
Beirel notified him of these matters. Beirel called Galarza at
home and convinced him to return the next day in return for
the payment of $1000 of his bonus payment.28 Respondents
did not cut Galarza’s pay at that time, despite Beirel’s threat
to do so.
In February 1991, Beirel informed Galarza that he knew
that he was still talking and driving with Nieves,29 and that
Beirel ‘‘forbid it’’ because Nieves ‘‘is a bad woman,’’ and
was trying to get the Union in.
On Friday, March 1, 1991, Respondents finally carried out
their threat to reduce Galarza’s salary. He was given a check
for $625, which amounted to a reduction from $740 (which
includes $260 in deductions from his previous nonpayroll
compensation of $1000). When Galarza protested this reduc-
tion, Beirel agreed there was a mistake, took the check, and
returned with another check for even less money $543 and
gave it to Galarza. Galarza threatened to expose Respondents
to the Labor Department. Subsequently, Galarza agreed to
voluntarily resign, in exchange for being paid his full salary
for that week plus 1 week’s severance pay. Galarza signed
a letter that he voluntarily resigned.
Respondents contend initially that the allegations with re-
spect to Galarza should all be dismissed based on Galarza’s
alleged lack of credibility. I do not agree. While Respondents
do point to some minor contradictions between his testimony
and that of Nieves, I found Galarza to be a candid and be-
lievable witness, and my factual findings detailed above are
based primarily on such credited testimony, which I note has
not been contradicted, challenged, or denied by any witness
of Respondents. Moreover, Respondents have adduced no
evidence or witnesses as to why they took any of the above-
872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
detailed actions against Galarza, including particularly the
change in supervision, cutting of his bonus, or the reduction
of his salary.
In applying the Wright Line criteria to these changes in
Galarza’s working conditions, I conclude that General Coun-
sel has established that protected conduct was a motivating
factor in these actions. In this regard, I note that despite the
lack of evidence that Galarza himself engaged in any union
or protected activities, it is clear that Respondents perceived
him to be a friend of Nieves. Thus, Respondents have con-
stantly admonished Galarza for violating their previous in-
structions (which I have previously found unlawful) not to
speak to Nieves, while accompanying these admonishments
with references to Nieves’ activities on behalf of the ILG. It
is well settled that adverse action against an employee who
is not known to have engaged in Union activity, but who has
a close relationship with a known union adherent may give
rise to an inference of discrimination. BMD, supra at 143;
Permanent Label Corp., 248 NLRB 118, 136 (1980), enfd.
657 F.2d 512 (3d Cir. 1981). Thus, action taken by an em-
ployer motivated by an employer’s belief or suspicion than
an employee engaged in union activity violates the Act.
BMD, supra; S&R Sundries, 272 NLRB 1352, 1356–1357
(1984).
I have already concluded that Respondents by their dis-
charge of Nieves (a leading adherent for the ILG), as well
as by their subsequent unlawful treatment of Nieves after her
reinstatement, including their unlawful instruction to employ-
ees not to speak with her, violated Section 8(a)(1) and (3)
of the Act.
I conclude therefore that because Galarza disobeyed these
unlawful instructions and continued to converse with Nieves,
that Respondents believed that Galarza as a result of his rela-
tionship with Nieves, was also an adherent of the ILG. I also
find that based on the timing of the adverse actions, concur-
rently with or shortly after Respondents’ continued unlawful
admonishments to Galarza not to speak with Nieves, and the
other unfair practices found against Respondents, most par-
ticularly the discrimination against Nieves, that Respondents’
closer supervision of Galarza, and their decision to reduce
his bonus and cut his pay, were motivated by their belief that
Galarza as a result of his association with Nieves, was also
a supporter of the ILG.
Once again, because Respondents have adduced no evi-
dence that any of these actions would have taken place, ab-
sent their perception of Galarza’s support for the ILG, they
have violated Section 8(a)(1) and (3) of the Act. I so find.
I also conclude that the changes instituted in Galarza’s
working conditions, i.e., the closer supervision, reduction of
his bonus, and most significantly the substantial reduction of
his salary, were so intolerable so as to force Galarza to re-
sign, and that Respondents would reasonably have expected
Galarza to quit as a result of these changes. In these cir-
cumstances a finding of constructive discharge is warranted.
Algreco Sportswear Co., 271 NLRB 499, 500 (1984); Mfg.
Services, 295 NLRB 254, 255 (1986); Bronx Metal
Polishing, 276 NLRB 299, 304–305 (1985); BMD, supra at
160–161.
Thus, the changes in working conditions made Galarza’s
continued employment with Respondents untenable and com-
pelled his resignation. The foreseeability of his resignation,
coupled with Respondents’ animus, combines to support a
finding that this was the intended result of Respondents’ con-
duct. BMD, supra, Bronx Metal, supra.
Accordingly, I conclude that Respondents have violated
Section 8(a)(1) and (3) of the Act by constructively discharg-
ing Galarza.
G. Alleged Discrimination Against Rosita Chalston
Rosita Chalston was hired by Respondents in March 1989
as a floorworker. She worked on the fifth floor at 144 Spen-
cer Street under the supervision of Gary. In early November
1989, Chalston received a petition from a representative of
the ILG, and was asked to obtain signatures from employees
on said petition. The petition reads, ‘‘we the workers of
Three Sisters, signing this petition wish to be represented for
collective bargaining with our Employer by the International
Ladies Garment Workers Union.’’
On November 13, 14, and 15, Chalston during lunch hour
solicited employees to sign the petition. Chalston signed the
petition first, explained the purpose of the petition, and ob-
tained the signatures of some 14 other employees. On No-
vember 15, Arlene, one of the shop stewards for Local 17-
18 was walking around in the lunch area, during lunchtime
when Chalston solicited signatures from employees.
Around 4:30 p.m. that same afternoon while in the bath-
room, Chalston was approached by employee Cathy Lopez,
who also acts as a translator for Gary in connection with dis-
cussions with employees. Lopez told Chalston that somebody
had informed Gary about the petition. Lopez added that
Chalston was going to be fired.
As she emerged from the bathroom, Chalston observed
Gary talking with Arlene. As Gary and Arlene were looking
at Chalston, Gary nodded his head. At the end of the day,
at 5 p.m., Chalston went to the time rack to punch out, and
noticed that her timecard was missing. She asked Gary,
‘‘Where is my card?’’ Gary replied that she was fired and
that he no longer needed her. She asked why? Gary re-
sponded, ‘‘because I don’t need you anymore.’’ As they
were walking out, Chalston asked for the reasons in writing,
but Gary refused, stating that ‘‘I don’t feel like it.’’
Later that same week, Chalston saw a want ad in the
Spanish-language newspaper ‘‘El Diario’’ for floorworkers
for Three Sisters.
The next week Chalston visited the offices of Local 17-
18. She spoke to Javier Jara, a business representative for
Local 17-18. She explained to Jara that she had been termi-
nated because she had solicited signatures for the ILG. Jara
told her that the ILG wanted to destroy Local 17-18, but he
would not allow it. Jara asked Chalston who else had signed
the petition, but she did not tell him.
Jara then made a telephone call to Respondents, and in-
formed Chalston that she had been absent from work four
times in 8 months. She replied that this was not such a bad
record. Jara told Chalston that he would help her get her job
back, but she would have to sign a warning.
On December 11, Chalston went to the shop with Jara. At
that time she signed a written warning, which had been
countersigned by Gary.
In this connection, Chalston was never spoken to by man-
agement officials about any of the four absences over an 8-
month period. On each of the absences, Chalston called Re-
spondents and notified Gary that she was not going to be in
that day.
873THREE SISTERS SPORTSWEAR CO.
30 Apparently at this time there was some sort of an ‘‘affiliation’’
vote pending involving Respondents’ employees, Local 17-18 and
the ILG. The record is not clear as to the precise nature of the vote,
or who was conducting said vote, but it appears that it was not the
NLRB because the petitions filed with the Board by the ILG has not
resulted in any election being scheduled.
31 On March 30, 1990, the Regional Director issued an order con-
solidating cases and consolidated complaint alleging, among other
violations, that Respondents violated Sec. 8(a)(1) and (3) of the Act
by issuing a warning to and discharging Chalston in December and
November, respectively.
32 The group of employees with less seniority than Chalston, also
included 7 of the 10 employees who were cutting threads on May
13, and who were originally told to leave, but continued to work that
day.
When Chalston returned to work on December 11, she no-
ticed 26 to 27 new employees working on the floor, who had
not been employed by Respondents prior to her termination
on November 13.
After she returned to work on December 11, Chalston so-
licited employees to sign authorization cards for the ILG at
lunchtime near the lunch table.
Sometime, in late December 1989 or early January 1990,
Chalston was approached by Maria Reina. Reina was a
merrow machine operator, who as noted was also one of the
shop stewards for Local 17-18. Previously, Respondents had
permitted Reina to make announcements over the then public
address system concerning Local 17-18 matters. Some of the
announcements referred to the need to support Local 17-18
and that employees would have to be united.30 Funez in her
affidavit recalls someone made an announcement over Re-
spondents’ loudspeaker, who she did not know, in support of
Local 17-18.
On the date of this conversation, Chalston observed Reina
go into Beirel’s office and remain there speaking with Beirel
for 45 minutes. When Reina emerged from Beirel’s office,
she approached Chalston at her machine. Reina told Chalston
that she was too smart to be collecting signatures for the
ILG, and if Beirel found out about it, she could be fired.
On January 19, 1990, after Chalston punched in at 8:03
a.m., Pablo grabbed her card, scratched out the punch, and
said ‘‘no more work.’’ Chalston asked if it was because she
missed days, and added that she and her husband had called.
Pablo replied, ‘‘no, no, no more work.’’
At that point, Chalston went to see Beirel, and told him
that Pablo had fired her. Chalston explained that her child
had been sick and that she had doctor’s notes to prove it,
which she showed to Beirel. Beirel replied that her child was
always sick. Chalston offered to go on piecework. Beirel re-
fused this request and told her to go home, take care of her
child, and return to work on February 15, 1990.
On February 15, as ordered by Beirel, Chalston returned
to Respondents’ premises. She saw Beirel and asked if he
had work for her. He replied, ‘‘Yes, no problem.’’ At that
moment, Barbara, Beirel’s secretary asked to speak to Beirel,
and showed Beirel some papers. When he returned, Beirel in-
formed Chalston that he was not going to permit her to re-
turn to work. Beirel told her that he would ‘‘see you in court
because you put me into something this big.’’ The ILG filed
amended charges with the Board, dated January 31, 1990.
Prior charges filed with the Board in Case 29–CA–14495 on
November 24, 1987 had made specific reference to
Chalston’s termination on November 15, 1989.31
Subsequently, Local 17-18 filed for arbitration on behalf
of Chalston, resulting in her reinstatement on March 4, 1991.
On her first day back to work, after an hour of work, Gary
issued her a warning for speaking to other employees. The
warning was for constantly talking to other workers.’’ No
other employees received such a warning, and with the ex-
ception of the above-described incidents regarding employees
talking to Nieves, there is no evidence of any incidents of
employees being told not to talk to other employees. As
noted above in connection with Nieves, employees are con-
stantly speaking to one another during the course of the
workday, and are neither spoken to or disciplined about such
activittes. Moreover, Chalston’s unrebutted testimony estab-
lish that she had not been speaking to anyone in the hour
that she had been working on that day.
After her reinstatement on March 4, 1991, and until Gary
was replaced as supervisor by Asken Doug in May 1991,
Gary began to supervise her more closely. Whenever
Chalston would lift up her head from her work cutting
threads to look around, Gary would clap his hands, and she
would lower her head. Gary would do this about five times
per day. He had never clapped his hands in this manner prior
to Chalston’s termination.
Chalston worked on March 4 and 5, and was told at the
end of the day that there was no more work for her and not
to come in on March 6, the next workday. Chalston worked
a total of 3-1/2 days during the first week after her reinstate-
ment, thereby losing 1-1/2 days of work. She was told by
Gary that there was no work cutting threads. Chalston testi-
fied that other employees performing the cutting of threads
during that week were also told not to come in because there
was no work. Although other employees cutting threads were
also told not to come to work, employees performing
ticketing, and putting clothes on hangers were not laid off,
even though Chalston had performed that work in the past.
At least 10 of the floorworkers who were not laid off, and
who were performing work such as ticketing and hanging,
had less seniority than Chalston.
In May 1991, Gary was replaced as supervisor of the floor
employees by Asian Doug. On May 13, 1991, work was
slow cutting threads, so Doug assigned Chalston to ticket
garments. At 10 a.m., while Chalston was ticketing garments,
she observed Beirel speaking with Doug at the same time
that they looked in her direction. Immediately after the con-
versation between Beirel and Doug, Doug reassigned
Chalston to work on threads. In the late morning, Chalston
and 19 other employees who had been performing thread cut-
ting were told that there was no more work for them, and
to call Respondents on May 20 to see if there is work avail-
able. As Chalston was leaving work at 12:30 p.m., she no-
ticed that 10 employees out of the 20 employees who had
been cutting threads, were still working.32 On May 15 and
16, Chalston returned to the shop, and again noticed that the
less senior employees, including the seven threaders whose
layoff had been retracted, were still working for Respond-
ents, performing jobs that Chalston had performed in the
past.
Chalston called on May 20 as instructed and was told by
Asian Doug to report on May 21 and she worked on May
21, 22, and 23. On May 23, Chalston was informed that
874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
33 I need not decide specifically whether Arlene, Lopez, or some-
one else informed Respondents about Chalston’s activities. I merely
conclude based on the above factors that Respondents became aware
of Chalston’s activities on behalf of the ILG before it discharged her
on November 15, 1989.
34 I would also note that the ILG filed a charge with the Board
on November 24, 1989, in Case 29–CA–14905, alleging that Re-
spondents terminated Chalston on November 15 because of her
there was no work for her for Friday, May 24. On that day,
when she received her paycheck, she and another employee
complained to Doug about the fact that less senior workers
were being permitted to remain at work. Doug replied, ‘‘For-
get it, I know what I am doing.’’ Chalston worked the next
week, and on Monday, June 3. At that time, she was laid off
until June 10, when she returned to work.
In assessing whether General Counsel has met its Wright
Line burden, it is essential that part of that burden include
proof that Respondents had knowledge of the union activities
engaged in by Chalston at the time of various alleged dis-
criminatory acts taken against her. However, it is well estab-
lished that ‘‘knowledge may be proven by circumstantial evi-
dence from which a reasonable inference may be drawn. . . .
Such circumstances may include proof of knowledge of gen-
eral union activity, the employer’s demonstrated animus, the
timing of the discharge, and the pretextual reasons for the
discharge asserted by the employer.’’ BMD, supra at 142–
143.
Turning to the initial termination of Chalston, the evidence
discloses that she was terminated on November 15, 3 days
after she began soliciting employees to sign an ILG petition,
and the same day that she was observed doing so by Arlene,
a shop steward for Local 17-18, and told by Cathy Lopez
who translates for Respondents, that someone had informed
Gary about the petition and she was going to be fired. Gen-
eral Counsel and the complaint alleges that Arlene and Lopez
are both agents of Respondents, and seeks to attribute knowl-
edge of Chalston’s union activities through these individuals
to Respondents. I do not believe that General Counsel has
adduced sufficient evidence that either Lopez or Arlene is an
agent of Respondents, but I nonetheless am convinced that
an inference that Respondents became aware of her protected
activities prior to the November 15 termination is warranted.
Thus, I have found that Respondents have violated Section
8(a)(1) and (3) of the Act by numerous acts of interrogations,
threats, promises of benefit, creating the impression of sur-
veillance, and the unlawful discharges of and other discrimi-
natory conduct towards Nieves, Martinez, and Galarza in or
about the same period of time. In addition, based on these
violations it is clear that Respondents had general knowledge
of employees’ union activity. BMD, supra. I also conclude
that the reason asserted by Respondents to Chalston for the
initial discharge, that she ‘‘was not needed anymore’’ is
clearly pretextual, inasmuch as Respondents were constantly
hiring employees and had an ad in the paper for new em-
ployees at the time that it allegedly did not ‘‘need’’
Chalston. Moreover, when the Local 17-18 representative
called Respondents, it appears that he was given a different
and another pretextual reason for the discharge. Thus, it ap-
pears that he was given a reason of four absences over an
8-month period, which does not seem to be the real reason
for Respondents’ actions, since Chalston always called to no-
tify Respondents about her absence, and she was neither spo-
ken to nor warned about her absences by Respondents’ offi-
cials.
These factors, coupled with the timing of the termination,
coming on the same day that Chalston was observed solicit-
ing for the ILG by a shop steward for Local 17-18, the
Union favored by Respondents, as well as Chalston being in-
formed by an employee that Respondents had been notified
of her activities and that she would be fired, permits an in-
ference which I drew that in fact Respondents were told
about and were aware of Chalston’s union activities prior to
her discharge.33
Therefore, particularly in light of the absence of any legiti-
mate basis for the discharge, BMD, supra, I conclude that
General Counsel has established a prima facie case of dis-
crimination with respect to Chalston’s discharge on Novem-
ber 15. Since Respondents have presented no evidence of
why it terminated her on that day, they have not met their
burden of demonstrating that the discharge would have oc-
curred even in the absence of her protected conduct, and
have therefore violated Section 8(a)(1) and (3) of the Act.
Turning to the written warning on December 11, I have
found that Chalston signed this document, as a result of
Jara’s successful efforts to obtain her reinstatement. Since I
have found the discharge itself on November 15, allegedly
for the same pretextual reason, i.e., absences, to be unlawful,
it follows that the warning that she was compelled to sign
as the price of her reinstatement from this unlawful discharge
is also unlawful. I so conclude, particular where once again
Respondents have adduced no evidence as to why they
issued the warning, or whether they would have taken the
same action absent Chalston’s union activities.
As to Respondents’ decision to lay Chalston off, on Janu-
ary 19, 1990, it is noted that she continued her activities on
behalf of the ILG, even after her reinstatement on December
11, 1989, as a result of the efforts of Local 17-18. Respond-
ents’ knowledge of this activity is in part dependent on the
agency status of Maria Reina. Although I have concluded
above that the mere fact that Reina was permitted to use Re-
spondents’ loudspeaker to make announcements on behalf of
Local 17-18 is not sufficient in itself to make her an agent
of Respondents, that finding is not dispositive of her status
in this instance. Thus, I have found that Chalston observed
Reina talking to Beirel in Beirel’s office for 45 minutes. Im-
mediately thereafter, Reina approached Chalston and told her
that she was too smart to collect signatures for the ILG and
if Beirel discovered this, she could be fired. In these cir-
cumstances, I conclude that coupling these events with the
loudspeaker permission and the fact that Reina’s statements
mirrored similar remarks made by Beirel to other employees,
tips the scale in favor of concluding that Chalston could rea-
sonably construe Reina as speaking on behalf of Respondents
with respect to these statements to Chalston. EDP, supra;
Wm. Chalston, supra; Community Cash, supra. Therefore, it
is appropriate to infer that Respondents become aware of
Chalston’s continued union activity between December 11,
1989, and January 19, 1990, when she was laid off.
However, even absent a finding of the agency status of
Reina, I would still conclude that General Counsel had estab-
lished a prima facie case that her layoff on January 19, 1990,
was motivated by her union activity. Thus, Respondents’ pre-
vious knowledge of her support for the ILG which resulted
in her initial discharge on November 15,34 coupled with the
875THREE SISTERS SPORTSWEAR CO.
knowledge of her support for the ILG by Respondents prior to the
January layoff, as well as the unlawful warning issued on December
11, 1989, as detailed above.
other contemporary unfair labor practices involving the other
employees, is sufficient to so conclude, particularly where
once again Respondents purported explanations do not with-
stand scrutiny. Thus, initially when Pablo notified Chalston
of her layoff, he told her that there was ‘‘no more work’’
for her, which was clearly not the case, and was contradicted
by Beirel who told her that she was merely laid off for a
month, ‘‘to take care of her sick child.’’ Although Chalston
had missed 2 days of work because of the sickness of her
child, she had called in pursuant to company procedure to
notify Respondents. Therefore, a finding is warranted that a
motivating factor in the layoff of Chalston on January 19
was her activities on behalf of the ILG. Once again, Re-
spondents have adduced no evidence as to why they laid her
off on that date, and have not therefore met their burden of
demonstrating that they would have laid off Chalston, absent
her protected conduct. Therefore, they have violated Section
8(a)(1) and (3) once again.
On February 15, Chalston reported to work as initially or-
dered, at the conclusion of the 4-week layoff. Beirel, on Feb-
ruary 15, after agreeing to allow her to return to work, on
that date, changed his mind after reading some papers given
to him by his secretary.
Since an amended charge was filed on January 31, 1990,
I infer that Respondents received this document or some
other Board document on February 15, which caused Beirel
to change his mind about her recall, particularly since Beirel
told Chalston that he would see her ‘‘in court’’ because she
put him ‘‘into something big.’’ These facts are sufficient to
establish a prima facie case, that Respondents’ decision to
refuse to recall Chalston on February 15, 1990, as they pre-
viously had agreed, was motivated by her. Because an
amended charge was filed on January 31, 1990, I infer that
Respondents received this document or some other Board
document on February 15, which caused Beirel to change his
mind about her recall, particularly since Beirel told Chalston
that he would see her ‘‘in court,’’ because she put him ‘‘into
something big.’’ These facts are sufficient to establish a
prima facie case, that Respondents’ decision to refuse to re-
call Chalston on February 15, 1990, as they previously had
agreed, was motivated by her union activities, as well as the
fact the charges had been filed on her behalf at the NLRB.
Because, once more, Respondents have not been given an ex-
planation as to why they took this action, they have again
not met their Wright Line burden that they would not have
recalled her on February 15, absent her protected conduct.
Therefore, by this action, Respondents have violated Section
8(a)(1), (3), and (4) of the Act. I so find.
Chalston was finally recalled on March 4, 1991, after an
arbitration award ordering her reinstatement. An hour after
she commenced work on that day, she was issued a written
warning for ‘‘constantly talking with other workers.’’ Be-
cause the only other instance in the record of employees
being told not to talk to other employees was the unlawful
instructions issued by Respondents that employees not speak
to Nieves, and Chalston spoke to no one at all during the
hour that she was working, I find the purported reason for
this warning to be clearly pretextual. Coupling this with the
previously found discrimination against Chalston and the
other employees, a finding is warranted that Respondents’
issuance of the warning on March 4, 1991, was motivated by
both her activities on behalf of the ILG as well as the fact
that charges were filed on her behalf with the NLRB. Be-
cause once more Respondents have failed to adduce any evi-
dence of their reasons for the warning they have not met
their Wright Line burden and have violated Section 8(a)(1),
(3), and (4) of the Act.
From March 4 to the date in May when Gary was replaced
as supervisor by Asian Doug, Gary would supervise Chalston
more closely, by clapping his hands whenever she would
raise her head. Because this humiliating procedure had never
been utilized by Gary, prior to her reinstatement, based on
the above discrimination against Chalston, I conclude that
again a prima facie case has been established that this action
of Respondents was motivated by her as activities on behalf
of the ILG, as well as the filing of Board charges on her be-
half. Respondents’ failure to offer any evidence of why they
engaged in this practice, once more leads to the conclusion
which I make, that they have failed to meet their Wright Line
burden and have thereby violated Section 8(a)(1), (3), and (4)
of the Act.
Between March 6 and 8, Chalston was laid off for a total
of 1-1/2 days. She was also laid off for part of the day on
May 13 and June 3, and on May 14, 15, 16, 17, and 20 and
June 4 through 7. On each of these days, the evidence does
disclose that Respondents also laid off other employees per-
forming threading, which was the work being performed by
Chalston at the time. However, Chalston had also performed
other types of floorworkers’ work such as ticketing and
hanging garments in the past. Employees performing these
tasks were not laid off during the days that Chalston was laid
off, notwithstanding the fact that Chalston had more seniority
than many of these employees who continued to work.
Respondents’ conduct in connection with the layoff on
May 13 is particularly revealing and leads me to conclude
that they signaled out Chalston for inclusion amongst the
employees in all of the above-described layoffs for discrimi-
natory reasons.
Thus, Supervisor Doug had on May 13, reassigned
Chalston from cutting threads to ticketing garments. At 10
o’clock that morning, Chalston observed Beirel speaking
with Doug and looking in her direction. Immediately there-
after, Doug reassigned her to cutting threads, and at 12:30
that day, the threaders were laid off. I find this sequence,
particularly in the absence of any explanation for the reas-
signment of Chalston back to cutting threads, to be demon-
strative of an intent by Respondents to make sure that
Chalston was included in any possible layoff. I further find,
that in view of the sordid history of Respondents’ continuing
discrimination against Chalston, from her November dis-
charge, her December warning, her January layoff, the Feb-
ruary refusal to recall, to the appalling practice of Pablo
clapping his hands whenever Chalston looked up from her
work, the reason for Respondents’ action was Chalston’s pro-
tected conduct. I also note in this regard the fact that as to
this May 13 layoff, half of the 20 threaders who were origi-
nally told of their layoff, apparently were not laid off, and
continued to work, while Chalston was laid off. This group
of 10 threaders who continued to work, included 7 employ-
ees with less seniority than Chalston. Finally, Chalston also
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was more senior than many other floorworkers who were not
laid off during any of the intermittent layoffs of Chalston in
March through June, even though Chalston had frequently
performed other floorworker tasks such as ticketing and
hanging. Indeed, as noted, she was performing ticketing on
the morning of the May 13 layoff, before being reassigned
to threading, as I have found make sure that she was in-
cluded in the group of employees to be laid off.
Accordingly, based on the foregoing, I conclude that Gen-
eral Counsel has established that a motivating factor for all
the intermittent layoffs detailed above, from March through
June of Chalston, was Chalston’s protected activities. Inas-
much as once again Respondents have provided no expla-
nations as to why they were so anxious to include Chalston
in the layoffs, or any other evidence as to why she was laid
off, while more senior employees were retained, they have
not met their burden of establishing that they would have
taken the same action against Chalston absent her protected
conduct. Therefore, I find that Respondents have thereby vio-
lated Section 8(a)(1), (3), and (4) of the Act.
H. The Alleged Discrimination Against Silvia Silverio
Silvia Silverio, after answering an ad in the newspaper,
was hired by Respondents on April 18, 1991. When she ar-
rived at 144 Spencer Street, she reported to the fifth floor
where she was given a written application to fill out. The ap-
plication called only for her name, address, and social secu-
rity number, and did not request any information as to where
Silverio had previously worked.
After Silverio completed the application and answered all
the questions included therein, she was asked by Vicky to
operate Respondents merrow machine for 1 hour. She com-
pleted work on a blouse, performing work on the shoulders,
sleeves, and cuffs. After completing work on the blouse,
Vicky told Silverio that she was a very good worker, and of-
fered her a job as a pieceworker, starting on Monday, April
22, 1991. Neither Vicky nor any other official of Respond-
ents asked Silverio where she had worked before.
In fact, Silverio had worked at a company called Rubies
Costume, located at 120–08 Jamaica Avenue. At Rubies,
Silverio had been involved in an ILG organizing campaign,
and had signed up 70–75 employees for the ILG and was a
member of the ILG organizing committee. Silverio was ter-
minated on March 8, 1991. Subsequently, pursuant to
charges filed by the ILG, a complaint was issued by the Re-
gion alleging that Silverio as well as a number of other em-
ployees were discriminatorily discharged because of their ac-
tivities on behalf of the ILG. The trial in that case was
scheduled to be heard on October 31, 1991.
On Monday, April 22, 1991, Silverio reported to work em-
ployees for Respondents as scheduled. Vicky explained to
her that Respondents’ work on a piecework system for the
merrow machine operators, and that the employee is given
bundles to work on, with each one containing a ticket. The
employee on each Monday, was supposed to hand in all the
ticket for each item that the employee completed to the of-
fice, so that their pay could be computed. Because Silverio
started work on Monday, April 22, she was told to keep all
her tickets for that week, and turn them in to the office on
April 29, the next Monday.
Silverio worked for 3 days, April 22, 23, and 24, during
which time Vicky was constantly complimenting her on the
quality of her work, and told her two or three times a day
that she was a very good machine operator, and she was
doing a good job.
On Wednesday, April 24, at 4:30 p.m., Silverio was sum-
moned to the office over the loudspeaker. She was spoken
to by a secretary, and asked where she worked before
Silverio did not tell the secretary that she worked at Rubies,
because she feared that her ILG support would be disclosed
if Respondents called Rubies. Therefore, she told the sec-
retary about her prior job at Signe Star located at 523 Kent
Avenue.
The next day, Silverio was again summoned over the loud-
speaker by the same secretary. The secretary asked why
Silverio hadn’t told her that she (Silverio) had worked at Ru-
bies Costume. Silverio replied that she didn’t work at Ru-
bies. The secretary responded that yes Silverio had worked
at Rubies and told Silverio to give her Silverio’s job tickets.
Silverio replied that she didn’t have them with her, and the
secretary instructed her to bring them the next day.
The next day, April 26, Silverio worked until 4:30 p.m.,
when she was again summoned to the office over the loud-
speaker, and then was asked by the secretary for her tickets.
Silverio gave the secretary her tickets as instructed. The sec-
retary told her that she ‘‘didn’t have more work there.’’
Silverio went back to her machine to finish the bundle that
she was working on. The secretary immediately called her
into the office, and said to Silverio, ‘‘I told you that you
don’t have more work here. I told you to leave.’’ Silverio
replied that she was finishing a bundle for which she had al-
ready given the ticket to Respondents. The secretary repeated
that Silverio must leave because she didn’t have any more
work here. The secretary gave Silverio her check and told
her, ‘‘get out of here, get out of here.’’ The last conversation
between Silverio and the secretary occurred in the presence
of other supervisors of Respondents in the office.
Silverio never told anyone at Respondents that she had
worked at Rubies. However, starting on April 22, Silverio
had been carrying in her work bag a copy of her 1989 tax
return which included a W-2 form from Rubies. She had in-
tended to apply for food stamps, which is why she was car-
rying these items with her in her work bag.
After her termination from Respondents, she decided not
to apply for food stamps, so she placed her work bag in a
locked closet in her apartment, until she worked in July
1991. At that point, she looked into her bag and discovered
that her tax form and W-2 form which had been attached to
the return for Rubies, were missing.
Respondents adduced no evidence as to why it terminated
Silverio, nor as to how they found out she had worked at
Rubies, or why they were concerned that she worked there.
Respondents’ attorney in their brief, however, contends that
Silverio was ‘‘discharged for lying on her employment appli-
cation.’’
It is once again necessary to apply the Wright Line criteria
in evaluating the lawfulness of Respondents’ termination of
Silverio. Respondents’ animus towards the protected activi-
ties of their employees is amply demonstrated by the above-
described unfair labor practices that I have found, particu-
larly the discrimination against Nieves, Chalston, Martinez,
and Galarza. The timing of the discharge of Silverio in April
1991, comes in the midst of the continuation of Respondent’s
campaign of discriminatory treatment towards these employ-
877THREE SISTERS SPORTSWEAR CO.
ees. That leaves the question of Respondents’ knowledge of
Silverio’s union activities, concerning which General Counsel
has adduced no direct evidence.
As Respondents point out, General Counsel has not intro-
duced any direct evidence that Respondents knew of
Silverio’s activities on behalf of ILG, while she worked at
Rubies. Indeed, General Counsel has not even directly estab-
lished that Respondents knew that there was any union activ-
ity at Rubies, or that Silverio was a subject of an NLRB
complaint alleging her discharge was motivated by her ILG
activities.
However, as noted above, it is well settled that absent di-
rect evidence, knowledge may be proper by circumstantial
evidence from which a reasonable inference may be drawn.
Some of these circumstances can include employers’ dem-
onstrated animus, the timing of the discharge, and the
pretextual reasons asserted by the employer. BMD, supra at
143; Hunter Douglas v. NLRB, 808 F.2d 808, 814 (3d Cir.
1986); Darbar Restaurant, 288 NLRB 545 (1988); Dr. Fred-
erick Davidowitz, DDS, 277 NLRB 1046, 1049 (1985); Long
Island Airport Limousine, 191 NLRB 94, 95 (1971), affd.
468 F.2d 292, 295–296 (2d Cir. 1972).
Here, there can be no dispute that Respondents found out
about the fact that Silverio had been employed at Rubies,
and that this fact precipitated her termination. Thus, I need
not and do not decide whether or not Respondents found out
by rummaging through her bag, as urged by General Coun-
sel, or by a phone call as suggested by Respondents, or by
some other method.
Respondents contend that Silverio was fired for ‘‘lying’’
about her employment at Rubies. However, initially it must
be noted that Respondents introduced no testimony or other
evidence that Silverio was fired for lying, or why they even
asked Silverio about her prior employment, or why they were
concerned that she may have worked at Rubies. Moreover,
contrary to Respondents’ assertion, Silverio was not told that
she was fired for lying, but that Respondents had no more
work for her, which is clearly a pretextual reason, because
there is no question that there was no shortage of work at
the time, and Respondents concede that lack of work was not
a reason for the termination, by their assertion that she was
fired for lying.
However, Respondents’ assertion that Silverio was termi-
nated for ‘‘lying,’’ even if testimony had been given to sub-
stantiate such a claim, begs the question. Respondents have
adduced no evidence of any legitimate reason as to why they
asked about her prior employment, nor did any supervisor
ask her about it prior to her hire. She performed well on the
test administered to her operating the machine by Vicky, and
was complemented by Vicky regularly on her work quality,
during her 4 days of employment by Respondents.
Accordingly, in view of the animus of Respondents, the
timing of the discharge, and in the absence of any legitimate
basis for Respondents’ concern about Silverio’s employment
at Rubies, I infer that Respondents, when they found out
about her employment there, which they admit, also found
out that the ILG had been organizing there, that Silverio was
a union activist, and that an NLRB complaint had issued al-
leging her discharge to have been in violation of the Act.
BMD, supra; Hunter Dougles, supra; Long Island Limousine,
supra. Therefore, based on the foregoing, a prima case of
discrimination with respect to Silverio has been established.
Inasmuch as Respondents have introduced no evidence to
meet their Wright Line burden, they have not established that
they would have terminated Silverio absent her protected
conduct, and have thereby violated Section 8(a)(1) and (3) of
the Act.
CONCLUSIONS OF LAW
1. Respondents Three Sisters Sportswear Co., Bedford
Cutting Mills, Inc., Three Sisters Apparel, Metropolitan
Sweater Industries, Inc., United Industries, Inc., United Knit-
wear Industries, Ltd., Skylight Fashions, Inc., d/b/a Skylight
Trading and 144 Spencer Realty Co. are single employers
and alter egos of each other, and have been at all times an
employer within the meaning of the Act.
2. International Ladies’ Garment Workers’ Union, AFL–
CIO (ILG) and Local 17-18, Production Workers Union,
AFL–CIO are labor organizations within the meaning of the
Act.
3. Respondents, by ordering and instructing employees not
to accept and to rip up literature from the ILG, referring to
the ILG as the mafia, promising their employees benefits to
assist them in soliciting support for Local 17-18 from other
employees, threatening their employees with discharge, and
closing of the factory if said employees supported the ILG
or if the ILG came into the factory, threatening employees
with unspecified reprisals if they spoke to employees who
supported the ILG, interrogating their employees concerning
their activities and support of the ILG, and creating the im-
pression among their employees that their activities or the ac-
tivities of their fellow employees on behalf of the ILG were
under surveillance by Respondents, have violated Section
8(a)(1) of the Act.
4. Respondents, by promising their employees benefits in
order to assist them in soliciting support for Local 17-18
from other employees, have violated Section 8(a)(1) and (2)
of the Act.
5. Respondents, by on November 28, 1989, verbally abus-
ing, blocking her from exiting, and discharging Carmen
Nieves because of her support for and activities on behalf of
and support of the ILG, and because she engaged in other
protected concerted conduct, have violated Section 8(a)(1)
and (3) of the Act.
6. Respondents, by isolating the work station of Nieves
from that of other employees, instructing their mechanic not
to fix Nieves’ machine at her request, assigning Nieves fewer
bundles than those of other employees, forcing Nieves to
wait longer than other employees to receive new bundles, as-
signing Nieves more complicated work than other employees,
and supervising her more closely, all resulting in a reduction
of earnings for Nieves, and by instructing other employees
not to speak with Nieves, all because of Nieves’ support for
and activities on behalf of the ILG, and because she engaged
in other protected conduct, have violated Section 8(a)(1) and
(3) of the Act.
7. Respondents, by verbally abusing, assaulting, and dis-
charging Bella Martinez on December 1, 1989, because of
her support for and activities on behalf of the ILG, and be-
cause of her exercise of other protected conduct, have vio-
lated Section 8(a)(1) and (3) of the Act.
8. Respondents, by supervising Israel Galarza more close-
ly, reducing his bonus in 1990, cutting his pay in March
1991, by constructively discharging Galarza on March 1,
878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
35 The discrimination against Nieves included various actions
which reduced her employment opportunities, because she was a
piece-rate worker. Galarza was discriminated against by having his
pay and his 1990 bonus reduced. The make whole remedy shall in-
clude reimbursing the employees for these acts of discrimination by
Respondents.
1991, and by discharging Silvia Silverio on April 26, 1991,
because Respondents believed or suspected that these em-
ployees supported the ILG, have violated Section 8(a)(1) and
(3) of the Act.
9. Respondents, by laying off Rosita Chalston on Novem-
ber 15, 1989, January 19, 1990, and intermittently between
March and June 1991, refusing to recall her as promised on
February 15, 1991, issuing written warnings to her on De-
cember 11, 1990, and on March 4, 1991, and by supervising
her more closely by their supervisors clapping their hands
when Chalston looked up from her work because of her sup-
port of and activities on behalf of the ILG, have violated
Section 8(a)(1) and (3) of the Act.
10. Respondents, by refusing to recall Chalston as prom-
ised on February 15, 1991, issuing a written warning to her
on March 4, 1991, laying her off intermittently between
March and June 1991, and by supervising her more closely
by their supervisors clapping their hands when Chalston
looked up from her work, because Chalston was the subject
of an NLRB charge filed on behalf by the ILG, have violated
Section 8(a)(1) and (4) of the Act.
11. Respondents have not violated the Act in any other
manner as encompassed by the complaint.
12. Local 17-18 has not violated the Act as alleged in the
complaint.
13. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have violated Section
8(a)(1), (2), (3), and (4) of the Act, I find it necessary to
order them to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that Respondents unlawfully constructively
discharged Israel Galarza and discharged Silvia Silverio, I
recommend that Respondents be ordered to reinstate Galarza
(at his prior salary) and Silverio, to their former positions of
employment. Because I have also found that Respondents un-
lawfully laid off or discharged Carmen Nieves, Rosita
Chalston, and Bella Martinez, I shall also recommend that
Respondents make whole Nieves, Chalston, Martinez,
Silverio, and Galarza for the discrimination against them.35
It is also appropriate to recommend that Respondents re-
scind the unlawful warnings issued to Chalston, and to re-
move from their files any references to unlawful warnings,
discharges, or layoffs of all the discriminatees herein.
Charging Party requests a number of extraordinary rem-
edies, which it deems essential to properly remedy Respond-
ents’ conduct. Texas Super Foods, 303 NLRB 209 (1991);
Monfort of Colorado, 284 NLRB 1429, 1479 (1987); Tidee
Products, 194 NLRB 1234–1235 (1972); Heck’s, Inc., 215
NLRB 765 (1974); J. P. Stevens, Inc., 244 NLRB 407
(1979); Autoprod, Inc., 265 NLRB 331 (1982).
Charging Party requests that Respondents be ordered to re-
imburse it for attorneys’ fees expended by Charging Party in
connection with the litigation of the instant matter, including
the district court enforcement proceedings that were nec-
essary as a result of Respondents’ refusal to comply with
subpoenas of General Counsel. While recognizing that severe
or outrageous unfair labor practices by itself do not warrant
the imposition of such a remedy, Workroom for Designers,
274, NLRB 840, 841–842 (1985), Charging party argues that
the standards of Heck’s, supra, and Tidee, supra, which re-
quires frivolous litigation for such a remedy has been met.
Charging Party contends in this regard, that because Re-
spondents called no witnesses and presented no defense to
any of the unfair labor practices alleged, their defenses do
not even rise to the level of ‘‘frivolous,’’ because there has
been no defense whatsoever. I cannot agree with Charging
Party’s construction of what constitutes ‘‘frivolous’’ litiga-
tion.
The Board has generally been very hesitant in awarding at-
torney’s fees to the charging party. It is appropriate where
Respondent has raised patently frivolous defenses. Super
Save, 273 NLRB 20 fn. 1 (1984); Park Inn Home for Adults,
293 NLRB 1082 fn. 3 (1989); Heck’s, supra at 762–768. A
frivolous defense is not merely found to be without merit,
but refers to contentions ‘‘which are clearly meritless on
their face.’’ Heck’s, Inc., 191 NLRB 886, 889 (1971). De-
fenses are debatable rather than frivolous, where allegations
are dependent on resolutions of credibility. Heck’s, supra at
768; Workroom, supra at 842.
Although Respondents called no witnesses in this proceed-
ing, they cross-examined General Counsel’s witnesses vigor-
ously, and were able to in some instances develop some in-
consistencies and problems with the testimony of these wit-
nesses. Thus, there were some significant inconsistencies be-
tween the testimony of Galarza and Nieves on pertinent mat-
ters, and the statements made by Respondents’ officials to
employees were made in English to Spanish-speaking em-
ployees, which also raises some questions as to the ability
of the employees to understand and/or recount what was said
to them. While I have rejected Respondents’ arguments that
for these and other reasons, the employees’ testimony should
not be credited, I do not deem their assertions in this regard
to be frivolous.
Moreover, I also note that some of the violations here
were supported and in some cases found solely based on the
affidavit of Funez. Because she could not recall any of the
alleged statements made to her by Respondents’ officials in
her affidavit, the allegations significantly supported by such
evidence are not free from doubt. Thus, while I relied on
Funez’ affidavit for substantive evidence, this finding is not
open and shut, since Funez could not even recall giving the
affidavit in the first place.
Additionally, while Respondents gave no evidence as to
the reasons for their alleged discriminatory actions, some of
these complaint allegations were far from clearcut. Thus, the
question of knowledge with respect to the discharge of
Silverio is certainly not free from doubt, and similarly the
initial layoff of Chalston took place before any direct evi-
dence of Respondents’ knowledge of her protected conduct.
Indeed, the agency status of Maria Reina, which is also
somewhat questionable, was relied on in part to establish
union activity prior to Chalston’s second unlawful layoff.
879THREE SISTERS SPORTSWEAR CO.
36 I would note that I have dismissed a few of the complaint alle-
gations for various reasons, including the failure to establish super-
visory or agency status.
It is also noteworthy that much of the litigation herein,
dealt with the single employer–alter ego issues. In that area,
although Respondents called no witnesses, General Counsel
called a number of officials and representatives of Respond-
ents as its own witnesses. In that connection, Respondents
cross-examined these witnesses, and introduced documentary
evidence on this subject.
While I have concluded as detailed above that the various
entities did constitute a single employer and an alter ego, Re-
spondents’ position that General Counsel had not established
its case, cannot be construed as frivolous. This points up the
flaw in Charging Party’s argument. Once General Counsel
has presented its case, Respondents are permitted to make a
judgment that a prima facie case has not been made, either
because of credibility problems, or legal insufficiency or
some combination of both. As long as there is some rational
basis for that decision, I do not believe that a Respondent
can be subject to an order for attorney fees, merely because
its judgment in that regard is later found to be in error.
Finally, Charging Party points to the need to resort to the
United States district court for subpoena enforcement, includ-
ing sanctions for criminal contempt concerning which charg-
ing party claims it was actively involved. Charging Party
characterizes the positions taken by Respondents in regard to
and in those proceedings to be ‘‘nothing more than a frivo-
lous attempt to prevent the Board from obtaining the docu-
ments which exposed their alter ego status.’’ I do not agree.
Respondents did not make a blanket refusal to comply
with the various subpoenas. They raised legitimate issues for
their noncompliance in each instance. They initially refused
to comply because General Counsel sought information for
corporations such as Southland which were not named as Re-
spondents in this case. Although I refused to quash the sub-
poenas, finding that General Counsel’s arguments as to rel-
evance to be persuasive, I made that decision with some hes-
itation, and certainly cannot find Respondents’ position in
that regard to be frivolous.
Similarly, Respondents further refusal to comply, resulting
in the contempt proceeding, was also based on a legitimate,
although meritless objection. Here, Respondents would not
turnover the materials so ordered by the district court, be-
cause General Counsel would not agree that Charging Party
should not be given access to the documents. While I and
the district court again rejected these contentions by Re-
spondents, I again find their position to be debatable and not
frivolous.
So, in sum I do not believe that the mere fact that Re-
spondents called no witnesses is sufficient, as Charging Party
contends, to establish a frivolous defense. I conclude that Re-
spondents did raise some legitimate contentions with respect
to General Counsel’s case, and although I have rejected most
of Respondents’ arguments,36 I find that their positions were
debatable and not frivolous, and do not warrant the imposi-
tion of the extraordinary remedy of attorney’s fees. Heck’s,
supra; National Roof Systems, 305 NLRB 965 (1991); Work-
room, supra; Super Save, supra; Park Inn, supra. See also
G. T. Knight Co., 268 NLRB 469 (1983); and Rosehill Cem-
etery Assn., 281 NLRB 425, 426 fn. 5 (1986), where even
in summary judgment cases, where no litigable issues had
been raised, the Board did not order the payment of attor-
ney’s fees, although it was requested to do so.
The cases cited by Charging Party in support of its re-
quest, Tidee, supra, Texas Super, supra, Autoprod, supra, are
not dispositive, since they all involve clearly frivolous de-
fenses which had been previously decided or were similar
and directly related to the unfair labor practices found in a
long history of prior violations against the same Respondent.
C. F. Eckert, Inc. 301 NLRB 868 (1991), is more persuasive,
but is still in my view distinguishable and not controlling
here. While the Board did rely in part on the fact that the
Respondent in Eckert supra presented no defense to the com-
plaint, the nature of the case and Respondent’s conduct,
therein, quite different from the instant matter. Thus, Eckert
involved a clear cut and rather routine case of refusal to
make payments into the Union’s funds. The Respondent
there initially signed a settlement agreement, but then refused
to comply, compelling the revocation of the agreement and
the new complaint. The Board emphasized the Respondent’s
failure to comply with the settlement, as well as its failure
to present any evidence, or even cross-examine any witnesses
during the trial. Thus, it is obvious the Board was convinced
that the Respondent therein knew that it had no debatable or
legitimate defense to the allegations of a clear cut and rather
simple case.
These facts are not present in the instant matter, as I have
concluded that Respondents vigorously cross-examined all
witnesses, raised credibility problems, and some did intro-
duce some evidence through General Counsel’s witnesses, all
contributing to a number of issues that were far from clear
cut, and some quite questionable. Therefore, I find Eckert,
supra, to be distinguishable, and shall not recommend the
awarding of attorney’s fees to Charging Party.
Charging Party also requests the reimbursement of orga-
nizing expenses to it, citing J. P. Stevens., supra, and
Autoprod, supra. Charging Party argues that since Respond-
ents have been found to be a single employer with and alter
ego of Southland-Metro, this demonstrates the behavior and
continuous flouting of Board and court orders, found in J. P.
Stevens to be sufficient to warrant such a remedy.
Ordinarily, organizational expenses, like attorney’s are
awarded by the Board only where the Respondents have en-
gaged in frivolous litigation. Heck’s, supra at 766; Wellman
Industries, 248 NLRB 325 (1980).
However, in exceptional cases, such as J. P. Stevens,
supra, where a long history of flagrant disregard of prior
Board and court orders are present, such an award has been
granted. Since I have already concluded that Respondents did
not engage in frivolous litigation, it must be decided whether
the facts here fit within the J. P. Stevens rationale.
I agree with Charging Party that Respondents have com-
mitted flagrant and serious violations here, and that some of
them are similar to the violations found in the prior case.
However, I do not believe that either the conduct here or the
frequency of the violations approaches the record of J. P.
Stevens, supra, which warranted such a remedy. Because
even flagrant violations as here do not justify the imposition
of a remedy of organizing expense, Workroom, supra at 374,
one prior case involving similar violations, nearly 20 years
ago, is not sufficient to bring this case under the precedent
established in J. P. Stevens, supra. See Edwin R. O’Neill,
880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
37 I note that a substantial number of employees of Respondents
are Spanish speaking, and the record establishes that some of them
saw Respondents’ ads in that newspaper.
38 If 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.
288 NLRB 1394 (1988), where prior violations by an em-
ployer alter ego were denied insufficient to justify extraor-
dinary remedies, including expenses.
Charging Party also requests that Beirel Jacobowitz be per-
sonally ordered to read the notice to employees, Texas
Foods, supra; United Dairy Farmers’ Coop., 242 NLRB
1026, 1029 (1979), as well as the invocation of the Board’s
special mail and publishing remedies. Texas Foods, supra;
Monfort of Colorado, 284 NLRB 1429 (1987).
The Board, supported by the courts, have ordered such
remedies, where the conduct of the employers involved was
so flagrant and pervasive, that they are likely to have a con-
tinuing coercive effect on the free exercise by employees of
their Section 7 rights, virtually foreclosing the possibility of
holding a fair election. Monfort of Colorado, 298 NLRB 73,
86 (1991); Workroom, supra, 274 NLRB at 841; Monfort of
Colorado, 284 NLRB 1429, 1430 (1987), 852 F.2d 1344,
1347–1349 (D.C. Cir. 1988); United Supermarkets, 261
NLRB 1291, 1293 (1982); Loray Corp., 189 NLRB 557,
558–559 (1970); Haddon House Foods, 242 NLRB 1057,
1058–1059 (1990), affd. in pertinent part. 640 F.2d 392,
399–404 (D.C. Cir. 1981); NLRB v. S. E. Nichols, Inc., 862
F.2d 952, 962 (2d Cir. 1988); NLRB v. Unional Nacional de
Trabajadores, 540 F.2d 1, 12 (1st Cir. 1976); Gourmet
Foods, 270 NLRB 578, 587 (1984).
I agree with Charging Party that Respondents here have
committed flagrant and extensive unfair labor practices so
that the mere posting of a notice will not be sufficient to
make the employees individually aware of their statutory
rights to select a union of their own choosing. Loray, supra
at 558; Monfort, supra, 289 NLRB at 1429–1430.
Here, Respondents have discriminatorily laid off or dis-
charged five unit employees, including a leading adherent of
the ILG, Carmen Nieves. Respondents’ conduct with respect
to Nieves was particularly reprehensible, inasmuch as it in-
cluded a barrage of obscenities plus physically blocking her
from leaving the office at the time of her discharge, by
David and Beirel Jacobowitz, their two highest officials.
Similarly, when Respondents terminated Bella Martinez,
Respondents by Beirel also subjected her to humiliating in-
sults (referring to cockroaches and insects), plus a physical
assault by removing her chair from under her and pushing
her.
Additionally, after unlawfully terminating Rosita Chalston
on two occasions, and being forced to reinstate her after an
arbitration, Respondents continued to discriminate against her
in several ways, including the almost inhuman practice of a
supervisor clapping his hands whenever she looked up from
her work.
Additionally, I would note that most of the 8(a)(1) state-
ments, including threats of discharge and plant closure, were
made by Beirel. Beirel was also personally involved in the
disgraceful conduct detailed above at the time of the dis-
charges of Nieves and Martinez, as well as the constructive
discharge of Galarza. Thus, I conclude that the mere posting
of a notice by Respondents will not be sufficient to make
employees individually aware of his statutory rights and that
his exercise of such rights will be respected by Respondents.
Accordingly, it is recommended that in addition to posting
copies of the notice, that Beirel Jacobowiz, Respondents’
chief executive, who was responsible for and directly impli-
cated in most of the violations found, be ordered to person-
ally sign the notices, and to personally read the attached no-
tice at assembled meetings in which all employees will be
reached, ‘‘directly placing on the notice the imprimatur of
the person most responsible for the illegal acts in question,’’
Loray, supra, and that because Respondents ‘‘unlawful cam-
paign emanated from the top, so too must reassurances that
this company campaign will end come from the top.’’ United
Dairy, supra at 1029. See also Haddon House, supra at 1058;
United Supermarkets, supra at 1294.
It is also appropriate to order Respondents to sign and
mail copies of the notice to all its present employees as well
as to all employees on their payroll since Respondents began
its course of unlawful conduct in November 1989. United
Supermarkets, supra at 1294, Workroom, supra, 274 NLRB
at 841; Loray, supra at 558; United Dairy, supra at 1029;
Monfort, supra, 248 NLRB 86, 88.
I also find that it is appropriate to order Respondents to
publish a copy of the notice in two local newspapers of gen-
eral circulation, including ‘‘El Diario,’’37 twice weekly for a
period of 4 weeks. Monfort, supra, 298 NLRB at 88; Mon-
fort, supra, 284 NLRB 1429, 1479; United Dairy, supra at
1029; Haddon House, supra at 1058.
Charging Party also requests a number of other special
remedies providing for reasonable access to Respondents’
premises and bulletin boards by the ILG in certain situations,
plus supplying the ILG with names and addresses of their
current employees. These remedies are traditionally provided
by the Board, where as here, Respondents have engaged in
flagrant and pervasive conduct rendering the possibility of
fair election remote, and I find it appropriate to so rec-
ommend. Monfort, supra, 298 NLRB at 86; United Dairy,
supra at 1031; United Supermarkets, supra at 1293; Haddon
House, supra at 1058–1059. These access provisions which
I shall recommend shall apply for a period of 2 years from
the posting of the notice, or until the Regional Director has
issued an appropriate certification following a free and fair
election, whichever comes first. Monfort, supra; Haddon
House, supra.
Finally, because I found flagrant unfair labor practices to
have been committed by Respondents, a broad cease-and-de-
sist order is required. Hickmott Food, 242 NLRB 1357
(1979).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended38
ORDER
The Respondents, Three Sisters Sportswear Co., Bedford
Cutting Mills, Inc., Three Sisters Apparel Corp., Metropoli-
tan Sweater Industries, Inc., United Knitwear Industries, Inc.,
United Knitwear Industries Ltd., Skylight Fashions, Inc.,
d/b/a Skylight Trading and 144 Spencer Realty Corp., Brook-
lyn, New York, their officers, agents, successors, and as-
signs, shall jointly and severally
1. Cease and desist from
881THREE SISTERS SPORTSWEAR CO.
39 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.’’
(a) Laying off, discharging, issuing written warnings to or
otherwise discriminating against any employee because of
their support for or activities on behalf of the International
Ladies’ Garment Workers’ Union, AFL–CIO or because their
employees engaged in other protected concerted activity, or
because a charge has been filed on behalf of their employees
with the National Labor Relations Board.
(b) Verbally abusing, physically assaulting, blocking em-
ployees from exiting their office, isolating the work stations
of employees, instructing their mechanics not to fix machines
of employees on request, making more complicated and
fewer assignments to employees, forcing employees to wait
longer for assignments than other employees, supervising
employees more closely, instructing employees not to speak
with other employees, reducing the bonus or the pay of em-
ployees, or having their supervisors clapping their hands
whenever an employee looks up from their work, because of
their employees support for or activities on behalf of the
ILG, or because they engaged in other protected concerted
activity, or because a charge has been filed on behalf of their
employees at the National Labor Relations Board.
(c) Ordering and instructing employees not to accept and
to rip up literature from the ILG, referring to the ILG as the
mafia, promising employees benefits to assist them in solicit-
ing support for Local 17-18 from other employees, threaten-
ing employees with discharge or closing of the factory if said
employees support the ILG or if the ILG came into the fac-
tory, threatening employees with unspecified reprisals if they
speak to employees who support the ILG, questioning em-
ployees concerning their activities on behalf of or support for
the ILG, or creating the impression among their employees
that their activities or the activities of their fellow employees
on behalf of the ILG were under surveillance by Respond-
ents.
(d) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Israel Galarza, and Silvia Silverio immediate and
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights and privileges
previously enjoyed.
(b) Make whole Galarza, Silverio, Carmen Nieves, Bella
Martinez, and Rosita Chalston for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, including the reduction of work opportunities
for Nieves and the reduction of Galarza’s pay and bonus, in
the manner set forth in the remedy section of this decision.
(c) Remove from their files any references to the unlawful
actions taken against Silverio, Nieves, Chalston, Martinez,
and Galarza, and notify the employees in writing that this
has been done and that the actions will not be used against
them in any way.
(d) Restore the pay of Israel Galarza to what it had been
prior to its reduction in March 1991, plus any raises which
he may have received since that time.
(e) Rescind in writing the instruction that their employees
are no longer allowed to speak with Carmen Nieves, and the
instructions that her machine will not be fixed by the me-
chanic at her request, notify Nieves in writing that this has
been done, and distribute a copy of this notice of recission
to all employees.
(f) Restore the work station of Nieves to what it had been
prior to her termination on November 19, 1989.
(g) Restore their practice which had been in effect prior
to November 19, 1989, of assigning Nieves to an amount of
bundles equal to that of other employees.
(h) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(i) Mail copies of the attached notice marked ‘‘Appen-
dix’’39 on forms provided by the Regional Director for Re-
gion 29, after being signed by Beirel Jacobowitz, Respond-
ents’ chief operating official, to each and every employee
working at its Brooklyn, New York plant on the date on
which such notice is mailed, as well as to each and every
employee who worked or should have worked in its plant
during the period of the Respondent’s unfair labor practices.
Additional copies of the notice shall be posted by the Re-
spondents immediately upon receipt thereof, and be main-
tained by them for 60 consecutive days thereafter in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondents to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(j) Mail and post in the same manner as described above
a Spanish-language translation of the English-language no-
tice. The Regional Director for Region 29 of the Board will
provide copies of the Spanish-language translation for post-
ing by the Respondent.
(k) Publish in two newspapers of general circulation in-
cluding El Diario, copies of the attached notice marked ‘‘Ap-
pendix.’’ Such notice shall be published twice weekly for a
period of 4 weeks.
(l) Convene during working time all employees at the
Brooklyn plant, by shifts, departments, or otherwise, and
have Beirel Jacobowitz, read to the assembled employees the
contents of the attached notice marked ‘‘Appendix.’’ The
Board shall be afforded a reasonable opportunity to provide
for the attendance of a Board agent at any assembly of em-
ployees called for the purpose of reading such notice.
(m) On request of the ILG made within 1 year of the
issuance of the Order here, make available to the ILG with-
out delay a list of names and addresses of all employees at
the time of the request.
(n) Immediately on request of the ILG, for a period of 2
years from the date on which the aforesaid notice is posted
or until the Regional Director has issued an appropriate cer-
tification following a fair and free election, whichever comes
first, grant the ILG and its representatives reasonable access
to the Brooklyn, New York plant bulletin boards and all
places where notices to employees are customarily posted.
(o) Immediately on request of the ILG, for a period of 2
years from the date on which the aforesaid notice is posted
or until the Regional Director has issued an appropriate cer-
882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tification following a fair and free election, whichever comes
first, permit a reasonable number of union representatives ac-
cess for reasonable periods of time to nonwork areas, includ-
ing but not limited to canteens, cafeterias, rest areas, and
parking lots, within its Brooklyn, New York plant so that the
ILG may present its views on unionization to the employees,
orally and in writing, in such areas during changes of shift,
breaks, mealtimes, or other nonwork periods.
(p) In the event that during a period of 2 years following
the date on which the aforesaid notice is posted, or until the
Regional Director has issued an appropriate certification fol-
lowing a fair and free election, whichever comes first, any
supervisor or agent of Respondents convenes any group of
employees at the Respondents’ Brooklyn plant and addresses
them on the question of union representation, give the ILG
reasonable notice thereof and afford two union representa-
tives a reasonable opportunity to be present at such speech
and, on request, give one of them equal time and facilities
to address the employees on the question of union represen-
tation.
(q) In any election which the Board may schedule at the
Respondent’s Brooklyn plant within a period of 2 years fol-
lowing the date on which the aforesaid notice is posted and
in which the ILG is a participant, permit, on request by the
ILG, at least two union representatives reasonable access to
the plant and appropriate facilities to deliver a 30-minute
speech to employees on working time, the date thereof to be
not more than 10 working days but not less than 48 hours
prior to any such election.
(r) 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 as to allega-
tions not specifically found herein.
IT IS FURTHER ORDERED that the complaint in Case 29–
CB–7505 against Local 17-18 United Production Workers’
Union, AFL–CIO is dismissed.