Bloom/Art Textiles, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1976

225 N.L.R.B. 766 (N.L.R.B. 1976)

766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bloom/Art Textiles, Inc. and Miscellaneous Ware-
housemen, Drivers & Helpers Local 986, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America . Case 21-
CA-13894
July 29, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On May 3, 1976, Administrative Law Judge Wil-
liam J. Pannier III issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge: This
matter was heard by me in Los Angeles, California, on
March 24, 1976. On December 11, 1975,' the Regional Di-
rector for Region 21 of the National Labor Relations
Board issued a complaint and notice of hearing based
upon an unfair labor practice charge filed on August 12
and alleging violations of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, 29 U.S.C. Sec.
151, et seq., herein called the Act.
All parties have been afforded full opportunity to ap-
pear, to introduce evidence, to examine and cross-examine
witnesses, and to file briefs. Based upon the entire record,
upon the briefs filed on behalf of the parties, and upon my
observation of the demeanor of the witnesses, I make the
following:
1 Unless otherwise stated, all dates occurred in 1975
FINDINGS OF FACT
1. JURISDICTION
At all times material, Respondent has been a California
corporation engaged in the business of distributing fabrics
at wholesale. In the course and conduct of these opera-
tions, Respondent annually purchases and receives goods
valued in excess of $50,000 directly from suppliers located
outside the State of California. Therefore, I find, as admit-
ted in Respondent's answer to the complaint, that at all
times material Respondent has been an employer engaged
in commerce and in a business affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material , Miscellaneous Warehousemen,
Drivers & Helpers Local 986, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, has been a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
The sole issue presented in this matter is the motivation
for the termination of Manuel Flores on August 18. The
General Counsel contends that it was occasioned by dis-
closure of Flores' name as a supporter of the Union' s orga-
nizational campaign being conducted among Respondent's
employees. Conversely, Respondent contends that it was
occasioned by Respondent's discovery that California law
prohibited knowing employment of an alien not entitled to
lawful residence in the United States.
In September 1974, Flores, a Mexican national who had
been residing in the United States for approximately 2
years without having obtained the necessary documents to
become a lawful resident, became employed by Respon-
dent under the fictitious name Manuel Lopez. Flores, sup-
ported by his uncle Jose Flores, testified that at the time of
his interview for the position, Respondent's owner, Leo
Bloom, had inquired if he had his papers for legal residence
and that he had told Bloom that he did not. Bloom denied
having asked this. Assistant Bookkeeper Luis Valladares,
who all agree had been present as translator during the
interview, had no recollection of whether Bloom had asked
this question. While Bloom 's son , Stanley, testified that he
had been present during the interview and that his father
had not inquired concerning the legality of Flores' residen-
cy, Stanley Bloom's recollection of what had transpired
that day was quite vague, and his denial appeared to have
been premised less on what he actually recalled and more
on the fact that Respondent does not normally inquire
about this subject when interviewing applicants.
Flores continued working for Respondent under the
name Lopez until November 1974 when a decline in busi-
ness led to his layoff. Not until March did he return to
work for Respondent. However, during the interim, he had
lost the social security card corresponding to the name Lo-
pez. Thus, upon returning to work, he filled out a new W-4
certificate, listing his correct name and social security
225 NLRB No. 101
BLOOM/ART TEXTILES, INC. 767
number. When doing so, he explained to the secretary for
bookkeeping and payroll that he had lost his social security
card and wanted to change the certificate. President Bloom
denied being told of this change, although he acknowl-
edged that at the time he employed only approximately
eight employees.
On August 4 the Union filed the representation petition
in Case 21-RC-14285, seeking an election in a unit of pro-
duction and maintenance employees, shipping and receiv-
ing employees, warehousemen, and truckdrivers employed
by Respondent.2 A copy of this petition was admittedly
received by Respondent on the following day. By this time,
however, business had again began declining and, 3 days
later on August 8, Bloom offered Flores and another em-
ployee, Rudy Zermano, the choice of either having one of
them laid off or of alternating workweeks. After confer-
ring, the two employees advised Bloom that they would
prefer to rotate their workweeks, with Zermano being the
one to work the week of August 11 through 15. Flores
testified that on this same day, Bloom had asked if Flores
had legal papers, but had made no reply when Flores had
said that he did not. Bloom denied having inquired of
Flores about the matter on August 8. However, he did ac-
knowledge that following the filing of the petition he had
inquired of two Board agents if he was permitted to em-
ploy "an illegal person" and had been told that illegal
aliens have a right to be employed and to vote in Board
elections.3
Notwithstanding his agreement to rotate workweeks
with Zermano, Flores was not happy with the arrangement,
believing that, instead, Respondent should have laid off
other employees. This led him to complain about the mat-
ter to the Union, which, on August 12, filed the charge in
the instant matter, stating as the basis for the charge:
"Within six months prior to the filing of this charge the
above-named Employer has discharged Manuel Flores and
Rudy Zermano for their Union activities on behalf of the
Charging Party." There is no evidence that Respondent
had been aware that this charge had been occasioned by
Flores' complaint to the Union nor is there any evidence
that would support an inference that Respondent would
have suspected Flores of being more active than Zermano
on behalf of the Union.
Flores was terminated on the afternoon of August 18,
the first day on which he worked following the filing of the
charge. He testified that, during the termination conversa-
tion with Bloom, the following had transpired:
At first he asked me if I had papers, legal papers, here
and I said not, that I didn't have papers.
Then later, afterwards he told me he was going to take
my job away because I did not have legal papers and
he did not want any problems.
Respondent contends that the termination resulted from a
2 Flores had signed an authorization card for the Union in June , but the
General Counsel concedes that there is no evidence disclosing that Respon-
dent had been aware of that fact
3 It appears , as the General Counsel argues , that this conversation oc-
curred prior to the discussion between Bloom and his attorneys , on August
15, in which the decision to terminate Flores was made
conversation on August 15 when, during the preparation of
the eligibility list for submission to the Board in connection
with processing of the petition,4 it was brought to the atten-
tion of attorneys Tomigal and Clark that Flores had been
employed under two different names and social security
numbers. They asked if Bloom had been aware of this,
which he denied, and then asked if Bloom was aware of
whether or not Flores was legally present in the country, to
which Bloom pleaded lack of knowledge. They then ad-
vised Bloom that under California Labor Code, sec.
2805(a), criminal sanctions could be imposed against Re-
spondent for knowingly employing an alien not entitled to
lawful residence in the United States. By way of amplifica-
tion, they pointed out that, while this provision had been
declared unconstitutional by the California courts, it had
been docketed for decision by the United States Supreme
Court and, in their opinion, would be found to be valid
legislation.5 In any event, they told Bloom, the statute did
embody the public policy of the State of California and,
consequently, they recommended that Bloom first ask
Flores if he was illegally residing in the United States and
then , if he acknowledged that he was not a legal resident,
that he be terminated. Bloom testified that it was pursuant
to this advice that he pursued the course which he followed
on August 18.
Analysis
In his brief, counsel for the General Counsel relies upon
two factors to premise his argument that the termination of
Flores was unlawfully motivated: first, the proximity to the
termination of the filing of the charge listing Flores as a
union supporter and, second, the asserted fact that Re-
spondent had been aware of Flores' illegal residency status
since the time of his interview for employment. From these
two premises, the General Counsel continues on to con-
struct the argument that animus can be inferred from the
proximity factor and that antiunion motivation can then be
inferred from that animus and from the fact that Respon-
dent advanced illegal residency as the reason for the termi-
nation notwithstanding previous knowledge of Flores' sta-
tus; thereby relying upon a demonstrably pretextual reason
which, of itself, supports the inference of illegal motivation.
Proximity of time between protected activity and termi-
nation "strongly suggests a causative relationship between
the two and is, as we have said, sufficient to establish a
prima facie case Union Camp Corporation, 194
NLRB 933 (1972), enfd. 463 F.2d 1136 (C.A. 5, 1972). Yet,
the proximity doctrine of illegal motivation is not a per se
doctrine. "[C]oincidence in union activity and discharge
renders an employer vulnerable and serves to make the
4 There were apparently two meetings between Bloom and the two attor-
neys , a preliminary meeting on August I1 followed by the August 15 meet-
ing to prepare the eligibility list. Clark testified that the charge had been
filed by the time of the meeting in which the parties met to prepare this list,
and accordingly, I find that the above-described events transpired at the
August 15 meeting
5 The Supreme Court had granted certiorari on June 23, 1975 DeCanas v
Bica, 422 U S 1040 As predicted, the holding of the California courts was
reversed by the Court, although , as the General Counsel points out, the
section was not declared constitutional DeCanas v &ca, 424 U S 351
(1976)
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge issue one of fact." N.L R.B. v. Council Manufac-
turing Corporation, 334 F.2d 161, 164 (C.A. 8, 1964); ac-
cord: The May Department Stores Company d/b/a The M.
O'Neil Company, 195 NLRB 22 (1972). The presumption
can be rebutted by a showing of legitimate cause for the
termination. Union Camp Corporation, supra; Lawrence In-
stitute of Technology, 196 NLRB 28, 30 (1972); Wyle Labo-
ratories, 201 NLRB 233 (1973).
The General Counsel's second premise is that Respon-
dent had been well aware pnor to August 18 that Flores
was not legally residing in the United States. When ques-
tioned concerning his prior knowledge of Flores' residency
status, Bloom 's testimony was not convincing. Further, his
denial concerning the questioning attributed to him during
the September 1974 interview was not effectively corrobo-
rated either by Valladares, who simply claimed lack of re-
call, or by Stanley Bloom, whose recollection of the inter-
view appeared most vague and who, in reality, retreated to
normal practice during interviews as the basis for his denial
of the legality of residency question attributed to his father.
Leo Bloom's admission that, following the filing of the pe-
tition, he had asked two Board agents if he could employ
"an illegal person" tends to support Flores' testimony con-
cerning Bloom 's August 8 inquiry. Bloom did not appear to
be a person given to making abstract inquiries and, absent
evidence that there were other persons employed by Re-
spondent who were residing illegally in the United States,
Bloom could only have been referring to Flores when
speaking with the two agents. Finally, the number of em-
ployees employed by Respondent are few in number and in
such a small operation it must have been a somewhat
unique matter for the secretary to be told that an employee
was changing his W-4 certificate to reflect a new name and
social security number. At least, it has not been shown that
this was a common occurrence at Respondent. In these
circumstances, I find it most unlikely that the secretary
would not have reported so unusual a matter to her superi-
ors and that it would not have been brought to Bloom's
attention. In these circumstances, I do not credit Leo
Bloom's testimony that he had been unaware of Flores'
status prior to August 18, and I find that Respondent did
possess knowledge of his illegal residency status prior to
that date.
It is at this point, however, that I part company with the
General Counsel's argument, for I feel that it fails to fully
portray Respondent's defense. Respondent does not simply
contend that it learned of Flores' illegal status on August
18 and then terminated him. Rather, its defense embraces
an additional factor; namely, that on August 15 Bloom
became aware that state law prohibited the knowing em-
ployment of illegal aliens and was advised by counsel to
terminate Flores if he was not, in fact, a legal resident. It
was this factor, and not the election, which Bloom testified
led him to terminate Flores. As found above, Bloom was
not a credible witness when he denied knowledge of Flores'
residency status prior to August 18. 1 am aware of the prin-
ciple that "the testimony of one who has been unreliable as
to one issue may properly be accorded little weight as to
the next." N.L.R.B. v. Pittsburgh Steamship Co., 337 U.S.
656, 659 (1949). On the other hand, a trier of fact is "not
required to discount everything [witnesses] testified to be-
cause he did not believe all of it. Nothing is more common
than to believe some and not all of what a witness says."
Edwards Transportation Company, 187 NLRB 3-4, enfd. per
curiam, 449 F.2d 155 (C.A. 5, 1971). With respect to Bloom
there are several factors which indicate that the maxim,
Falsus in unto, falsus in omnibus should not be applied.
NL.R.B. v. Florida Citrus Canners Co Operative, 288 F.2d
630 (C.A. 5, 1961).
First, while I have found that Bloom was fully aware of
Flores' residency status prior to August 18, the record is
devoid of evidence which would support a finding that he
had also been aware that there was a state law prohibiting
the knowing employment of illegal residents. Accordingly,
there is nothing to rebut Bloom's testimony that he first
learned of California Labor Code, sec. 2805(a), on August
15.
Second, the record does disclose that Bloom had been
concerned with Flores' residency status prior to the filing
of the charge which, the General Counsel concedes, first
disclosed Flores' support for the Union. Thus, on August
8-5 days before Respondent received a copy of the
charge-Bloom asked Flores about his residency status.
Moreover, following the filing of the petition, Bloom asked
two Board agents if there was anything wrong with retain-
ing "an illegal person" as an employee.6 This is a crucial
conversation, since it reinforces Respondent's defense if it
occurred prior to receipt of the charge. Alternatively, if the
conversation occurred between August 13 and 15, it would
tend to support the General Counsel's theory that the dis-
closure of Flores' support for the Union led Respondent to
seek a justifiable basis for terminating him. Clearly, howev-
er, the burden is on the General Counsel to demonstrate
that the latter and not the former was the case. "The bur-
den of establishing every element of a violation under the
Act is on the General Counsel." Western Tug and Barge
Corporation, 207 NLRB 163, fn. 1 (1973). Though the Gen-
eral Counsel did make an effort to ascertain the date of this
conversation by interrogating Bloom, the latter did not re-
call the time at which it had taken place. I do not think that
his lack of recollection in this respect was an attempt to
evade answering. Bloom did not appear sufficiently per-
ceptive to appreciate the significance of the date and 7
months had elapsed since the conversation. This, however,
was not the only avenue available to the General Counsel.
Presumably, one or both of the two agents were available
to testify concerning the date of the conversation. Yet, nei-
ther was called as a witness. I realize that the General
Counsel does have a policy against calling his own agents
as witnesses, but this policy cannot serve as the basis for
drawing an adverse inference against Respondent. Accord-
ingly, I find that it has not been shown that Bloom 's ques-
tion about continued employment of illegal aliens arose as
a result of receipt of the charge and, further, that it, like
6 Though he acknowledged having been told by the Board agents that
illegal aliens were eligible to vote in Board elections, the General Counsel
did not dispute Bloom's testimony that this information had been provided
by the agents in response to Bloom's question confined to continued em-
ployment of such persons Thus, this incident does not display Respondent's
concern with the eligibility of aliens, but, rather, is consistent with the de-
fense that Respondent was concerned about the possible consequences of
continued employment of aliens residing in the United States
BLOOM/ART TEXTILES, INC. 769
Bloom 's August 8 question to Flores, serves only to dem-
onstrate that Respondent was concerned about the effect
which disclosure of Flores' status might have upon Re-
spondent. Such concern is, of course, consistent with
Respondent's defense.7
Third, in contrast with the immediately preceding factor,
there is no evidence of concern by Respondent about the
possible unionization of its employees. No violations of the
Act, other than Flores' discharge, have been alleged. None
have been shown to have occurred. No statements demon-
strating animus have been shown to have occurred. In fact,
there is no evidence that Respondent made any statements
at all to its employees concerning the organizing campaign
and the election which would result from the filing of the
petition.
Fourth, Flores was not the only employee named in the
charge. Zermano, with whom Flores worked, was also list-
ed as an alleged discriminatee. The charge makes no dis-
tinction between the two employees. The record would not
support an inference that Respondent could view Flores as
being a more active or stronger supporter of the Union
than Zermano. Yet, there is no evidence that Zermano be-
came the target of reprisals by Respondent or that Respon-
dent took action against him to prevent him from continu-
ing to support the organizing campaign among
Respondent's employees. True, an employer need not vio-
late the Act in wholesale fashion by weeding out all union
adherents in order for the General Counsel to establish
that a violation has occurred. Nachman Corp. v. NL.R.B.,
337 F.2d 421, 424 (C.A. 7, 1964); N.L.R.B. v. Puerto Rico
Telephone Company, 357 F.2d 919, 920 (C.A. 1, 1966). On
the other hand, the absence of any unlawful conduct di-
rected toward Zermano, in circumstances where both he
and Flores were joined, equally, as parallel supporters of
the Union, does diminish the effectiveness of the General
Counsel's argument that Respondent's termination of
Flores was unlawfully motivated. See: Universal Manufac-
turing & Supply Co., 198 NLRB 605 (1972), enfd. per curtain
474 F.2d 1272 (C.A. 4, 1973); Young and Hay Transporta-
tion Co., 205 NLRB 619, 622 (1973); Enerco International,
Inc., 200 NLRB 394, 396 (1972).
Fifth, it was clear from the tenor of Bloom's testimony
that he had, in fact, relied upon advice of counsel in termi-
nating Flores. Thus, in contrast to his cautious and defen-
sive demeanor when denying knowledge prior to August 18
of Flores' illegal residency, obviously designed to avoid ad-
mitting having knowingly employed an illegal alien, Bloom
was quite spontaneous and forthright when testifying con-
cerning counsel 's advice 8 and his reliance on that advice in
terminating Flores. In short, he impressed me when testify-
7 Though the agents did tell Bloom that there was nothing wrong with
employing illegal aliens, this opinion was presumably confined to Federal
Law where, of course, there is currently no proscription on knowingly em-
ploying aliens, although such legislation is pending Thus, I draw no adverse
inference from Bloom's subsequent decision to disregard the government
agents' advice and to follow the advice of his own counsel, predicated upon
state law
8 Thus, in describing the discharge conversation on direct examination,
Bloom completed his answer by testifying "And then I explained to him
that-that's what took place But how about your advice9 May I tell them9
Not yet9"
Ing concerning this facet of the case as a person who had
done what he had been told was the correct thing and who
was genuinely surprised that his conduct was now being
challenged. Furthermore, his testimony concerning the Au-
gust 15 meeting with his attorneys was substantially cor-
roborated by Clark. Of course, the fact that one is an attor-
ney does not automatically render his testimony credible.
Yet, the General Counsel has not challenged Clark's credi-
bility, and there is nothing which makes his testimony im-
plausible.9 Accordingly, I credit Clark and find that on
August 15 Bloom was advised by his attorneys that under
state law criminal sanctions could be imposed against em-
ployers who knowingly employed illegal aliens, and was
further advised that if Flores was an illegal alien he could
and should be terminated. Acting on this advice, Bloom,
though secretly aware that Flores was not a legal resident
of the United States, followed the instructions given him
by Tomigal and Clark, first asking again if Flores had legal
papers and then terminating him upon receipt of a negative
answer.
Though the timing of the termination renders it suspect,
Respondent's defense, based upon an assertion of fear of
prosecution for violating state law, is plausible and is sup-
ported by the circumstances in which it is advanced. See:
Metro Truck Body, Inc., 223 NLRB 988 (1976). Conversely,
the General Counsel's theory, that the termination was ef-
fected in retaliation for Flores' support for the Union, is
contrary to the events preceding Respondent's acquisition
of knowledge of Flores' support for the Union (showing
Respondent's concern about the possible effects of em-
ploying an illegal alien), is contrary to the fact that Re-
spondent has not committed any other violation of the Act
and has not displayed animus, and is contrary to the fact
that no adverse action was taken against Zermano, whose
name had been linked with Flores' name in the charge. In
these circumstances, I find that the evidence will not sup-
port the allegation that Respondent was motivated by con-
siderations unlawful under the Act when it terminated
Manuel Flores on August 18. Accordingly, I grant
Respondent's motion to dismiss the complaint.
CONCLUSIONS OF LAW
1. Bloom/Art Textiles, Inc., is an employer within the
meaning of Section 2(2) of the Act, engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Miscellaneous Warehousemen, Drivers & Helpers
Local 986, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
9 Though there might be room to quarrel with his interpretation of sec
2805(a), as the General Counsel appears to do in his brief, the correctness of
that interpretation is not in issue "It is well established that an employer
may discharge an employee for good reason, for bad reason, or for no
reason, provided that it is not for a reason proscribed by the statute " Acryl-
ic Optics Corporation, 222 NLRB 1105 (1976)
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Respondent has not violated the Act in any manner.
On the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER10
It is hereby ordered that the complaint be, and it hereby
is, dismissed in its entirety.
10 In the event no exceptions are filed as provided by Sec 102 46 of the 102 48 of the Rules and Regulations , be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions , and Order, and all objections thereto shall be
conclusions, and recommended Order herein shall, as provided in Sec deemed waived for all purposes