Cactus Bay Apparel, Inc.

National Labor Relations Board - Unpublished Board Decisions

Apr 30, 2012

28-CA-068006 (N.L.R.B. Apr. 30, 2012)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
CACTUS BAY APPAREL, INC.
and Cases 28-CA-068006
28-CA-071581
UNITED FOOD AND COMMERCIAL
WORKERS UNION, LOCAL 99, AFL-CIO
DECISION AND ORDER
Statement of the Cases
On March 2, 2012, Cactus Bay Apparel, Inc. (the Respondent), United Food and
Commercial Workers Union, Local 99, AFL-CIO (the Charging Party Union), and the
Acting General Counsel of the National Labor Relations Board entered into a Formal
Settlement Stipulation, subject to the Board’s approval, providing for the entry of a
consent order by the Board and a consent judgment by any appropriate United States
Court of Appeals. The parties waived all further and other proceedings before the
Board to which they may be entitled under the National Labor Relations Act, as
amended, and the Board’s Rules and Regulations, and the Respondent waived its right
to contest the entry of a consent judgment or to receive further notice of the application
therefor.
The National Labor Relations Board has delegated its authority in this proceeding
to a three–member panel.
The Formal Settlement Stipulation is approved retroactive to the date of its
execution and made a part of the record, and the proceeding is transferred to and
continued before the Board in Washington, D.C., for the entry of a Decision and Order
pursuant to the provisions of the Formal Settlement Stipulation.
Based on the Formal Settlement Stipulation and the entire record, the Board
makes the following:
Findings of Fact
1. The Respondent’s business
The Respondent is an Arizona corporation with an office and place of business in
Phoenix, Arizona (the Respondent’s facility). It is engaged in the business of
manufacturing and distributing ladies’ apparel.
2
In conducting its business operations at the Respondent’s facility during the one-
year period ending November 1, 2011, the Respondent derived gross revenues in
excess of $500,000.
In conducting its business operations at the Respondent’s facility during the one-
year period ending November 1, 2011, the Respondent purchased and received goods
valued in excess of $50,000 directly from outside the State of Arizona.
The Respondent is now, and has been at all material times, an employer
engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.
2. The labor organization involved
United Food and Commercial Workers Union, Local 99, AFL-CIO, is now, and has
been at all material times, a labor organization within the meaning of Section 2(5) of the
Act.
ORDER
Based on the above findings of fact, the Formal Settlement Stipulation and the
entire record and pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board orders that:
Cactus Bay Apparel, Inc., Phoenix, Arizona, its officers, agents, successors and
assigns, shall:
1. Cease and desist at the Respondent’s facility from:
(a) Threatening its employees by informing them that employees are being
discharged because they engaged in concerted activities with other employees.
(b) Threatening its employees by having a uniformed police officer present
when they are being discharged.
(c) Laying off or discharging its employees, or causing its employees to quit,
because they engaged in concerted activities, including, but not limited to, by making
concerted complaints to the Respondent, to the Arizona Division of Occupational Safety
and Health, or to other third parties.
(d) Discharging its employees because of their membership in, support for, or
activities on behalf of the Union, or any other labor organization.
(e) Failing or refusing to recognize and bargain in good faith with the United
Food and Commercial Workers Union, Local 99, AFL-CIO (Union) as the exclusive
collective-bargaining representative of employees in the following unit (Unit).
3
All full-time and regular part-time production, shipping, and
receiving employees employed by the Respondent at its
Phoenix, Arizona manufacturing facility, excluding all other
employees, office clericals, confidential employees, guards,
and supervisors as defined in the Act.
(f) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their Section 7 rights.
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) Within five (5) days, offer, in writing, Maura Karina Ortiz (aka Victoria
Carranza de Ortiz) (Ortiz), Elba Tenchilt (Tenchilt), and Maria Antonia Vargas (Vargas),
Rosa Isela Chavira (Chavira), Rosa Jurado (Jurado), and Laura Giron (Giron)
immediate and full reinstatement to their former positions of employment or, if these
positions no longer exist, to substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed, provided that they
complete within a reasonable period of time appropriate employment forms and present
to the Respondent appropriate documents to allow the Respondent to meet its
obligations under the Immigration Reform and Control Act of 1986. Benito Sanchez
(Sanchez) does not seek reinstatement to his former or substantially equivalent
position.
(b) Make whole Ortiz for any loss of pay she may have suffered by reason of
the alleged discrimination against her, by payment to her of $6,797.00, plus additional
backpay and interest which may have accrued on or after February 28, 2012, to be
calculated by the Regional Director for Region 28 (the Regional Director) using standard
Board formulae.
(c) Make whole Tenchilt for any loss of pay she may have suffered by reason
of the alleged discrimination against her, by payment to her of $6,082.00, plus additional
backpay and interest which may accrued on or after February 28, 2012, to be calculated
by the Regional Director using standard Board formulae.
(d) Make whole Vargas for any loss of pay she may have suffered by reason
of the alleged discrimination against her, by payment to her of $6,439.00, plus additional
backpay and interest which may accrue on or after February 28, 2012, to be calculated
by the Regional Director using standard Board formulae.
(e) Within 14 days, remove from the Respondent’s files any reference to the
discharges of Ortiz, Giron, Jurado, Sanchez, Tenchilt, and Vargas, and to the
constructive discharge of Chavira, and within 3 days thereafter, notify them in writing
that this was done and that the discharges will not be used against them in any way.
4
(f) Upon request, bargain collectively with United Food and Commercial
Workers Union, Local 99, AFL-CIO, as the exclusive collective-bargaining
representative of the following employees with respect to rates of pay, wages, hours of
employment and other conditions of employment, and, if an understanding is reached,
reduce it to writing and sign it:
All full-time and regular part-time production, shipping, and
receiving employees employed by the Respondent at its
Phoenix, Arizona manufacturing facility, excluding all other
employees, office clericals, confidential employees, guards,
and supervisors as defined in the Act.
(g) Upon approval of this stipulation by the Board and receipt of the Notice(s)
from the Region, which may include Notice(s) in more than one language as deemed
appropriate by the Regional Director, the Respondent will post in conspicuous places in
and about its facility in Phoenix, Arizona, including all places where notices to
employees are customarily posted, and maintain for 60 consecutive days from the date
of posting, copies of the attached Notice marked "Appendix A"1 (and versions in other
languages as deemed appropriate by the Regional Director) made a part hereof, said
Notice(s) to be signed by a responsible official of the Respondent and the date of actual
posting to be shown thereon.
(h) In addition to physical posting of paper Notices, Notices shall be
distributed electronically, such as by e-mail, posting on an intranet or an internet site, or
other electronic means, if the Respondent customarily communicates with its
employees by such means. The electronic posting shall remain posted for 60
consecutive days from the date it was originally posted. The Respondent will e-mail the
Region’s Compliance Officer at Miguel.Rodriguez@nlrb.gov with a link to the electronic
posting location on the same day as the posting. In the event that passwords or other
log-on information is required to access the electronic posting, the Respondent agrees
to provide such access information to the Region’s Compliance Officer. If the Notice is
distributed via e-mail, the Respondent will forward a copy of the e-mail distributed to the
Regional Compliance Officer.
(i) The Notice(s) will be read aloud by a responsible agent of the
Respondent, by or in the presence of Murray Cohen (Cohen), Lynee Carlson (Carlson),
and Lorena Orive (Orive), and in the presence of an agent of the Board, or, at the
Respondent’s option, by an agent of the Board in the presence of Cohen, Carlson, and
Orive, to all employees employed by the Respondent at the Respondent’s facility,
including at multiple meetings and in Spanish and other languages, if necessary as

1 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."
5
determined by the Regional Director, to ensure that it is read aloud to all employees,
within 14 days from the commencement of the standard posting period.
(j) This stipulation is subject to the approval of the Board and, immediately
upon the approval by the Board, it will be retroactively effective to the date of execution
of the stipulation.
(k) Within 21 days after service by Region 28, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to
the steps that Respondent has taken to comply.
Dated, Washington, D.C., April 30, 2012.
___________________________________
Mark Gaston Pearce, Chairman
___________________________________
Terence F. Flynn, Member
___________________________________
Sharon Block, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
6
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
PURSUANT TO A STIPULATION PROVIDING FOR A BOARD ORDER AND A
CONSENT JUDGMENT OF ANY APPROPRIATE UNITED STATES COURT OF
APPEALS
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union;
Choose representatives to bargain with us on your behalf;
Act together with other employees for your benefit and
protection;
Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights. More
particularly:
YOU HAVE THE RIGHT to join with your fellow employees in concerted activities.
These activities include complaining to one another and discussing with each other
unsafe working conditions and raising complaints about unsafe working conditions to
us, to the Arizona Division of Occupational Safety and Health (ADOSH), and to other
third parties. WE WILL NOT do anything to interfere with your exercise of those rights.
WE WILL NOT threaten you by informing you that you are being discharged because
you engaged in concerted activities with other employees.
WE WILL NOT threaten you by having a uniformed police officer present when we
discharge you.
WE WILL NOT lay you off, fire you, or cause you to quit because you engaged in
concerted activities, including by making work-related complaints to us, to ADOSH, or to
other third parties.
WE WILL NOT fire you because of your union membership or support.
WE WILL NOT, upon request, fail or refuse to bargain in good faith with the United Food
and Commercial Workers Union, Local 99, AFL-CIO (the Union), as the exclusive
collective-bargaining representative of our employees in the following appropriate unit
(the Unit):
7
All full-time and regular part-time production, shipping, and
receiving employees employed by the Respondent at its
Phoenix, Arizona manufacturing facility, excluding all other
employees, office clericals, confidential employees, guards,
and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL recognize the Union as the exclusive collective-bargaining representative of
the Unit, and WE WILL bargain in good faith with the Union with respect to rates of pay,
wages, hours of work, and other conditions of employment, and if an understanding is
reached, embody such understanding in a signed agreement.
WE WILL offer to Maura Karina Ortiz (aka Victoria Carranza de Ortiz), Elba Tenchilt,
Maria Antonia Vargas, Rosa Isela Chavira, Rosa Jurado, and Laura Giron immediate
and full reinstatement to their former positions of employment or, if these positions no
longer exist, to substantially equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed, provided that they complete within a
reasonable period of time appropriate employment forms and present appropriate
documents to allow the Respondent to meet its obligations under the Immigration
Reform and Control Act of 1986; Benito Sanchez does not seek reinstatement to his
former position; and WE WILL make whole Maura Karina Ortiz (aka Victoria Carranza
de Ortiz), Elba Tenchilt, and Maria Antonia Vargas for any loss of earnings and other
benefits suffered as a result of our discrimination against them, with interest.
WE WILL remove from our files any reference to our unlawful discrimination against
Rosa Isela Chavira, Maura Karina Ortiz, Rosa Jurado, Benito Sanchez, Elba Tenchilt,
Maria Antonia Vargas, and Laura Giron, and WE WILL notify them in writing that this
has been done and that our unlawful conduct will not be used against them in any way.
CACTUS BAY APPAREL, INC.
(Employer)