Colton Sportswear Mfg.Download PDFNational Labor Relations Board - Board DecisionsMay 27, 1970182 N.L.R.B. 825 (N.L.R.B. 1970) Copy Citation COLTON SPORTSWEAR MFG. 825 Marvin Rosenberg and Leon Frieden and Henry Kramer, Co-Partners , d/b/a Colton Sportswear Mfg. and Inter- national Ladies Garment Workers Union , Local 451. Case 31-CA-1457 May 27, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On February 2, 1970, Trial Examiner Henry S. Sahm issued his Decision in the above -entitled proceeding, finding that Respondents had engaged in and were engag- ing in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action , as set forth in the attached Trial Examiner ' s Decision . The Trial Examiner further found that Respondents had not engaged in certain other alleged unfair labor practices and recommended that the com- plaint be dismissed with respect to these allegations. Thereafter , Respondents filed exceptions to the Trial Examiner ' s Decision and a supporting brief ; the Charging Party filed a brief in answer to Respondents ' exceptions; and the General Counsel filed cross-exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the National Labor Relations Board has delegated its powers in con- nection with this case to a three -member panel. The Board has reviewed the rulings of the Trial Exam- iner made at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed.' ' We find no merit in Respondents' exception to the Trial Examiner's ruling refusing to order counsel for the General Counsel to deliver to Respondents ' counsel the notes the General Counsel's trial attorney prepared for the hearing during prehearing interviews of the General Counsel ' s witnesses Respondents contend that the notes were substan- tially verbatim accounts of the witnesses' oral statements to the General Counsel and, thus, should have been available at the close of the witnesses ' direct examination for impeachment purposes. The Trial Examiner , after an in camera inspection of the notes , ruled that they were material prepared for trial and therefore unavailable. Sec. 102 . 118 of the Board ' s Rules and Regulations , modeled after the so-called Jencks Act, 18 U.S.C. Sec . 3500 , provides, inter alia, that any "statement" in the possession of the General Counsel at the close of the direct examination of a witness called by the General Counsel , which relates to the subject matter of the direct testimony, shall be delivered to respondent for purposes of cross-examination. "Statement" is defined , in pertinent part , as,"a stenographic , mechanical, electrical , or other recording , or a transcription thereof , which is a substantially verbatim recital of an oral statement made by said witness to an agent of the party obligated to produce the statement and recorded contemporaneously with the making of such oral statement " The notes at issue , which we have considered , as they were made a part of the record , apparently represent the General Counsel's trial attorney ' s summaries of the information given him by his witnesses before the hearing , at a question-and-answer session . While the notes were prepared as the witnesses gave their version of the case ' s facts, rather than afterward from memory , we find that they are not substantial- ly verbatim accounts of the witnesses ' oral statements within the meaning of Sec. 102.118. As noted by the Supreme Court in Palermo v. United States, 360 U.S 343, wherein the Jencks Act was interpreted, since the purpose of the statute is to restrict the use of the statement to impeachment The Board has considered the Trial Examiner ' s Decision, the exceptions and brief , the cross -exceptions and brief, and the answering brief , and the entire record in this case , and hereby adopts the findings , conclusions, and recommendations of the Trial Examiner , with the follow- ing change:' Nancy Tortez was rehired by Respondent on June 10, 1969 , while the other discriminatees have yet to receive offers of reinstatement. In his recommended Order , the Trial Examiner inadvertently omitted Tortez from the backpay provision of paragraph 2(a) and includ- ed her in the provision of paragraph 2(b), providing for reinstatement upon discharge from the Armed Forces of the United States . We shall order that these oversights be corrected . We will likewise correct the Appendix. ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended , the National Labor Relations Board hereby adopts as its Order the recommended Order of the Trial Examiner , as modified herein, and orders that the Respondents , Marvin Rosenberg, Leon Frieden , and Henry Kramer , co-partners , d/b/a Colton Sportswear Mfg., Colton , California , their agents, suc- cessors , and assigns , shall take the action set forth in the Trial Examiner ' s Recommended Order, as so modified: J. Delete the present paragraph 2(a) of the Trial Exam- iner ' s Recommended Order , and substitute the following: "(a) Offer to Inez Gonzales , Teresa Soto , Nita Par- sons , and Estela Marmolejo immediate , full, and uncon- ditional reinstatement to their former jobs or , if those jobs no longer exist , to substantially equivalent positions, without prejudice to their seniority or other rights , privi- leges , or working conditions , and make them , and Nancy Tortez , whole for any loss of earnings they may have suffered by reason of the discrimination in the manner set forth in the section hereof entitled The Remedy. "76 2. 'Delete the present paragraph 2(b) of the Trial Exam- iner ' s recommended Order , and substitute the following: "(b) Notify Inez Gonzales , Teresa Soto , Nita Parsons, and Estela Marmolejo if they , or any of them, are presently serving in the Armed Forces of the United States, of their right to full reinstatement upon applit a- tion , in accordance with the Selective Service Act and purposes, the statement should contain the witness ' own expressions and not be "the product of the investigator ' s selections , interpretations and interpolations ." Clearly, the statement sought by Respondents here- in, representing the trial attorney 's version of the facts in a form suitable for trial preparation , is outside the scope of Sec. 102.118 We note, moreover , that the General Counsel made available for cross- examination his witnesses ' affidavits , in accordance with the usual proce- dure. Y Since the Trial Examiner granted the General Counsel's motion to correct the transcript so that , inter alia , the amended complaint which formed the basis of the Trial Examiner's "commerce finding" reads that Lee Mar of California , for whom Respondents perform services, "annually purchases and receives " goods and materials, ,we hereby rectify an obvious oversight and correct the trial Examiner's Decision to read , at p. 2, 1 32, "receives goods and materials valued in excess of $50,000 directly," rather than "sells goods " 182 NLRB No. 123 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces " 3 Delete the paragraph of the Appendix beginning "WE WILL offer to " and substitute therefor the follow- ing WE WILL offer to Inez Gonzales, Teresa Soto, Nita Parsons, and Estela Marmolejo immediate and full reinstatement to their jobs with us, or if those jobs no longer exist, to substantially equivalent positions, and pay them, and Nancy Tortez, the wages they lost because of their layoff or discharge 1966 4 During the past 12 months , Respondent, in the course of its business operations at the Colton plant, performed services within California of a value in excess of $50,000 for Lee Mar of California , a nonretail enter- prise which annually purchases and sells goods and materials, valued in excess of $50 ,000 directly from sup- pliers located outside the State of California It is admit- ted and found that Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) .,f the Act II THE LABOR ORGANIZATION INVOLVED TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HENRY S SAHM, Trial Examiner This proceeding, under Section 10(b) of the National Labor Relations Act, was heard in San Bernardino, California, before Trial Examiner Henry S Sahm, beginning on September 16 and concluding on September 26, 1969 The complaint, which issued on July 22, 1969, on a charge dated May 29, 1969, alleges, in substance, that the Respondent,' in violation of Section 8(a)(1) of the Act, created the impression of surveillance,2 threatened retaliation for employees who signed union cards, and in considering applicants for employment used a written form inquiring as to the applicants' u.,ion affiliation In addition, the complaint alleges violations of Section 8(a)(3) of the Act in that certain employees were "laid off" and dis- charged because they engaged in union activities 3 1 The Respondent filed an answer denying the commis- sion of any unfair labor practices, contending that there was a valid economic reason for "laying off" all the employees named in the complaint and that those who were not recalled to work were not taken back for valid business reasons Following the hearing, briefs were filed by the General Counsel and Respondent on November 17, 1969, and have been fully considered The transcript is hereby corrected in accordance with the Genera) Counsel's motion dated November 20, 1969 Upon the entire record in this case, including the briefs, and from observation of the demeanor of the witnesses while testifying, the Trial Examiner makes the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent, a partnership, is engaged in the manufacture of ladies garments at its plant located in Colton, California, which they acquired in December ' The original name Colton Sportswear Mfg Co was amended at the hearing ' The complaint was amended at the hearing to read as follows 15(a) Respondent during the month of April 1969 and continuing thereafter engaged in or created the impression of engaging in surveillance The terms laid off fired and discharged are used interchangeably International Ladies Garment Workers Union, Local 451, the Union herein , is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Introduction The Union initiated an organizational campaign in October or November 1968 among the Respondent's approximately 60 employees Weekly union meetings were held thereafter, attended by various employees The union officials, who conducted the meetings, distrib- uted union membership application cards to the employ- ees in attendance at these organizational meetings Some of these employees signed union cards and solicited other employees to sign these cards for the eventual purpose of having the Union represent them in collective- bargaining negotiations with the Respondent Beginning in the latter part of March 1969, there was a changeover in the styles of Respondent's then current line of blouses to the new fall fashions This changeover caused a decrease in production which, in turn, resulted in a 3- or 4-day layoff on April 21, 1969, of some of the employees In the beginning of May 1969, five of the alleged discnminatees began wearing aprons at work which had the Union's emblem printed on them A week later, about May 12, one of the partners assembled all the employees and warned them that they were engaging in a slowdown and anyone who was found to be involved in such conduct would be discharged However, he did assure them no one would be fired for union activities On the morning of May 22, three of the alleged discnminatees were questioned by a police officer, called in by the plant manager to investigate the thefts of garments from the plant Shortly after the police officer left the plant, the three girls who were questioned were "laid off"5 along with two other alleged discrminatees One of these five employees returned to work on June 9, 1969, but the other four were never recalled Four other employees are alleged also to have been discrimina- torily laid off for one day When the component parts of the garments came to the plant unassembled from a' cutting factory it was Respondents function to sew these parts together and press and finish the garments S Layoff temporary prolonged or final separation from employment as a result of lack of work Dictionary of Labor Law terms (2d ed 1953) Commerce Clearing House p 72 COLTON SPORTSWEAR MFG. i B. The Testimony 1. Inez Gonzales Gonzales was employed by the Respondent from July 1967 until May 22, 1969, checking blouses for defects; packing them for shipment, and maintaining records showing the quantity shipped. She began' going to the union meetings in early April at which plans were dis- cussed for organizing Respondent's employees. About the same time, Gonzales signed a union authorization card, and she solicited 10 of her coworkers to sign union cards, 2 of whom did. About the first week in May 1969, she began to wear, while at work, an apron given to her by the Union6 which had printed on it the union label. She continued to wear this union apron until her- "layoff" at 2:30 p.m., on May 22, 1969, almost 2 hours before the regular quitting time of 4 p.m. On the same day, May 22, she wore a union button which read: "UNION MADE FOR UNION MAIDS." I . Shortly after Gonzales began wearing her union apron at work, Ann Hand, a supervisor within the meaning of Section 2(11) of the Act and the wife of Harold Hand, manager of Respondent's Colton plant, scolded Gonzales for removing' clothes hangers from, a rack and placing them on a table. Gonzales explained that Mr. Hand had instructed her to do this, whereupon Mrs. Hand told her to go home for the rest of the day. Gonzales testified that she appealed to Mr. Hand, asking him, "Why ' am I being sent home for half a day and missing my work. `And he said, to teach me a lesson not to disregard, orders.' And I said, Well, then, am I fired? And he said, 'No, come back tomorrow morning ,.' So I clocked out and I went home." Working with Gonzales in packaging, checking blouses for defects, and shipping them, was Nancy Tortez, another alleged discriminatee. Gonzales and Tortez also, on occasions, cleaned any blouses that became soiled as they were processed through the plant, but this clean- ing of soiled garments never took more than one hour per day as Flora Aceto, a floorlady, did most of this type of work. However, about May 12, Mr. Hand told Gonzales and Tortez that they were to take over Aceto's job of cleaning soiled garments in addition to their ususal duties of packaging, examining blouses for defects, shipping , and recordkeeping: At the time they were given thesp• additional duties, Hand turned over to them approximately 500 soiled blouses, an assignment which Gonzales testified, "would have taken a few days of washing all day." It appears Aceto also assumed additional duties at this same time; namely, checking for shortages. ' On Friday, May 16, Aceto who is referred to i as the floorlady and floor manager told Gonzales and Soto, another alleged discriminatee, "to go home for the rest of the day. And I [Gonzales] asked her why. She said, `Ask the boss.' And we didn't ask him that day. We. " Union personnel had distributed these aprons on the sidewalk in front of the plant as the employees left work. 827 left. Monday morning when we came in to work, we went to the office and we asked Mr. Hand, we would like to know why we were sent home the previous Friday when there was work for us to do, and he said, no one tells him how to run his business; and I said, Mr. Hand, I am not telling you anything. I was just asking a sirpple question. And he said, `I don't have to tell you anything.' " On the morning- of May 22, a plainclothes policeman, Lt. Hughes of the Colton Police Department, questioned Gonzales at the plant about alleged thefts of blouses. He asked her if she had seen anyone steal blouses, "put a blouse inside' of a bag in the icebox,"' to which Gonzales replied in the negative. Lt. Hughes also asked her if she would report to the Hands any employee whom she saw stealing blouses . She refused , stating that she would not volunteer the information but if they asked her if she had seen a specifically named employee stealing garments, she would tell them. Her testimony continues that Lt. Hughes asked' her if she would be willing to take a lie detector test and she replied in the affirmative, to which he added: "Well, then, I just may take you up on 'that and you will take a lie detector test, and I said, O.K.," but Gonzales was never given such a test. Gonzales testified that she knew there were "short' ages " occurring because she had maintained the records of all blouses shipped from the plant ever since she was first employed by Respondent in July 1967. Whenev- er this occurred, Gonzales stated, she so advised Hand, the plant manager. Gonzales stated that when Aceto told her about 2:30 p.m., on May 22, to go home she went to the Respond- ent's office and was given an "unemployment card"8 which was signed by Hand and stated she was being laid off for "lack of work." Also, Gonzales testified, she is "sure" Hand told her at this time that it was "a temporary layoff" and that nothing was said by Mr. Hand, Mrs. Hand, or Aceto on May 22, that she was being laid off because of their suspicion that she had stolen blouses. On her cross-examination, Gonzales, in answer to a question by counsel for the Respondent, stated that Lt. Hughes' told her that he had it on good authority that she-had been "taking" blouses. I Gonzales' returned to the plant on May 29 to obtain a statement she needed in order to apply for unemploy- ment benefits. While there she observed an employee named Sheryl Boswell performing the work she formerly did. Gonzales said that Boswell came to work for Respondent in either March or April 1969, almost 2 years after she had been employed by Respondent. Gonzales, accompanied by Tortez, Parsons, and Soto, also' alleged discriminatees, went to the plant on May 29 and asked Hand when they would be recalled to work and he replied "in a week or two." Then he proceeded to say, continues Gonzales' testimony, "right ' This is an unmistakable referencelto a refrigerator which Respondent maintained for the use of employees who kept their lunch bags in the refrigerator . See Sec B, 10, infra. ' See Resp . Exh. 1.' 1 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD now I am counting the shipment myself, and everything is coming out perfectly, and then Nancy [Tortez] said, you mean to tell us that since we are not there that the lots are coming out perfectly. And Mr. Hand said, Don't put words in my mouth. Then Terry [Soto] said, Mr. Hand, what about me? I am a presser, and my department is not concerned with that. And he said that goes for everyone back there. Everyone is being checked out." On June 6, Gonzales returned to the plant for her paycheck and saw Nita Ruano, who was employed by Respondent before Gonzales, performing the duties Gonzales formerly did. At the time Gonzales was "laid off" by Respondent, - Ruano's job was setting sleeves in the blouses. 2. Nancy Tortez Tortez whose testimony, both on direct and cross- examination is set out below, was hired by Respondent, Colton Sportswear, in September 1967 and is presently working for them. In the, spring of 1969, she 'assisted Gonzales in checking, packing, and shipping blouses. Tortez signed a union card on November 18, 1968, and began attending union meetings in April 1969. About May 5 or, 6, she 'began to wear an apron at work which had the union emblem on it and continued to wear it until her "layoff" on May 22, 1969.0 She testified, however, that there were days when she did not wear the union apron "because [she] was afraid to wear it . . ." She also wore a union button on May 22, the day she was laid off, which had upon it the union label and the words: "LOOK FOR OUR LABEL- WE'LL LOOK FOR YOURS." Tortez testified that when Nita Parsons, another alleged discriminatee, was laid off at 11:30 a.m. on May 22 she gave her union button to Tortez who then wore it until she, too, was laid off the same day at 2:30 p.m. On or about May 12, Mr Hand advised Gonzales and Tortez that production had slowed down and it would be necessary for one of them to be laid off the first week and the other the second week. Tortez= told Hand that she would accommodate Gonzales by agreeing to take off those two weeks so that Gonzales could continue to work without interruption. This was agreeable to Hand. Tortez then left the following day to visit .her mother in San Diego County. Shortly after she left her home in San Bernardino, Tortez' husband. received, a phone call on May 13 from Mr. Hand that she should report for work the following day. Her husband explained to Hand that Tortez was out of town visiting her mother and he did not know if he could reach her, because her mother did not have a telephone. The following day, May 14, Mr. Tortez received a telegram at home addressed to his wife from 6 Layoff:Termination of employment at the will of the employer, without prejudice to the worker, usually resulting from general economic conditions or conditions within the establishment. Employees who have been laid off, generally retain their seniority rights to reemployment for a specific period of time. Labor Dictionary, Casselman, Philosophical Library (New York, 1949). Mrs. Hand notifying Mrs. Tortez that if she did not report for work the following day, Respondent would consider it a voluntary resignation . When her husband located Tortez, arrangements were made for her brother- in-law , who lives in San Diego , to drive her to San Bernardino . 10 Tortez reported for work on May 15. On May 7 or - 8, after Tortez started wearing her union apron to work , Mr. Hand told her to drape some pinned blouses . Tortez testified that shortly thereafter, Mrs. Hand said , "I had draped some blouses that should not have been packed , and I explained to her that Mr. Hand had given them to me and told me to drape them, and she said , he didn 't tell you that, and I said, yes, he did tell me that . So I went back and asked Mr. Hand if those blouses had not been inspected, and didn't you tell me to drape them , and he said that I was to inspect them again before I draped them." Tortez testified nothing like this had ever happened before in the entire 20 months she had been working for Colton Sportswear ; that , prior to the time that she began wearing a union apron , not only had the quality' of her work never been criticized but she had been given a pay raise of 10 cents an hour as recently as April 1969. However , her testimony continues , the Hands suddenly became critical of her work immediately after she begn wearing the union apron in early May. On May 22, Tortez was questioned while at work by Lt . Hughes of the Colton Police Department. Her testimony reads: He asked me if I knew anything about the shortages, and I said no, and he asked me if I had knowledge or seen anyone stealing a blouse, and I said no, and he said if I would tell, that Mr. Hand had assured him that I wouldn 't be fired , and I stated that I didn 't know , I didn't see anyone, that I just did my job.. . . And I said I had expected something like this .. . . I said I was waiting for some accusation. . . . At the time I just said I had expected something like this to happen. . . . I explained [to Hughes], that , I had become active in the union . •. . . I asked him if I was being accused . He said No. Tortez testified that "some of the girls purchased blouses and walked out of the factory with them. I don't know whether they were buying them or they were stealing them ." Tortez stated that at various times, she had purchased blouses at the plant , and on one occasion she bought "seconds , and I didn 't even bother to leave them on the hanger . I went into the office and paid for it and I just draped it over my arm and walked out." A few hours after Tortez ' interview with Lt. Hughes concluded on May 22 , Mr. Hand told her at 2 : 30 p.m., - "that I would be laid off due to lack of work ." Tortez testified that no reason was given by Hand for the layoff and that all he said was "We will call you." '" On cross-examination, Tortez testified that when her husband reached her by phone, "he told me that he had received this telegram, and he asked me if I wanted to go back to work the next day, because if I didn't, I would be fired." COLTON SPORTSWEAR MFG. She did testify , however , that at the time of the layoff; she and Gonzales had 500 to 600 soiled blouses to clean. Tortez , accompanied by-Gonzales , Parsons , and Soto, all alleged discriminatees , returned to the plant on May 29 to obtain an "unemployment card ." They spoke to Mr . Hand and asked him when they would be called back to work and he replied "probably" in .10 days. Tortez testified that Hand told them there were no missing blouses since he , personally began keeping records of the number of blouses being shipped from the plant ." Tortez then asked him, "if he meant that I had been stealing , or we had all been stealing the blouses, and he said something about putting words in his mouth . . . . And I explained that I didn 't always work in the [shipping ] department , that I often set buttons and why was I laid off ." Hand replied, according to Tortez : "Something about we didn 't have to know, he ran the business , it was none of our concern.. . . I run the business . I run the shop . I don 't have to answer you." Tortez testified that she next returned to the plant on Monday , June 9, on her own initiative and asked Hand if she had been "fired and why . I explained that since I had worked for Colton I had had at least five bosses and I had never once been told that I didn ' t do my job right ." Her testimony continues as follows: And then Mr. Hand continued to explain about the fact that the blouses ' had been stolen after they had passed the trimmers , and I asked Mr. Hand if he was accusing me, and he said no, and then I explained to Mrs . Hand that I would like the job . . . . Mrs. Hand made a statement that she was surprised to hear that , I would say things against the company and she went on to state that someone had said that I had said that we were treated like dogs in that factory, and I denied the statement and I asked her why- I didn ' t exactly ask her who 'said it . I just denied it. And Mrs. Hand made the statement, like, well, when things are stated over and over again they sometimes come out sounding worse than it was originally said . I told her I wouldn't become involved in any union-pardon me-I ' wouldn't become involved in any organization . I told her that . I didn 't want to be connected with the other girls, whether they were working or anything, if I came back to work I wanted to be left completely alone and just to do my job , and then Mr. Hand informed me that he had lost my application blank, or whatever you call it , so, well, he asked me if I would fill out another one, and I said I would. At that time Mrs. Hand stood up and told Mr. Hand that it was up to him . Before that, he explained that he had nothing against my working 11 Hand ' s version of this is that he told them they would be recalled, "possibly in a week or two but I would give them no definite time until I had completed my check on the missing garments . I said I don't know how long this will take " 829 ability , that I was a good worker , and Mrs. Hand stood up and said , that it was up to him, if he wanted to rehire me. I received an application blank , and I then-I believe the secretary came in then , and I set down and started to fill it out. .. . So, then , he lifted up the first paper and asked me to sign , the next one , which was the one, are , you affiliated or a member of any union, and I wrote no , and then he asked me when it would be convenient for me to start to work, and I said I would like to start the next day, and he asked me to be there the next day. . . .12 Hand ' s version of this conversation which eventuated in Tortez returning to work is as follows. When Tortez said she wanted to return to work , Hand and his wife told her "We were surprised that she was in the slow- down and damaging garments. . . . To me the other activities were slowdown and damaging garments." After Tortez was rehired and returned to work on June 10 , Alice Marcias ,.a coworker , told her that Aceto, the floorlady, had said that " someone was calling [Tor- tez] on the phone and she thought it was Inez Gonzales but that they were hanging the phone up on her. . . . I didn 't question it any further," continued Tortez' testimony , "until I got home from work and my little boy had stayed home from school because he was' sick . He asked me why I hadn 't been called at work, why I didn 't call him back , and I told him, as far as, I know , no one . had called me to the phone at the factory . I didn 't know why . The next morning, June 11, I asked Flo [Aceto] why I was not able to receive phone calls, and she said . . . . No kidding? .. . Then I approached Mr. Hand and I asked him why I was not able to receive phone calls. . . . He explained that they were trying to protect me, that they thought Inez Gonzales was threatening me because I was working and she was not. . . . I said that I could take care of myself if anybody was threatening me I would take care of myself." Tortez was only present at one of the two speeches that Rosenberg, a partner of the plant , made to the assembled employees . 13 She testified that Gonzales asked Rosenberg if employees would be , fired if they signed union authorization cards , and he answered: "No, that we had a perfect right to any union we wanted to." Tortez testified that after some of the employees started wearing the union aprons , and at a time when there was a'seasonal change in the style of the blouses, a new ' kind of material was used in the new style blouses which was more difficult to work with than the material used in the previous season's blouses. As a result, Mr. and Mrs. Hand decided it would be neces- sary to press the entire blouse. Tortez testified that she'-stands right next to the pressers " and she observed that this resulted in the production of the pressers being slowed down. Tortez testified that when this occurred, Mrs. Hand " started yelling at all the pressers and telling them that they were going too slow and that if they 1 12 See G . C. Exh. 8. 13 See sec. A, supra 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD didn't speed up or hurry and get them out, that they would be replaced." Two of the pressers to whom this warning was directed were Teresa Soto and- Estela Resendez 14 alleged discriminatees.15 - - Tortez concluded her direct examination by testifying that 2 or 3 weeks after she began working for Respondent in September 1967, assisting Gonzales in the finishing and shipping department, she learned there were "short- ages" in the garments manufactured at the Colton plant. Tortez also testified that no investigation, such as her being questioned by the police about the theft of blouses, was made by Respondent until- after the, girls started wearing the union aprons. _ On cross-examination , Respondent ' s counsel made reference to Tortez' testimony on direct that she was "afraid" to wear the union apron and when she was asked the reason for this fear, she answered: "Because when I saw Inez [Gonzales] wear the apron, Mrs. Hand was continually harassing her, everything she did was wrong, and I was afraid to wear,. the apron because I didn't want to be picked on." , When counsel- for the Respondent asked Tortez if Mr. or Mrs. Hand had ever mentioned, the word "union" to her, she answered: No, except on one occasion when she 'referred to-Well, I took it to mean-When she said other activities, I assumed it was the union because I hadn't become involved in any other organiza- tion." Tortez' testimony continues: "I just told Mr. and Mrs. Hand that I wouldn't be coming-wouldn't become involved in any organization, I didn't say the union I just said I wouldn't become involved. This was on the day when • I went back and asked for my job back on June 9th." 3. Teresa Soto Soto was employed by, Respondent from December 26, 1967, to May 21, 1969. She was originally hired as a blouse folder but was later assigned to various duties including service girl, trimmer, setting buttons, pinning, tagging, and buttonhole operator, but most of the time she worked as a presser. When she was 'a' presser, she was paid on a piecework basis. Soto signed a union card on November 13, 1968, and attended the union's weekly meetings. During the months of March and April 1969, she talked to various girls about' the Union, distributed union cards, and solicited seven or eight employees to sign these cards. She was one of the five employees who began to wear a union apron beginning in the early part of May until she was "laid off" on May 21, 1969. She was never recalled by Respondent. Soto testified that after she began wearing the union apron Mrs. Hand's attitude towards her changed in that she criticized the quality and quantity of her work, whereas she had never been reprimanded, "like this" " Resendez was laid off on May 21 and recalled on June 2, 1969. Hand testified that he told the pressers some time in May they were deliberately slowing down and "if they couldn ' t give me the production , I would add more pressers " ' before she began wearing the union apron. She testified that during the second week in May, Mr. Hand called the pressing department employees to his office and told them, "that if we didn't speed up he was going to replace us with a bunch of new pressers." She also testified that prior to her wearing the union apron, the blouses which the girls pressed were placed in a basket and then divided up by the girls among them- selves. However, after she started wearing the union apron, the blouses were placed in individual bundles and assigned by Aceto, the floorlady, to each presser. Soto claimed that under this arrangement she would receive bundles containing approximately eight blouses, whereas some of the other girls would receive bundles containing as many as 20 blouses in them which caused her production to suffer. She testified also that in the latter part of April when they began to change over to the new style blouse a' material was, used in the gray blouses that made it more difficult to press, and that she was given 'a disproportionate number of these gray blouses to press, so that her piecework production record decreased considerably. Soto also stated that when she ran out of work and so notified her supervisor, Aceto,''that the latter would often ignore her and not assign her any additional work until some time later which resulted in a further decrease in her production. Soto testified she complained to Aceto that her produc- tion, was falling because of the small bundles that were being distributed to her. Shortly thereafter, Mr. Hand came to Soto's workstation in the pressing department and said to her that ' he understood that she was not satisfied with the way the work was being distributed. Soto testified that Hand then said to her: "Well, if you don't like it [the way the work was being distr ibuted] you can come every day and count, spend one hour counting each and every one of the blouses, but, he said, but you aren't `going to get paid for it." As a result of these conditions; testified Soto, her 'earnings, which previously averaged $2 to $3 an hour, decreased to the point where she- was making only her minimum hourly wage rate of $1.65. Marvin Rosenberg, one 1 of the partners of Colton Sportswear, spoke to the assembled employees on or about May 12, 1969. Soto testified as follows: "He told us that it had come to his attention that there was a slowdown because of the union activity and that if we kept that up he was going to fire us, and he said, I , want to make it plain that I am, behind Mr. and Mrs. Hand 100 percent,. and he also said to the group they [the Hands] are the only bosses around here ." On her cross -examination , Soto stated that Rosen- berg had assured the employees nobody would be fired for joining the Union provided their union activity was confined to their lunch peri od and coffeebreaks. On cross -examination when Respondent ' s counsel asked Soto if the Hands had ever discussed with her the quality of her work or' the manner in which she was, doing , her work prior-to her becoming involved in union activities, she replied that she could not recall. She went on to state, however, that Mrs. Hand was "a little bit hard to get along with on occasions and COLTON SPORTSWEAR MFG a little bit temperamental " Her testimony continues that she had heard Mrs Hand on occasion speak sharply to other employees about minor mistakes but that such criticisms had never been made to her prior to her interest in the Union She also testified on cross -examina- tion that after union activity commenced Mrs Hand spent more time in the pressing department observing the girls' work than before the advent of the Union Moreover , testified Soto on her cross -examination, Mrs Hand was "constantly" in the pressing department begin- ning sometime after a short layoff which occurred about April 21, 1969 On his cross-examination , Mr Hand was constrained to admit that Soto was the fastest presser 4 Nita Parsons Parsons, who was hired by the Respondent on Septem- ber 14, 1968, was laid off on May 22, 1969, and never recalled At various times during her employment by Respondent , she performed the following duties trim- ming off threads , pressing , buttoning and tagging blouses She was paid on a piecerate basis "I Parsons signed a union card on November 21, 1968, and attended the weekly union meetings beginning in March 1969 which were held at the Mexican Confederation Hall She also asked another employee, about May 21, to sign a union card while she was in the pressing department during a coffeebreak She testified that in addition to herself, the following employees regularly attended the union meetings Gonzales, Tortez, Soto, and Marmolejo Parsons was laid off on April 21, 1969, for 3 or 4 days and when she was notified of this, Aceto, her floorlady, told her that they had run out of work She testified that prior to the April 21 layoff she had never been laid off for lack of work Sometime in the beginning of May, union personnel handed out kits on the sidewalk in front of the plant to the employees as they were going home at the end of the workday Included in these kits were aprons which had printed on them the seal of the Union Of the approximately sixty employees in the plant, the only ones who wore these union aprons were Parsons, Soto, Gonzales, Tortez, and Marmolejo, all alleged dis- criminatees Parsons began to wear her union apron about May 1 and continued to do so until May 22 when she was "laid off " She also wore a union button when she came to work at 7 30 a m on May 22, and continued to wear it until she was notified the same day at 11 30 a m that she was laid off When this occurred, she gave her union button to Tortez who '" Various employees in testifying used the expression making their time or making their minimum which means that in order to make their minimum it was necessary that they produce a sufficient amount of work to equal $13 20 per 8 hour day This is based on the Federal Minimum Wage Law which requires an employer to pay his employees a minimum wage rate of $1 65 per hour so that on a basis of an 8 hour day this amounts to $13 20 per day If an employee s piecerate production does not amount to $13 20 each day this means that the employer must make up the difference between what she actually earned and what the Federal Minimum Wage Law requires that the operator be paid 831 then donned it and wore it until she was notified of her layoff at approximately 2 30 p m the same day Parsons testified that about May 21 , at a time when she was buttoning blouses, Mrs Hand came over to her and said , "If I light a fire under you, do you think you can move any faster ' See that girl [Doris Polizzi] down there ? I hired her because you are so slow " i7 Parsons testified that prior to this inci- dent, neither of the Hands nor Aceto , the floorlady, complained about her work nor had she even been warned by them that she would be fired if she did not increase her production On the morning of May 22 , Parsons was questioned by Lt Hughes of the Colton Police Department and her testimony with respect to this incident reads as follows [Lieutenant Hughes] stated , you are not being sin- gled out , but do you know of any blouses being missing' And I said, no And he said , have you ever seen anyone take a blouse' And I said, no And he said , have you ever taken a blouse' And I said , no And he also said , If you knew of anyone that had taken one, would you tell' And I said , no And I also told him that I had not heard of any blouses or dresses being missing for at least a month She was questioned by Lt Hughes about 10 a m and shortly after his interrogation had concluded Mrs Hand notified her, about 11 am , that she could go home and about a half hour later Aceto , her floorlady, said to her "you can go home at lunch time and they will call you when they need you " Neither the Hands nor Aceto told her at that time why she was being laid off from work Parsons returned to the plant on May 26, in order to obtain an unemployment compensation card While she was in the plant , Parsons saw that an employee by the name of Dons Polizzi was working at her old job She spotted Mr Hand , walked over to him and asked, "Why is Doris still working here when I have been laid off'" Her testimony continued "I have been working here longer than she has and he said, don't tell me how to run my business And I said, I am not telling you how to run your business I just don't think that it is fair And he said, well, you have the right to your own opinion " Parsons testified that Doris Polizzi was hired by Respondent on May 20, 2 days before she was laid off On May 29 , accompanied by Tortez, Gonzales, and Soto , Parsons returned to the plant to receive her pay- check She asked Mr Hand when she could return to work and he said , "maybe in about a week or two " Parsons testified that Hand told her that he person- ally was now checking the pressing department's produc- tion of blouses in order to ascertain if there were any shortages occurring and "he said , they seem to be coming along perfectly, and I said, now, does that " See sec B 8 and B 11 infra 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mean we're the thieves? And he said, no. Don't put words in my mouth." Parsons testified that Mrs. Hand had always been "nice towards me" but after she began wearing the union apron , "she never spoke to me again except for the time she was angry, and she just looked at me like she could see through me." Parsons stated that Marvin Rosenberg , one of the three partners of the plant, spoke to the employees on two occasions. The first speech, which he gave in early May, had to do with the new type of material which was being used in the blouses that were about to go into production for the fall fashion line. He told the assembled employees that undoubtedly this new material would have a great number of flaws and if they should receive such defective material, they should ask for recuts. He also assured them that due to the changeover to the new fall blouses the work would be slowed down because the new material would be harder to work with than the material they had been using in the old line of blouses which was about to be discontinued . 18 Parsons ' testimony continues that about a week later Rosenberg again spoke to the employ- ees at which time he said : "there seems to be a definite layoff coming-a definite slowdown because of the union activities and he couldn't tolerate that, that if they knew of anyone deliberately slowing down they would be fired." A short time later , Parsons testified that she heard Mrs. Hand "getting on the pressers ." Parsons' testimony continues that Mrs. Hand told Sudi Mills, Estela Resen- dez, Teresa Soto, and a girl referred to only as "Sukie,"19 all pressers, "that she couldn't understand why they were slowing down, that they [Mr. and Mrs. Hand] had always been fair to them. Then Mr. Hand came up and he said, well, if that is the way they want it, I will hire new pressers." On cross-examination , Parsons stated that when she was hired she was told by Respondent she would be compensated on a piecerate basis and she would have to meet a specified production standard and if she wasn't able to do so after her indoctrination period that she would be terminated. She went on to testify that at no time prior to May 20 did Mr. or Mrs. Hand ever discuss with her whether she was meeting the plant's production standard. When Respondent's counsel asked Parsons if it was not a fact that she consistently did not make her weekly production quota, she answered: "I always usually made near it , even though I did not always make my time ." When counsel again asked her if it was not true that "generally" she fell short of her quota , she replied , "not generally." When Respondent ' s counsel then asked Parsons if by the expression "making her time" she meant she was turning out on a piecework basis a sufficient amount of produc- tion to equal $ 1.65 an hour , the minimum , Parsons replied in the affirmative . In concluding his cross -exami- nation , Respondent 's counsel asked Parsons if Flo Aceto, 'B See sec. B, 9. 19 Sukie ' s name is Kazuko her supervisor, had ever discussed the Union with her and Parsons answered she had. 5. Estela Maromolejo Marmolejo was employed by the Respondent as a trimmer from January 1969 until May 21, 1969, when she was laid off and never recalled . She signed a union authorization card in March 1969 and has continued to attend the weekly union meetings up until the time of the hearing in this proceeding. On April 21, 1969, she was laid off for about 4 days due to lack of work. She began wearing a union apron about the second week in May and continued to do so until her layoff on May 21. Marmolejo testified that about a week before she was laid off Mrs. Hand came up to her while she was at her workbench and said: "Where's your apron? Did you forget it? And I said, yes, I did. And she said, oh, you did, huh? And she started laughing and then her and Flo Aceto kept on walking." When Marmolejo was asked on her direct examination if she earned more or less than the $1 .65 hourly minimum wage she answered : " sometimes less, and sometimes the minimum ." She testified that in the early part of February 1969, about a month after she was hired by the Respondent , Mrs. Hand told her to speed up her work and showed her her production records. Marmolejo also testified that sometime in May , after she began wearing her union apron , Mrs. Hand again showed Mar- molejo her production records and said: "If I don't speed up she was , like, angry yelling at me , and she said, if you don't speed up, we are going to do something about this." Marmolejo testified that about a week or two before she was laid off on May 21, Mrs. Hand, for the first time , instructed her to show her all of the blouses she inspected as she wanted to check Marmolejo ' s work. Marmolejo's testimony continued that thereafter her bundles were returned to her with instructions to check them again. This had never occurred before and when she rechecked them she could find nothing wrong. How- ever, two of her coworkers, Mary Pogy and Avelina Hernandez, testified Marmolejo, never had their bundles returned to them for further inspection . Marmolejo also testified that when the bundles of blouses were distribut- ed she received small bundles , whereas the other girls would receive larger bundles of blouses . She went on to explain that her production was slowed because of this, in that small bundles have to be tied and untied more frequently than larger ones, and as a result, her production suffered. She also testified the blouses were made from two kinds of material, one of which is much easier to trim than the other . After she commenced wearing her union apron , however, she claimed that the blouses she received in her bundles were made from the material that was more difficult to work with which further decreased her production . Before she began wearing her union apron , Marmolejo testified, she received the same kind and amount of bundles as the other girls in the trimming department. COLTON SPORTSWEAR MFG. 833 Marmolejo testified that on May 21 there was no further work in the trimming department, whereupon Hernandez and Pogy, who worked in the same depart- ment, were assigned to other work in the plant. Marmole- jo, however, was told by Aceto to check out as there was no more work for her and they would notify her when to return. Marmolejo also testified that she had worked longer for Respondent than Hernandez. When she was told she was laid off on May 21, she testified that no one connected with management complained about the quantity or quality of her work. Nor, testified Marmolejo, was she ever warned that if she did not increase her production she would be discharged. Marmolejo's testimony with respect to Rosenberg's speech to the employees corroborates what the other alleged discriminatees testified to with respect to his warning that any employees engaging in a deliberate slowdown would be fired. 6. Estela Resendez Resendez, an alleged discriminatee, has been employed by Colton Sportswear since October 1968, as a hand presser. She was laid off on May 21 and returned to work on June 2. She neither engaged in any union activity nor did she wear a union apron or a union button. Shortly after she had returned from the May 21 layoff, Mrs. Hand told her that she was pleased with her work. When Resendez explained that she had had a good rest, Mrs. Hand made the arcane observation that "sometimes we have to do these things." Resendez also testified that she had heard there were thefts of garments in the plant but that she had never heard anyone say either Gonzales or Soto stole blouses. 7. Jacqueline Jarrard Jarrard was employed by the Respondent from Decem- ber 30 , 1968, until April 25, 1969, when she voluntarily left. She testified that at a time before Rosenberg gave his first speech to the employees she heard Mrs. Hand "telling some girls that the girls that signed the union cards would be fired ."20 In April of 1969, Mrs. Hand offered her Glenda Jolliff 's job which she had taken over temporarily. When Jolliff left, Jarrard told Mrs. Hand that she would be interested in continuing on with the job but not at her present wage scale of $1.65 an hour . Jarrard ' s testimony continues as follows: [Mrs. Hand] told me she is taking into consideration that they have to have someone on the floor she could trust because , you know , Mexicans was trying to-like , the Mexicans were trying to get in the Union , and she had to have someone she could trust and that would tell her things. On cross-examination , she again repeated that Mrs. Hand had told her she would have to have someone she could trust because Mexicans were trying to get the Union in the plant. She went on to testify on her cross-examination that Mrs. Hand told her that she needed someone who would tell her everything: like Glenda [Jolliff], she tells me things, about things. In other words, she wanted me to be like Glenda. . . . She said where she could depend on me to tell her things . . . everything-tell her everything I heard. 8. Harold Hand Harold Hand has been plant manager of Colton Sports- wear since September 30, 1968. He described how the plant operates. A company in Los Angeles, which does the cutting of the material, sends the individual parts of the garment to be manufactured to the Colton plant. Colton then sews together these component seg- ments which comprise the finished garment. When the unassembled pieces, which are packed in bundles, are received at the Respondent's plant, a count is made of the bundles. These bundles are then distributed to the various employees in the sewing department who sew together the parts that will comprise the finished product. When the unassembled parts are sewn together by the sewing department employees, the partially complet- ed garments are then sent to the finishing department where buttons are attached, buttonholes made, and loose threads removed. The garment is next pressed, folded, buttoned, steamed, pinned, inspected for defects and placed in plastic bags, according to style, size, and color. The finished garments are then placed in bags and shipped by truck to the consignees. Hourly counts are made of the number of garments bagged. From the time the unassembled garments arrive at the plant until their completion and shipment is approxi- mately four weeks. Counts are taken at various stages of the manufacturing sequence described above, to ascer- tain whether both the number of garments-in-process and those finally completed and shipped check with the number received originally from the cutting factory. Beginning in late March 1969, and extending to the middle of April, there was a changeover in the styles of Respondent's then current line of blouses to the new fall fashions.21 The consequence of this changeover was that new styles were introduced and new materials used in the fall line of blouses. When this occurred, Hand testified, there was a decrease in production for 4 to 7 weeks, because with the advent of the new styles and the use of different kinds of fabrics, the operators must be retrained and taught new rehandling techniques in the various production stages of the gar- ments. It appears the sewing department is slowed- down in adapting to new-fabrics which are sometimes difficult to sew. The new material which was introduced on April 17, 1969, was evidently such a fabric, because Hand, on cross-examination, testified that full production m Although the record is not clear, it appears Rosenberg spoke to the assembled employees the first time in April and the second occasion was sometime between May 12 and 15. 21 There are three "distinct" fashion seasons at the Colton plant each year. spring-summer, fall, and holiday. 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was not reached until the middle of September. He also explained that "the production cycle runs four weeks in a normal period. . . . The change of seasons could run anywhere from 6 to 8 [weeks]." As a result of this changeover, Hand stated, , "the beginning operation ends up-being quite slow, because there is learning experience to contend with." Hand's testimony continues: "The skill of the operator has to be retrained, and as a result work -starts flowing down the line much slower.22 In the meantime, the older styles which are going through are near the finishing end and will naturally proceed much faster than the beginning end of the new style. So, as a result, you usually have-sometimes they call it a dry-out period. Sometimes they call it a change-of-seasons period," which takes 4 to 7 weeks until full production is again attained. Hand, on his direct examination, stated that this slow period began about May 2 and lasted until May 30, 1969. On cross-examination he testified that production started to slow down in the latter part of March 1969 when the fall season garments started to come into the plant. Hand also testified on cross-exami- nation that after the new styles and new fabrics are received "our normal cycle is usually a four-week cycle." Then Hand inconsistently testified on cross- examination that full production at the plant was not attained until September. His testimony with respect to this critical aspect of the case is a mass of confusion, contradictions, and inconsistencies.' Hand testified that when he became plant manager, the owners of the plant disclosed to him that garments were being stolen from the plant. These thefts are also euphemistically referred to in the transcript as "short- ages" and "disappearances." Hand was instructed by the owners of the plant to discover who were the employ- ees stealing garments. To implement these instructions, Hand posted in March a notice in the plant forbidding employees to use the sewing machines for their own personal use. He also stated that he instituted a "bundle check-off system" which became operative about April 17.23 Hand testified that as 'a result of these measures he determined the thefts were occurring in the finishing department, somewhere between the trimming operation and when the garments left the plant. The following nine employees, all of whom are alleged discriminatees, worked in the finishing department: Marmolejo, Soto, Tortez, Gonzales, Parsons, Macias, Hernandez, Mills, and Resendez. - - In February or early March, testified Hand, he, spoke to Gonzales, an alleged discriminatee, who maintained the records showing the number of garments shipped and he pointed out to her "various items on her work- sheet and asked her how come the balances in each size don't match with the balance of the total. And she would just shrug her shoulders and say, I don't 22 See sec B, 4, supra 23 When Hand was cross-examined by counsel for the Union, he testified the bundle checkoff system was instituted in "late March or early April " know. . . . That indicated that I was short certain sizes and a certain color." - Hand testified that in the second week of "May, he sought the assistance of the Chief of Police of the Colton Police Department, with a view to learning- who was responsible for the thefts. The Chief suggested that a police officer be sent to the plant to interview the employees in the finishing department. Hand's testi- mony continues as follows: I told him that I didn't feel that I could point out any particular girl, and that his suggestion of an officer to interview might be able to pinpoint it, and I wasn't making any accusation. I would just like to eliminate the shortages. . He sent Lieutenant Hughes. I was never knowledgeable of the time when he would arrive. I was never notified which day or which hour. When Hughes arrived at the plant on the morning of May 22, he asked Hand for the names of the girls in the finishing department and proceeded to interview three of them.24 Hand stated on cross-examination that he did not tell nor did Hughes ask him which girls he thought were responsible for the thefts "because I felt that an officer of the law would be in a better position to tell me after interrogating the 'girls, not me guessing ." However, Hand continues that when Hughes asked him whom he believed were responsible for the thefts that "he refused to answer. I told him I didn't want to accuse anybody." After the interviews with Gonzales, Parsons, and Tortez concluded, testified Hand, "I asked Lieutenant Hughes what his findings were, and he told me nobody would -admit anything, but he felt that they all had knowledge of where the disappearance occurred and who was responsible." Hand "laid off" Tortez, Parsons, and Gonzales within a few hours after speaking to Hughes. He took over Gonzales' checking duties immediately which consisted of "count- ing and sorting by style and color, making entries on the worksheets, transferring it to the invoices and making out the invoices." - Hand testified that Resendez (an alleged discrimina- tee), who was laid off on May 21, returned to the plant for an unemployment compensation card and asked him if she could come back to work and "as production had increased," he told her to return to work the next day, June 2, which she did. When Tortez returned to the plant to request that she be returned to her job, Hand testified as'to what transpired and what the conditions were in' the plant during the "second week" in May. The record reads as follows: I said until this intolerable situation had been creat- ed, of slowdowns and damages of garments, I had never had any complaint with her [Tortez] work and that she was a good worker. . . . [Tortez] made the statement that she didn't want to have anything to do with any organizations or,•people, or didn't want to be connected. The only other 24 Gonzales, Parsons, and Tortez COLTON SPORTSWEAR MFG 835 statements that were made when Mrs Hand came into the office was to the effect that we were very surprised that she [Tortez] had engaged in a slowdown, it was partially contributory to damag- ing of garments Work was piling up on the racks and all of a sudden we had an excessive amount of dirty garments, an excessive amount of clipped garments The time that I had been there, we never had, as a rule, more than 50 gar- ments at a time for repair, for spot washing, but all of a sudden we had racks of them We also came across garments that were clipped scissor cuts, things like that, which we very seldom had before Some of the dirt marks that I looked at looked as though they had been stepped on The inspection standard had slipped greatly, either they were completely prone to exaggerate damage or repair, or they shipped shoddily, put through finished garments that should have been repaired When Hand was asked by his attorney who was responsible for this "situation," he answered "My feel- ing was that it was Inez [Gonzales] and Nancy [Tortez] " His basis for this conclusion, he testified, was that "They were the last ones to handle them If a garment fell down, how would a footprint get on it, unless they stepped on it We never had a back-up and a log jam like that before " He stated that he also came to these conclusions based on conversations with Mrs Hand Hand testified that he could not determine where or what was causing the unusual number of grease spots on the garments, but he did conclude that it was occurring in the finishing department Based on this belief, he decided some time in July that he would not "recall" Marmolejo, Soto, Gonzales, and Parsons Hand stated that he decided "some time in July," not to recall Gonzales because I had satisfied myself in my own mind through my own counting and invoicing that the girl [Gon- zales] that was doing that was improper for the job, and I didn't want her back I felt that she was not trustworthy because of the disappearance [of garments] Because from the time I took over the counting and invoicing , our missing gar- ments were almost nonexistent It was difficult to tell how she would come in in the morning, where she would come in all bubbly and cheerful and she would break her neck to work, and another morning she would come in with a very moody and pensive mood, and she would often have to be asked two or three times to do the same thing Her attitude wasn't for her job, and I felt rather than take a chance on more disappearances and have to worry about how she felt when she woke up in the morning that I would discontinue her employment I didn't feel she was trustworthy Hand testified he decided about the same time not to recall Teresa Soto because "she was very argumentative, number one 25 She 25 On cross examination he testified whenever he told Soto what felt that she should be permitted to dictate how a factory should be run She made a statement that there would come a time when things changed and that she would see to it that the finishing department was run in a different way I called her into the office and I told her if she is going to do any talking at the union meetings , she should be very careful what she says, and this statement was made at a union meeting [This statement was] That when certain things occurred there would be a change taking place in the finishing department I said, number one, "You have no authority to make a change in anything " And, number two, "Evidently, you think you have a lot of friends, and these are the friends that supply information at no request of mine This is how it came back to me " Hand went on to testify that he had heard Soto had said these things in late April or early May at the union meetings His testimony continues "Another inci- dent was where , when I put Kazuko in because I needed more pressing, she turned around and tried to order this girl not to touch a certain style Teresa Soto has no authority to order any presser to do anything She is merely a presser and is to stand there and press " All these incidents involving Soto , he stated, happened in early May as did her complaining to him about the size of the bundles she was receiving Hand testified that he also decided not to "recall" Marmolejo His reason for deciding not to recall her reads as follows "Her work record was very bad as far as making her minimum , and I could see no reason for subsidizing her I felt three and a half months was ample time in which to come up " Hand admitted, however, he had never had any conversation with Mar- molejo with respect to her work performance On cross- examination , he repeated that Marmolejo could not make her minimum He explained that it is the policy of the Company to give a new operator a 3-month probation- ary period in which to attain minimum production and that since he has been plant manager , six employees have been discharged for inability to meet their minimum production quota Nita Parsons , testified Hand, was fired because of her work record He said she was employed 9 months and never made her minimum production and as it was company policy not to retain in its employ piecework girls who did not produce their minimum , he decided about 5 weeks after he laid her off not to "recall" her He states he asked Parsons "once or twice whether she was getting her minimum, whether she didn't come up and maintain it," but he was unable to recall if he confronted her with the Company's work records of her production 26 On cross-examination , Hand acknowledged that since he assumed Gonzales' duties of checking on shortages that there have been unaccounted missing garments she had done wrong she would argue about it and deny that she did it 22 See fn 16 supra 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He testified that when he took over the counting of the garments leaving the plant , the number missing was "very minimal." When Hand expressed the opinion that Gonzales was "not trustworthy," he was asked if by this he meant "theft," he equivocally answered: "not necessarily . . . There is many other things that enter into the definition of trustworthy." He continued that the theft involved was "partially" encompassed within the definition but he had no proof that Gonzales was guilty and consequently, "that is why I made no accusation." When Hand was asked on his cross-exami- nation whether Inez Gonzales was a good worker he answered, "at times, yes. Depend[ing] on how she woke up in the morning." He testified that a week before he laid off Gonzales, there were approximately 500 soiled garments to be cleaned and Gonzales had been assigned to spot wash and clean these blouses but she had only finished half of them when she was laid off. He assigned Gonzales and Tortez to spot washing these 500 soiled blouses, Hand testified, because Aceto, the floorlady, who usually did the bulk of this cleaning, could not handle it, where- upon he relieved Aceto of this job. He then explained that the reason Gonzales was not allowed to continue the spot washing job of these soiled garments after May 22, was because, "she is entirely too slow. My cost would be prohibitive." He admitted Tortez assisted Gonzales in the spot washing but he did not know why Tortez was not allowed to continue the spot washing job after May 22, when Gonzales was laid off. When Hand was cross-examined by counsel for the Union, he testified, that "every once in-a-while" he would verify the garment spot check count that was made by Aceto. However, with respect to Gonzales, he stated, that he "very seldom" verified her spot check counts. He went on to explain that "I never checked her entire shipment . I would only check on the hourly count." When he was asked if there was any inaccuracy at any time that he checked Gonzales' count, he answered, "No. Not to my knowledge. Several times she would be one or two short or she would be over one or two over, and I would call her attention to it." When he was asked if Gonzales' hourly count and his count coincided, Hand answered, "quite often they would coincide." When they did not coincide, Hand stated, either he miscounted or Gonzales miscount- ed, "so then we would both recheck it" and straighten out the error and find that either he or Gonzales had made an error in the count. And then either he or Gonzales would correct it. It appears from the testimony that some shortages of this type are not infrequent in many plants manufacturing garments of this type and are often innocent errors. When the General Counsel's representative asked Hand why he decided not to recall Gonzales, Parsons, and Marmolejo, he answered: the shortage was my greatest concern . . . and I needed time to evaluate the condition, and why, what my findings were, I felt would be conducive to the company, and when I found that Inez [Gon- zales] and Terry [Soto] were no longer in that department , as I said before , the shortages became very, very minimal. . . . Once I had reached the point where I had figured that this is the reason why, and I know I have eliminated this, then I decided I would no longer recall these two. Now that my main and previous problem is out of the way, then I started reviewing various worksheets, because I didn't want to be bothered with anything until I solved the shortage angle to my satisfaction, then I started reviewing to see where people might have been overlooked who hadn't been making their minimal , and in the course of that, these two I decided not to recall, especially someone that had not been there for almost nine months and hadn't made it. With respect to his statement as to two of them not having made their minimum , he, Hand , explained that he was referring to Parsons and Marmolejo . His testimo- ny continues that he started to review his records in order to ascertain who had not been attaining minimum production and when he had determined in early July it was Parsons and Marmolejo and when he had also concluded where the thefts were occurring, he decided not to recall Gonzales, Soto, Marmolejo, and Parsons. When Hand was asked if there was any reason why he did not recall Parsons and Marmolejo when he recalled other employees the day after the layoffs, he answered: "I didn't have that much work. "27 Hand was then asked if he had recalled Parsons, and not fired her, he could have trained her to do other work in the plant, particularly buttonhole work, he answered: "I imagine." When he was asked if the Respondent had need for buttonhole operators within a week after Parsons was "laid off," he replied, "I don't remember now." At this point in Hand's cross- examination, it was stipulated that on May 29 and 31, 1969, the Respondent inserted in the Sun Telegram Newspaper of San Bernardino, the following advertise- ment: Single-Needle overlock and button hole. Experi- enced Only! Apply 1400 Colton Avenue, Colton. Hand stated that he did not recall whether there was any other work in the plant available for Marmolejo between her layoff on May 21, and early July when he decided not to recall her. He testified that: "We were probably slow, because that is why I was advertis- ing [for buttonhole operators]. I probably couldn't get enough work through the buttonhole machines." This was due, he explained, to the new fabric causing the buttonholing machines "to skip." When Hand was asked when this problem began, he answered: Predicated on the first of April, which is when we started the work through, and with the new fabric and the problems I mentioned earlier, I would estimate that it was approximately eight weeks from there, so that would be April. Six to eight weeks, as I said , it would increase the cycle from 27 On his direct examination Hand testified: "I made my decision on all four of these girls about the same time , because I was concerned mostly with finding out the shortages . COLTON SPORTSWEAR MFG.* 837 four weeks. So it would be running just about the middle of May. When Hand was asked if what he is testifying to is that his production was reduced during the period from May 22 until the first week in July 1969, his answer was equivocal: "This was very possible that they might have been reduced." He then was shown Respondent's Exhibit 15, which indicates that for the week ending May 23, Respondent shipped 335 dozen garments and for the following week of May 30, 292 dozen blouses; 415 dozen garments for the week ending on June 6, and 417 dozen on June 13. He concluded that these figures were representative for the period down to and including the week ending August 1. In this regard, it is noteworthy that it was stipulated that the new fabric from which the fall fashion blouses were made, was first used on April 17, 1969, which would indicate the alleged discriminatees were laid off during their retraining period. A reasonable inference is that decreased production may have been the result of new production techniques and retraining the employ- ees, a normal situation, and not necessarily "due to a lack of work occasioned by a seasonal decline which had occurred annually in the past," as contended by Respondent.28 9. Glenda Jolliff The witness, who testified on behalf of the Respond- ent, is presently employed by Respondent as a floorlady in the single needle section. She began working for the Company in October 1967 and worked until March of 1968, when she voluntarily left, and then returned in September of 1968. In April of 1969, she left to take a job with another company but returned a week later. She is paid on an hourly basis. Her duties consist of distributing and picking up work, checking the gar- ments for defects, and carrying out the orders of Mr. and Mrs. Hand.29 Jolliff stated that ever since she has been employed at Respondent's plant, there have been shortages. In discussing, with Mrs. Hand where the shortages might be occurring, she testified, that they both agreed it was occurring in the pressing department. Mrs. Hand then asked her if she suspected anyone in the plant of stealing garments and Jolliff told her she did, but no names were mentioned. Jolliff's testimony reads as follows: She asked me if I had ever seen anybody [take garments] and I told her yes. She asked me if I had heard anything, you know and I said yes. .. . Last year, when I was working there, Inez Gonzales told me that when she made the count, she put extra blouses in, and that she was going with a truck driver and he brought them back to her later.31 I asked her [Gonzales] if it was true, and she said yeah." When Jolliff was asked by Counsel, "what was true," she answered "that she put extra blouses in the count." When she was asked on her direct examination what she understood Gonzales was referring to, Jolliff stated: "she said she [Gonzales] did all the final counting and everything and she just didn't count the blouses correctly, you know. Like if there was 50, she put two extra and put down 50." When Jolliff was asked if Gonzales explained what she did with these blouses that she "set aside," Jolliff's answer was "her boy friend brought them back to her later. He was driving the truck."31 Jolliff testified also, that one day while she was leaving the plant, she saw Terry Soto's open purse and in it was a blouse. She states that "it looked like" a blouse of the type manufactured by Respondent. Jolliff testified that she told Mrs. Hand about this incident some time after the May 21 layoff. On cross-examination, she amplified this by explaining that she saw the blouse in Soto's purse in October or November 1968, but she did not mention it to the Hands until after the May 21 layoffs. On cross-examination, Jolliff testified that just before Christmas of 1968 she had a conversation with Terry Soto who asked her if she would sign a union card. "I asked her what she meant and she just explained that they were trying to get the Union in." Jolliff's testimony continued that beginning with "the first part of the year [1968]" Mrs. Hand and she talked about the Union and Mrs. Hand would sometimes ask her if she had heard anything about the Union. When she was asked on cross-examination if Mrs. Hand asked her if she knew what was going on in the union meetings and also asked her to keep her ears open, she stated that she did not remember. Then she was referred to her affidavit given to an investigator of the Regional Office32 in which she stated that: In November or December of 1968 Ann Hand started to ask me if I heard anything. I didn't know what she was talking about. I asked her what she meant and she said "I won't tell you that." She laughed. A few weeks later, but before Christmas of 1968, Terry Soto asked me if I saw or signed a paper for the Union. She said they only needed a few more names to get the Union or get a vote for the Union. And after Terry asked me that, I realized what Ann Hand might have meant when she asked me if I had heard anything. Somewhere in the early part of 1969 some women from the Union were passing out cards outside the plant. Mrs. Hand told me she saw them handing out cards and she asked me if I knew anything about the Union, and I told her that I heard rumors about the Union. Ann Hand would ask me if I had heard anything about the Union, but I was 4N See sec D, Infra. za On cross-examination, Jolliff stated she does the same work as Aceto and that she is a floorlady for one department and Aceto for or November or December." another department 31 This is an unmistakable reference to the driver who picked up 3" Jolliff , on cross-examination , stated this conversation with Gonzales the finished garments at the plant and delivered them to the customers occurred "the last months of 1967 -it could have been in October 11 G C Exh. 11 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tired about her questioning me about the Union, and I told her I didn't know anything. And she would ask me this at least once a week up to the time when some of the girls started to wear union aprons. Mrs. Hand' told • me that she knew what was going on at the union meetings, but she -would not say who told her. . . . Starting about the time when Mrs. Hand asked if I heard anything, she also asked me to keep my ears open. Usually. when she asked if I heard anything, she would tell me to keep my ears open. Jolliff on her cross-examination, stated that Mrs. Hand "always told me to keep my eyes and ears open- to look around the shop." Jolliff placed her conversations with Mrs. Hand regard- ing Soto having a blouse in her purse and Gonzales intentionally miscounting the blouses as occurring after the May 21 layoffs but before her trip in June 1969 to Las Vegas with the Hands. On cross-examination, it was elicited that in June 1969, about 3 weeks after the May 21 layoffs, Jolliff was taken by Mr. and Mrs. Hand to Las Vegas and that they paid all her expenses. 10. Edith Duillo Duillo, who 'v'as called as a'witness by Respondent, was first employed by the Respondent in April 1967 and has been working' for them about 21 years. She is a collar setter and has held that job for over 2 years.' It is brought out that Respondent posted notices about April 14 or 15, 1969, stating that employees could do no more personal sewing in the plant. Duillo testified that shortly after these notices were posted she had a conversation with Mrs. Hand about the missing blous- es. "I told [Mrs. Hand] that it was a shame that all the girls had to suffer for a few girls-that, you know, the shortages. And I was a little annoyed because I did all my personal sewing there and I had no machine at home. And then I went to tell her that I had heard Inez [Gonzales] was, putting the blouses in bags in the refrigerator, and I thought it was all done in the pressing department." By "bags" she explained she meant that it was a lunch bag. "I told Mrs. Hand that Inez [Gon- zales] and Terry [Soto] . . . had taken them-Flo [Aceto] knew all about it, but didn't say anything." On her cross-examination, Duillo testified that she never saw Gonzales or Soto take blouses. "However," she continued, "I believe it to be true." Moreover, she stated, not -being able to use the plant's sewing machines was unfair to her because she had done all her personal sewing in the plant and now she was unable to do so because of some employee's thefts of garments. Her testimony continues that she knew this about Gonzales and Soto for over a year when she learned of it from Georgia Hernandez who no longer works for Respondent. Duillo testified that she told Mrs. Hand what she had learned from Hernandez about the latter part of April. She also testified she spoke to Flo Aceto, the floorlady, about what was going on with regard to missing blouses and that Aceto said, "nothing. . . . She just shrugged her shoulders." She concluded her testimony by stating, "Well, to my knowl- edge, I think there have always been shortages." 11. Ann Hand Ann Hand stated that beginning in early March 1969 some efforts were made to locate the source of the shortages. She testified that she spoke with Jolliff about the 'missing garments but she is unable to remember whether it was before or after the May layoffs. Her testimony reads as follows: "[Jolliff] was telling me that . . . it was no secret that Inez [Gonzales] used to put blouses in the invoice count and the truck driver would take it away . . . She also told me to keep my eyes out, you know, in the pressing department and Terry [Soto] was involved." Mrs. Hand testified Jolliff told her that the truck driver was Gonzales' boy- friend. Hand also testified that she told Jolliff "to keep her eyes and ears open. To give me an indication if somebody was taking blouses-if she saw or heard anything." Reference is then made to conversations that Mrs. Hand had with Edith Duillo about missing garments beginning 2 weeks before the layoffs in May. Duillo told her that Gonzales was putting blouses in her lunch bag and placing the bag in the refrigerator. Hand stated she made an' attempt, to determine whether blouses were actually being hidden in employees' lunch bags in the refrigerator by feeling the bags to see if they were soft or hard, but "we couldn't find anything." Hand also ' testified about a conversation she had about the time of the May layoff with Kay Roth, an employee, who told her that "she saw Inez Gonzales with two blouses around her waist, going into one of the cubicles in the ladies' room." On cross-examination, Hand stated Roth told her this after the alleged discrimi- natees commenced wearing their union aprons. About three weeks before the layoff, Hand testified, there was a slowdown in the work of some of the girls in the finishing department. Her husband, she con- tinued, "called the pressers together and told them that if they don't get back to normal, he would add a presser or two." About the time of the May layoff, she testified, Gonzales and Soto "caused'quite a confu- sion in our factory. They would pick on any blouse as soiled, and it was up to them to inspect the blouses after pinning and after bagging and after shouldering and that's what we are talking about-about the slow- down. They would put blouses aside, they would drop the blouses, step on them and they would put pin marks on the blouses, and they had backed up quite a bit of merchandise there." Mrs. Hand testified that she had two conversations with Marmolejo in April and May about her low produc- tion and "I' told her she should keep her production up or else I would have to do something about her." Then, her testimony continues, she had a second conver- sation with Marmolejo about the beginning of May and "I told her that she wasn't doing well, that I would have to do something about her production." Hand stated Marmolejo did not-say anything in response to COLTON SPORTSWEAR MFG. this warning . She also testified that during "the slowdown period33 . . . I picked up a couple of [Marmolejo's] bundles and I examined them , and returned the work that had to be redone." Mrs. Hand , on cross-examination , testified that both Marmolejo and Parsons participated in the slowdown and, in the first part of May, she began to inspect the quality of Marmolejo ' s work . She testified on cross- examination that she "didn 't make any conclusions" whether all the employees in the finishing department engaged in a slowdown stating she "couldn 't pinpoint where . . . I pinpoint the pressers and the trimmers. . . . and the bagger ." She admitted she never talked to either Marmolejo or Parsons about the slowdown and that none of the girls were ever warned by her that if they did not speed up their work they would be fired. Ann Hand also testified that she spoke to Nita Parsons twice in either March , April, or May to tell her to raise her production . "I came up to her once and told her that if I lit a fire between her legs, would she move . I had to make a statement , you know , to shock her production . ,. . . She laughed . [On the second occa- sion] she was very, very low and I asked her to' raise her production and she just said all right ." At that time , testified Mrs. Hand , she showed Parsons' work record to her. Mrs. Hand states she never used the words "discharged or fired " in warning Parsons and Marmolejo but , used the word "layoff." To her, she explained a "layoff" is not a permanent thing. Reference is made to the hanger incident with Gon- zales which will be found in section B,l, suprq. The purport of Mrs. Hand ' s testimony is not only confined to the hanger incident , but also to a few other unspecified occasions , when she claims Gonzales disregarded her orders. On cross-examination she stated she never believed that Gonzales was responsible for any garment thefts nor did her husband express the opinion to her that Gonzales was guilty . However , she later testified, based on what Jolliff told' her , which she characterized as "reliable ," that Gonzales, and Soto were responsible for the thefts . Mrs. Hand also denied that her attitude toward Parsons changed , after she began to wear a union apron at work. Mrs. Hand then testified , with respect to Tortez return- ingto the plant on June 9 to request that she be allowed ,to return to work, "I told her that it was perfectly all right with me, as long as she doesn 't try to slowdown the work again-to interfere-with the slowing-down process.. , . . Well, she started to say something about the union activities and I told her , I'm not interested in the union activities. I'm interested in production. I told her that I was quite surprised that she would engage in a slowdown ." On her cross -examination Mrs. Hand testified she never observed Tortez throwing blouses on the floor and intentionally stepping, on them or defacing the garments with pen marks or soiling them in any way.. However, she answered a question 'a Mrs. Hand testified the slowdown period commenced in the begin- ning of May and continued until "close toward the end of May 839 rhetorically by exclaiming: "who else could have done it?" Mrs. Hand denied Jarrard's testimony that she over- heard her threaten to fire any employee who signed a union card. She also denied she ever told Jarrard that she needed someone she could trust who would tell her everything about what was going on in the plant, particularly union activities. She testified on cross-examination that the May layoff was due to the introduction of the "new materials. It reacts different on the machines. It's a different type of material." She also testified that her husband told her he was going to use the May layoff as a means of trying to find out who was stealing blouses and he was going to do this by gradually recalling the girls. C. Rebuttal On rebuttal it was stipulated that if Gonzales were called as a witness she would testify that she did not tell Glenda Jolliff, either personally or in the presence of other employees, that she took any blouses or gave them to any truckdriver and had him return them to her later on. It was also stipulated that if Tortez were called as a witness she would corroborate Gonzales' denial that this conversation ever took place. It was also stipulated that if Tortez were recalled on rebuttal she would deny she ever damaged garments or contribut- ed to a slowdown or that she ever admitted to Mr. Hand that she did these things. It was stipulated that if Teresa Soto were to testify on rebuttal she would state that ever since she began working for Respondent she often has purchased blouses at the plant, as many as three in a week, and that she carried them out of the plant on a hanger or over her arm. Since the Hands took over the plant, the stipulation continues, they gave the girls remnants, recut materials, damaged fabrics, and soiled materials and when Soto received ,any such materials she usually carried them in her handbag and, occasionally, in her hand. The stated purpose of this stipulation was to refute Jolliff's testimo- ny that she saw Soto leaving the plant with a "blouse" in her handbag and to prove Soto only had remnants and damaged fabrics in her handbag but never finished blouses. With respect to the advertisement of Respondent in the San Bernardino newspaper on May 29 and 31 for buttonhole operators, Marmolejo testified on rebuttal that she worked "every day" as a buttonhole operator for the Respondent, Colton Sportswear, from "some- time" in December 1968 until March 1969. D. Contentions The General Counsel claims that the employees who were "laid off" were terminated because of their union activities in violation of Section 8(a)(3) of the Act. The Respondent denies this charge, contending some of the layoffs resulted from a reduction in force, a .normal business decision, economically motivated because of a lack of work, due to,a seasonal decline 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in business which had occurred annually in the past, and the remaining employees were discharged for good cause , namely , failure to meet required production stand- ards There are also alleged violations of Section 8(a)(1), which consist of Respondent using a written application form requesting all job seekers to state their union affiliation , if any , an allegation that Respondent engaged in surveillance and threatened to discharge employees if they joined the Union The relevant provisions of the National Labor Rela- tions Act, as amended (61 Stat 136 , 73 Stat 519, 29 U S C 151, et seq ), are as follows Sec 7 Employees shall have the right to self- organization , to form , join , or assist labor organiza- tions , to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities Sec 8 (a) It shall be an unfair labor practice for an employer- (1) to interfere with, restrain , or coerce employees in the exercise of the rights guaran- teed by section 7, (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization E Resolutions of Credibility This is a case where the General Counsel's witnesses are contradicted on all the salient issues by the witnesses for the Respondent Nevertheless, after observing the witnesses, analyzing the record and inferences to be drawn therefrom, and reconciling, where possible, the conflicting evidence, the Trial Examiner concludes that the testimony of the General Counsel's witnesses is reliable because it is consistent with certain undisputed and demonstrable facts in this case This conclusion is based also on observation of the witnesses with respect to the accuracy of their memories, their comprehension, and their general manner on the stand in answering the questions put to them The General Counsel's wit- nesses appeared to be sincere and truthful witnesses who told straightforward stories The impression that they were testifying truthfully became a conviction when their stories were found, in the main, to be consistent with the attendant circumstances in this case and not substantially shaken by able counsel for the Respondent who vigorously, searchingly, and thoroughly cross-exam- ined them However , it is not meant to imply that the trier of these facts accepts as credible everything that was said by all the General Counsel's witnesses It suffices to say, in the words of Judge Learned Hand, that "It is no reason for refusing to accept everything that a witness says, because you do not believe all of it , nothing is more common in all kinds of judicial decisions than to believe some and not all "34 Another practical consideration which cannot be over- looked in resolving the credibility issues in this case is the fact that two of the General Counsel's witnesses were still in the employ of the Respondent Company at the time they testified, namely, Tortez and Resendez As such, they depended on their jobs for their livelihood and they understood that after testifying they must continue in the employ of the Respondent Moreover, the trier of these facts is not unmindful of the predica- ment of an employee who testifies adversely to his employer's interests, being apprehensive and fearful, with some measure of justification as to the future possibility of retaliatory action These practical consider- ations, coupled with the normal workings of human nature, have led the Trial Examiner to place considerable credence on the testimony of Resendez and Torten as it is believed they were impelled to tell the truth regardless of what consequences might eventuate In this regard is Resendez' testimony that she had never heard anyone accuse either Gonzales or Soto of theft In crediting some witnesses and discrediting others, giving weight to certain evidence as against other evi- dence, drawing inferences from circumstantial and con- flicting evidence , and coming to certain conclusions, the Trial Examiner has necessarily had to detect and appraise various "potent imponderables" permeating the record 35 One of these "potent imponderables" is the demeanor of witnesses The Board has recognized that the "demeanor of witnesses is a factor of consequence in resolving issues of credibility "3" Credibility findings rest to varying degrees on the evaluation placed by the trier of facts on the demeanor of witnesses The type of evidence which does not appear in the record and is comprised of elusive intangibles and "potent imponderables" which are difficult to capture and to describe by written words, often make it difficult for the trier of the facts to convey or describe the impression which a particular witness makes on him 31 Judge Learned Hand describes it as "[findings] based on that part of the evidence which the printed words do not preserve Often that is the most telling part, for on the issue of veracity, the bearing and delivery of a witness will usually be the dominating factors, when the words alone leave any rational choice nothing is more difficult than to disentangle the motives of another's conduct-motives frequently unknown even to the actor himself But for that very reason those parts of the evidence which are lost in print become especially pregnant "38 As the Board stated in Roadway Express, Inc , 108 NLRB 874, 875 "Credibility 3' N L R B v Universal Camera Corp 179 F 2d 749 754 (C A 2) reversed on other grounds 340 U S 474 35 International Association of Machinists (SERRICK CORP) V NLRB 311US 72 79 31 Hadley Manufacturing Corporation 108 NLRB 1641 1643 Roxboro Cotton Mills 97 NLRB 1359 1368 37 N L R B v James Thompson & Co Inc 208 F 2d 743 (C A 2) 3" N L R B v Universal Camera Corp 190 F 2d 429 430 431 (C A 2) COLTON SPORTSWEAR MFG findings may rest entirely upon evidence through observa- tion which words do not , and could not , either preserve or describe " [Emphasis supplied ] By this discussion of the evaluation placed on the witnesses in testifying , it is not intended to convey the impression that consideration was given exclusively to this type of evidence in determining credibility This was only one factor Concomitant consideration was given equally to the surrounding circumstances, and the consistency or inconsistency of individual witnesses' testimony with uncontroverted evidence and demonstra- ble facts in determining which version should be credited Moreover , in crediting one version as against another, the trier of the facts often derives considerable aid in comparing the witnesses ' testimony on direct examina- tion As has been succinctly stated "A would-be deceiv- er weaves a tangled web and cross-examination is usually an effective device to enmesh the perpetrator of the embellished lie "3" The testimony of Gonzales , Tortez , Parsons, Soto, and Marmolejo has been quoted in haec verba copiously because the General Counsel bases almost his entire case on the testimony of these five employees The same applies to Respondent counsel ' s almost exclusive reliance for his defense on the testimony of Mr and Mrs Hand In the interests of accuracy, all those wit- nesses ' testimony has been quoted in extenso, along with Jarrard ' s and Jolliff ' s, to avoid the ambiguities sometimes created by paraphrasing In fact, the flavor and nuances of some of these witnesses ' colorful and unique manner of testifying are incapable frequently of literal trlinsla;ton or interlineal rewording so that even a metaphrase might be considered too loose The testimony of Harold Hand , plant manager, is q maze of contradictions , discrepancies , equivocations, generalities , and in some instances outright probabilities Then, too, the vague and indefinite complaints testified to by Hand with respect to the quality of the five employees ' work which , in the main , are too intangible to refute , leaves their "layoffs " unsatisfactorily explained His testimony was uncertain and not specific as to the reasons , identity , and details of some of his complaints regarding these five employees For exam- ple, he speaks of garments having grease marks on them , being slashed by scissors, dirt marks which he believed were caused by Gonzales intentionally throwing blouses on the floor and proceeding to step on them Then he shifts to another reason for deciding in early July not to recall Gonzales , namely , because she would come to work "bubbly and cheerful " and then, on other days , she would arrive to work "very pensive and moody and she would often have to be asked two or three times to do the same thing " He admitted, however, that Gonzales was a good worker "at times Then he testified her spot -washing was "too slow Finally , he acknowledged on cross-examination that when he checked her count of garments , he found no inaccuracies 1' Santa Clara Lemon Association 112 NLRB 93 104 enfd 240 F 2d 554 (C A 9) 841 His reason for not recalling Marmolejo and Parsons was due to their production being "very bad," but he admitted he had never shown them their production records Furthermore , he "imagine [d]" that Parsons could have been trained to do other available work in the plant , if he had not laid her off but assigned her to another job His answer , on cross-examination as to whether the plant within a week after Parsons' "layoff" had need for buttonhole operators, was "I don't remember " at which point he was confronted with Respondent's newspaper advertisement of May 29 and 31 seeking buttonhole operators As for Soto , she was fired , he testified , for the follow- ing reasons "she was very argumentative ", stated at a union meeting that "there would come a time when things changed and that she would see to it that the finishing department was run in a different way", giving orders to another employee which she was not authorized to do , and complaining about the size of the bundles distributed to her It should be noted that Hand ' s reasons for firing these four girls were not related to any specific incidents Rather , they are broad subjective characterizations and were , therefore , quite impossible to refute and difficult to impugn through cross-examination The unspecific, inconsistent, contradictory , and unconvincing reasons given for their discharges create a suspicion that they were offered to conceal an unlawful motive , which in this situation , it is found , was an attempt to forestall union activity and to abort the union ' s organizational activities by discharging the most active union adherents whose union activities , it is uncontradicted , Respondent was aware of before the dates of their discharges Mrs Hand , who corroborated her husband ' s testimo- ny, did not leave a favorable impression because of her inability to recall details and her general unreliability as a witness Her testimony was disjointed and incoher- ent in many critical aspects and lacked continuity She was less than candid in her testimony which bears directly on the issues in this case and in some instances so improbable as to demonstrate her lack of candor for the most part Moreover , her testimony on direct examination was given , in considerable measure , in reply to leading and suggestive questions which also militates against the weight to be given her testimony Little probative value has been given to her testimony thus elicited as the vice in counsel asking witnesses leading questions is that they suggest the desired answers which the witnesses will often merely adopt so that it may seem futile to object once such a question has been asked and the desired answer suggested 91 Moreover, on cross -examination, when the questions asked Mrs Hand were not to her liking , she took refuge in obscure replies The testimony concerning the timing and chronology of some of the incidents involved in this proceeding are contradictory , ambiguous , incomplete , and lacking in specific details as to what occurred and when they occurred so that findings of fact and resolutions of 41 Liberty Coach Co Inc 128 NLRB 160 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD credibility made herein result from an attempt to recon- cile the evidence in order to determine not only when particular events occurred but what occurred In attempt- ing to supply coherence to those statements and acts which are ambiguous, necessary recourse has been made to the context of other facts and circumstances in an effort to determine what was meant or occurred F Issues The complaint appears to be imprecise but a distillation of the evidence with respect to how many employees are alleged to be discriminatees reveals that of approxi- mately 22 employees who were laid off on May 21 and 22, 1969, 9 are alleged to be discriminatees, and that of these 9, 4 of them, namely, Soto, Gonzales, Parsons, and Marmolejo, were never recalled and of the 2 remaining Resendez was recalled on June 2 and Tortez on June 9 The remaining three alleged discrimina- tees, Macias, Hernandez, and Mills were laid off on May 21 and recalled the following day The issue here, then, is whether the alleged discrimina- tees were terminated on May 21 and 22, 1969, by Respondent, as contended by the General Counsel, in violation of Section 8(a)(3) of the Act, because of their union sympathies and activities, or for valid cause, as claimed by the Respondent G Discussions and Conclusions Discharges In determining whether a layoff, discharge, firing, or termination, which terms are used interchangeably in this decision, is discriminatory, the problem is to ascertain the employer's true underlying motive The fact that a lawful cause for discharge is available is no defense where the employee is actually discharged because of her union activities 41 "It is well settled that an employer violates Section 8(a)(3) by discharging an inefficient employee if the employer's reason for so doing is not the employee's inefficiency but [her] union affiliation or activity "42 Moreover, a justifiable cause for discharge cannot shield discrimination in employment shown to have been unlawfully motivated 43 For the reasons hereinafter explained, it is found that the record in this case, which is set out in considera- ble detail above, speaks for itself in that the evidence adduced by Respondent in support of its defense is not of sufficient probative force to overcome the strong prima facie case made out by the General Counsel The testimony makes plain that with respect to the five employees found to have been discriminatorily laid off or terminated, there is more than a coincidental connection between their union activities and their termi- nations 44 Indeed, it is found that "the principal events [are] really no coincidence at all, but rather part of a deliberate effort by the [Respondent] to scotch the lawful measures of the employees before they had prog- ressed too far toward fruition ""s On the other hand, economic reasons, which Respondent alleges as the cause for the layoffs, may not be asserted to shield an employer against the consequences of his discrimination against an employee who would not have been laid off but for her union activities or membership The circum- stances of each case must be weighed to determine what motivations truly dominated the employer in laying off or discharging the employees 41 In this proceeding, it is found that Respondent was motivated, at least partly, by its antagonism toward the five employees in laying them off on May 22 and thereafter rejecting their requests to return to work, thereby discharging them "' The unconvincing character of proffered and multiple reasons for a termination is also a significant factor in determining whether or not the discharge was improp- erly motivated To adopt a recent statement of this principle in Shattuck Denn Mining Corporation v NLRB , 362 F 2d 466, 470, enfg 151 NLRB 1328, where the Court of Appeals for the Ninth Circuit held that an antiunion employer who discharges an employee who openly and ardently supports the union and gives a false reason for the discharge, the inference is the true reason must be union activity The court stated If [the Trial Examiner] finds that the stated motive for a discharge is false, he certainly can infer that there is another motive More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least, where as in this case, the surrounding facts tend to reinforce that inference Although the discharge of a delinquent employee is lawful, it may become discriminatory if other circum- stances reasonably indicate that union activities weighed more heavily in the decision to discharge than did dissat- isfaction with her With respect to Gonzales, Tortez, Soto, Parsons, and Marmolejo, it is found, assuming arguendo that there existed justifiable grounds for their dismissals (which is contrary to the finding made herein), these were not the moving causes but pretexts and the real motivations for their discharges were their union activities 4" It should be borne in mind that these five employees were the spearhead of the Union 's organizational activity in the plant It was they who signed union cards, solicited other employees to do likewise, attended union meetings, and wore union aprons and buttons at work It was only after they engaged in all these protected activities that their work apparently became intolerable to Respondent It stretches credulity too far to believe that there was merely a temporal coincidental connection between their undisguised union activities and their 45 N L R B v Jamestown Sterling Corp 211 F 2d 725 726 (C A 2) 41 N L R B v Ace Comb Company 342 F 2d 841 (C A 8) N L R B v Jones Sausage Co 257 F 2d 878 881 -882 (C A 42 N L R B v Ronney & Sons Furniture Mfg Co 206 F 2d 730 4) 737 (C A 9) 44 Tortez was rehired on June 10 43 NLRB v C & J Camp Inc 216 F 2d 113 115 (C A 5) 4" NLRB v Electric City Dyeing Co 178 F 2d 980 983 (C A 4° N L R B v Condenser Corp 128 F 2d 67 75 (C A 3) 3) N L R B v Solo Cup Company 237 F 2d 521 525 (C A 8) COLTON SPORTSWEAR MFG. abrupt en masse layoffs at a time when there was plenty of work for Tortez and Gonzales and Soto, Parsons, and Marmolejo could have been transferred to another department in the plant , as was done with other employees who had less seniority than they. Although Respondent sought to justify these five employ- ees' layoffs on the basis of their derelictions and ineffici- ency, the evidence does not establish the factual validity of these charges . Running throughout these five "layoffs" is the dominant theme that at no time prior to Respondent ' s knowledge of their union activities was any serious or formal complaint made to them with respect to the quality of their work or any other dere- lictions. Against the feeble evidences of inefficiency and the admittedly unproven charges of thefts, which eventuated in their discharges '41 there has been weighed the summa- ry nature of the terminations, with no prior notice ever having been given that their jobs were in jeopardy and with no reason given for their dismissals at the time they were "laid off." Also of cogent significance is Respondent's uncontradicted knowledge of their union activities at the time the "layoffs" were effectuated. This combination of circumstances is scarcely explaina- ble except upon the hypothesis that Respondent was discriminatorily motivated in "laying off" these five employees and makes no other explanation reasonable."" The particular faults, derelictions , and economic defenses urged by the Respondent as occasioning all five layoffs, the record reveals, were equivocal, unspec- ific, vague , and general accusations which, in the main, are too intangible to refute. Moreover, these alleged faults were condoned for an unreasonable length of time without any finite action being taken and without Respondent reprimanding or disciplining the discrimina- tees until they manifested a lively, growing, and finally sustained interest in the Union . Under these circum-' stances, it is difficult to justify the layoffs on May 22 and Hand waiting until July to decide to discharge them. Such behavior is not normal. As the Court of Appeals for the District of Columbia stated:5t . . . some of these employees had been long time, responsible and faithful employees, and others had been commended for their work. All were discharged summarily , without preliminary warning, admonition or opportunity to change the act or practice complained of. Such action on the part of the employer is not natural. If the employer had really been disturbed by the circumstances it assigned as reasons for these discharges, and had no other circumstances in mind, some word' of admonition, some caution that offending lapse be not repeated , or some opportunity for correction of the objectionable practice, would be almost inevi- table. '" It is found Tortez was terminated on May 22 and that her reemploy- ment on June 10 was a new hire See Pacemaker Corporation , 120 NLRB 987, 991 E Anthony & Sons v N L R.B , 163 F 2d 22, 26-27, cert denied 332 U S 773 843 The more reasonable explanation would appear to be that it was not until the five employees .dramatized their intense interest in the Union by wearing union aprons at work, a few weeks before being laid off, that the Respondent became so disenchanted with them that various pretexts were concocted to rid the plant of this hard-core nucleus of fervent union adherents' These undisputed and demonstrable circumstances indi- cate that the various and varied, as well as inconsistent, reasons advanced for its discharging these employees were chosen ex post facto to screen its true motive, which was not economic or for cause but rather discrimi- natory. It will be recalled that Respondent's counsel, at the outset of the hearing, asserted that alleged thefts by Gonzales and Soto, a failure to meet production stand- ards by Marmolejo and Parsons, and a changeover in fashion styles in the spring which resulted in Tortez being laid off for lack of work, were the reasons for their terminations. However, with respect to the thefts, Harold Hand emphasized repeatedly that when he sought the help of the police, he told both the Chief and Lt. Hughes that he was not accusing any of his employ-' ees. In fact, when the police came to the plant, he refused to disclose to Lt. Hughes which employees he had under suspicion . The foregoing establishes Respondent had no basis for believing any of those girls questioned , by the police stole any garments.52 It is not too unreasonable an assumption that these shortages are the normal incidence and hazards of gar- ment plants and Respondent 's concern about this situa- tion arose' contemporaneously with the advent of, the Union. Corroborative of this inference is Gonzales' testi- mony that in the 2 years she worked for Respondent there was no investigation with respect to missing blous- es. When Lt. Hughes reported to Hand that his investiga- tion disclosed nothing of substance , Hand immediately notified Parsons she was laid off and shortly thereafter, about 2 hours before the close of the workday, he precipitately laid off the other four discriminatees with no reason being given them for his action . Moreover, the Board was held that a layoff in the middle of a pay period is relevant in determining whether the motivation was proscribed.53 His testimony at the hearing and the exhibits introduced by the Respondent fail to substantiate the factual validity of its defense that the layoffs were occasioned by valid economic reasons. At most, such evidence reveals that the decrease in production in the spring of 1969 was due to the introduc- tion of new styles and new kinds of fabrics which necessitated not only new rehandling techniques but, most important , retraining the employees in new operat- ing methods which resulted in the production line slowing down. It was during this retraining period that production decreased but' this was not due to a lack of orders ss See the rule of proof enunciated in Rubin Bros Footwear, Inc , 99 NLRB 610 , and approved by the Supreme Court in Burnup & Sims, 379 U S 21 sa Materials Transportation Company, 170 NLRB No. 102. 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but rather a reorientation and retraining of the employees in handling the new fabrics, as well as the different techniques required to operate the machines in manufac- turing the new fall style garments. As a matter of fact, Hand, on his direct examination, tacitly acknowl- edged this to be true. It would seem, therefore, that Parsons' and Marmolejo's decreased production can be ascribed to this situation as well as Marmolejo's discrimi- natory treatment in the assignment of work. Moreover, Parsons' testimony on cross-examination that she "gen- erally" made her production quota is credited. 54 Signi- ficant also is the absence-in the record of any indication that Parsons' and Marmolejo's continued employment would have or did have a deleterious effect on the plant's production schedules. In itemizing the various individual reasons for "laying off" each of the five discriminatees, Hand inconsistently testified Tortez was "a good worker" and then enigmati- cally said of her: "She didn't want to have anything to do with any organizations or people, or.didn't want to be connected." Then he complained that when Tortez was helping Gonzales, "work was piling up on the racks and all of a sudden we had an excessive amount of dirty garments and clipped garments." He continues: "My feeling was that it was [Gonzales and Tortez]" who were responsible for this sabotage. After labeling Gonzales "untrustworthy," Hand again shifted to anoth- er reason as to why he waited until July to discharge her; namely, her temperament was either "bubbly" or "very moody" and "her attitude wasn't for her job" although Gonzales had been employed by Respondent since July 1967. On cross-examination he explained that when he described Gonzales as "untrustworthy" he did not have reference to her stealing garments as he had no proof she was guilty. He then characterized her as a good worker "at times," but then complained she was slow in cleaning 500 soiled garments that he had assigned to her and Tortez shortly before they were laid off, of which 250 remained on the day they were laid off. Regarding "shortages," Hand admitted on cross-exami- nation, he "very seldom" checked Gonzales' count of garments leaving the plant but merely made occasional hourly spot checks on Gonzales' counts. When he was asked on cross-examination if he found any inaccuracies in her counts, he answered: "No. Not to my knowledge. Several times she would be one or two over, and I would call her attention to it." He acknowledged also that Gonzales' counts and his "quite often coincided" and when they did not, a recheck would indicate an innocent miscount on either his or her part. In explaining why he discharged Soto, Hand testified she was "very argumentative . . . she felt that she should be permitted to dictate how a factory should be run. . . . She made a statement [at a union meeting] there would come a time when things changed and that she would see to it that the finishing department was run in a different way." He also stated that Soto had attempted to give orders to another presser with " See sec G, infra whom she worked, although she had no authority to do do so. Moreover, he testified, he was annoyed by her complaining about the size of the bundles she was being assigned. Hand testified that 6 weeks after he "laid off" Marmo- lejo, he decided not to "recall" her because she consist- ently failed to make her production minimum. The same reason was ascribed by him for deciding to discharge Parsons, although he was not able to recall whether he had ever shown her the Company's records of her production during the 9 months she was employed by Respondent. On cross-examination Hand repeated the reasons listed above for his decision made in July not to recall Gon- zales, Soto, Parsons, and Marmolejo, and then reverted to his original justification; namely, thefts of garments and failure to make required minimum production stand- ards. Casting doubt on the validity and meritoriousness of these defenses is the cogent fact that when Respondent alleges it was compelled to lay off employees on May 21 for lack of work the uncontroverted evidence shows that the Company advertised a week later in the local newspaper on May 29 and 31, 1969, for buttonhole operators which belies the veracity of its principal defense that the layoffs were due to economic consider- ations."-' The many, varied, and, in some instances, inconsistent as well as shifting reasons, which were given by Hand for these five employees' terminations are indicative of a discriminatory intent."'! The failure to give a reason, or giving evasive or contradictory reasons, for a dis- charge may, of course, be considered in determining the real motive for the discharge,57 and the employer's inconsistent explanations of a discharge is a- circumstance indicating its motivation.-18 Where an employer is unable to settle on a reason' for a discharge but vacillates between several asserted reasons, an inference is war- ranted that the real reason for the discharge is not among those advanced.5" It is found, therefore, that the reasons alleged for discharging these five employees were spurious and a pretext to screen Respondent's discriminatory motivation. Moreover, Respondent's pre- cipitous action in severing these employees and then misleading them when he told them they would be recalled in a couple of weeks and his failure to offer them alternative employment, can only be explained as unlawful motivation. Motivation is a subjective matter, which, if found, must be found from objective circumstances established by the record after duly considering all countervailing testimony. One of the objective circumstances in this 45 See Steve Aloe Ford, Inc., 179 NLRB No 43, where the employer claimed the discnmmatees (mechanics ) were discharged due to his alleging he was discontinuing a department in the plant but immediately thereafter advertised for mechanics. "' Dant & Russell, Ltd , 92 NLRB 307, 320 N L R B. v. Condenser Corp., 128 F 2d 67, 75 (C A 3). See Mooresville Mills, 99 NLRB 572, 600, The Sandy Hill Iron & Brass Works, 69 NLRB 355, 377, enfd 165 F.2d 660 (C A 2); Lewis & Holmes Motor Freight Corporation, 63 NLRB 996, 1008 " Steve Aloi Ford, Inc , 179 NLRB No 43 COLTON SPORTSWEAR MFG. 845 case is the five dischargees' union activities, of which Respondent knew, as evidenced by their wearing union aprons and buttons. Another objective circumstance evi- dencing union animus is Mrs. Hand's asking Jarrard to notify her of any union activities in the plant and her threatening to fire any employee signing a union card. Another such cogent circumstance is the precipitate manner in which these employees were "laid off" with no reason given for the summary action at the time. This lack of explanation, in itself, is a circumstance sufficient to support an inference of discriminatory dis- charge.''" It is not believed that a nondiscriminatorily motivated employer would have acted so unreasonably. It is more reasonable to find that these five employees' union activities, toward which Respondent was hostile, were the real reasons for this attitude. Considering all these objective factors, it is concluded there is a causal chain linking their discharges to their union activities. Argumentatively assuming that Marmolejo's and Par- sons' production was cause for discharge, it is well settled, nevertheless, that when a clearly unlawful reason is one of the motivating causes of a discharge, which in this case is found to be Respondent's hostility toward the discriminatees' union sympathies and activities, the coexistence of a separate valid reason, namely, their deficient production records, does not eliminate the unlawful aspect of Respondent's action.''' Although layoff of an inefficient employee is lawful, it may become discriminatory if other circumstances reasonably indicate that protected activities weighed more heavily in the decision to lay off than did dissatisfaction with her work . 62 For all of the foregoing reasons, including the sugges- tive, circumstances inhering in the 5 employees' precipi- tate severances shortly after they, of all the 60 employ- ees, commenced wearing union aprons, the close positive corelation between the wearers of union aprons and those eliminated from jobs, the timing of the discrimina- tion, the concurrent surveillance and threats to fire union adherents, infra, the implausibility of the Company's attempted explanations that the terminations were moti- vated solely by economic considerations which is reject- ed-all support the finding of unlawful job discrimina- tion. It is found that these belated reasons were specious afterthoughts advanced by the Respondent for its action and used as a pretext. The real reason was to eliminate immediately from its work force these five dischargees, who were in the forefront of the Union's organizational drive, and thus cripple the organizational effort as well as discourage its employees from continuing the organi- zational campaign. It is not necessary to rationalize the spaced interval between the "layoffs" on May 22 and the subsequent discharges more than a month later, but it might be explained as a contrived plan or tactical maneuver designed to screen Respondent's true motive. With the collapse of Respondent's defenses, there is no other explanation for their terminations than to con- clude it was because of their union activities and that the reasons assigned were pretexts to mask what in reality was part and parcel of an aggressive well-planned campaign to dissipate the Union's strength and to create an atmosphere of fear among the remaining employees who were not terminated and Tortez who was rehired, that if they should give aid and comfort to the Union similar action awaited them. In short, it is found that union activity was the overriding factor in the Respond- ent's decision to discriminatorily rid itself of these employees. Moreover, the Company's layoff of these five union adherents was substantially motivated by its intention to eliminate from its employ these union activists and a substantial factor in its selection of these employees for layoff and ultimate discharge was their known union activity. That their severance be total and permanent was then accomplished by not con- sidering the complainants for jobs in other parts of the plant and favoring, instead, employees with less seniority and new hires. The net result of this selective manner of implementing their layoffs was the permanent exclusion of the discharged union adherents from any employment by Respondent. Such discriminatory treat- ment violated Section 8(a)(3) and (1),of the Act. With respect to Estela Resendez, the General Counsel has failed to establish by a preponderance of the evidence the allegations of the complaint that she was discrimina- torily laid off from May 21 to June 2, 1969.03 All that the record reveals is that Resendez, who has been employed as a hand presser since October 1968, never engaged in any union activities. When she was recalled on-June 2,, Mrs. Hand told her she was pleased with her work; asked her if she had a good rest during her layoff; and enigmatically remarked: "Sometimes we have to do these things." Resendez concluded her testi- mony by stating that she knew there were missing gar- ments in the plant but had never heard any accusations linking Gonzales or Soto with these thefts." It will be recommended, therefore, in the absence of any proba- tive evidence that Respondent discriminatorily laid off Resendez, that the allegation of the complaint with respect to her be dismissed. The allegations of the complaint that Alice Macias, Avelina Hernandez and Sudie Mills were discrimnatorily laid off for one day (May 22) have not been proved. These alleged discriminatees neither testified nor did the General Counsel's representative offer any evidence with regard to them. Accordingly, it will be recommended that these allegations of the complaint be dismissed. H. The Alleged Violations of Section 8(a)(1)35 "' N.L.R . B. v Plant City Steel Corp., 331 F 2d 511, 515 (C A 5) N.L.R.B. v Swinerton, 202 F 2d 511 (C A. 9) ' N.L.R.B v Whitin Machine Works, 204 F.2d 883, 885 (C.A. 1); Bon Hennings Logging Company v. N.L.R. B., 308 F .2d 548, 552-553 (C A 9); N.L.R.B v Local Union No. 38, United Associaton of Journeymen, Etc , 388 F 2d 679, 680 (C A 9) Jacqueline Jarrard, who was employed by Respondent from December 30, 1968, until April 25, 1969, when See sec. F, supra ' See sec B,6, supra See sec. B,7; B,9; and D 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she voluntarily left, testified that in April 1969, Mrs Hand offered her Glenda Jolliff's job and told her she is taking into consideration that they have to have someone on the floor she could trust because you know Mexicans was trying to-like the Mexicans were trying to get in the Union, and she had to have someone she could trust and that would tell her things On cross-examination, Jarrard testified that Mrs Hand told her that she needed someone who would tell her everything "like Glenda [Jolliff], she tells me things, about things " Jarrard's testimony continues "In other words, she wanted me to be like Glenda She said where she could depend on me to tell her things everything tell her everything I heard " This incident obviously was an attempt to interfere with the employees' right to self-organization by attempt- ing to offer Jarrard a promotion if she would keep her informed of the employees' union activities, a viola- tion of Section 8(a)(1) In H N Thayer Company66, where a plant superintendent asked two employees "to keep [their] ears open" and to let him know who was prounion, the Board found this to be a violation of Section 8(a)(1) of the Act So too, in this case, the incident detailed, is found to be unlawful surveil- lance, a violation of Section 8(a)(1) It is also alleged that Respondent violated Section 8(a)(1) by its use from May 27 to July 7, 1969, of an employment form requiring job applicants to disclose their untion affiliation "' During this period of time, 18 applications were received 11 answered that they were not affiliated with a union, 2 answered they were affiliated and 5 did not answer the question, leaving it blank All 18 applicants were hired Respondent con- tends this is no violation in view of the fact that the "objectionable" question was used only a short time and no evidence was produced to show the application was used in a discriminatory manner Clark Printing Company, Inc ,611 is dispositive of the issue herein In that case, the Board held that while use of an employment form requiring disclosure of an individual's union affilia- tion is not per se a violation of Section 8(a)(1), no justification for its use was offered by the Respondent So it is in the case at bar Moreover, held the Board, discontinuing the use of such form does not render such conduct moot, as findings of violations and remedies therefor serve a preventive as well as a remedial purpose Accordingly, in view of the violations of Section 8(a)(3) found above, and the attempts to survey the union activities of its employees, it is concluded that the use by Respondent of the above-described employment form was also a violation of Section 8(a)(1) '" Jacqueline Jarrard's testimony that she overheard Mrs Hand in April 1969, threaten to fire some employees if they should join the Union is credited, contrary to "" 99 NLRB 1122 1125 Accord Wallace Press Inc 146 NLRB 1236 1238 " Resp Exh 23 146 NLRB 121 122-123 Wayside Press Incorporated 103 NLRB 1 i Mrs Hand's denial that this ever occurred Accordingly, it is found that this incident was a violation of Section 8(a)(1) of the Act " The Trial Examiner has carefully read and studied counsel for the Respondent's excellent brief which makes a thorough analysis of the testimony in support of his contention that the General Counsel has failed to prove the unfair labor practices alleged in the complaint and cites various cases in support However, the trier of these facts finds no occasion for lengthening this Decision by citing, distinguishing, or discussing the cases cited by Respondent's counsel because it is believed that the controlling reasons for this Decision have been sufficiently discussed Moreover, counsel' s arguments are premised on an interpretation of the facts which the Trial Examiner does not share CONCLUSIONS OF LAW 1 By interfering with, restraining, and coercing employees in the exercise of rights guaranteed them in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act 2 By discharging, laying off, and/or terminating the employment of Inez Gonzales, Teresa Soto, Nita Par- sons, Estela Marmolejo, and Nancy Tortez, as set forth above, Respondent discriminated against them in regard to their tenure of employment, and the terms and condi- tions thereof, to discourage membership in the Union and thereby engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act 3 The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act 4 The General Counsel has failed to establish by a preponderance of the evidence that Alice Macias, Avelina Hernandez, Sudie Mills, and Estela Resendez were discriminatorily terminated It will be recommended therefore, that said complaint be, to that extent, dis- missed THE REMEDY Having found that Respondent was at least partially motivated in its discrimnatory treatment of the above- named individuals by their activities on behalf of the Union" and thereby engaged in unfair labor practices as above set forth, it will be recommended that it cease and desist therefrom and take affirmative action, set forth below, found necessary and designed to effectu- ate the policies of the Act Having found that Respondent interfered with, coerced, and restrained its employees in the exercise of rights guaranteed by Section 7 of the Act which the basic purpose of the Act was designed to achieve, " See sec B 7 and E supra " N L R B v Symons Manufacturing Co 328 F 2d 835 837 (C A 7) COLTON SPORTSWEAR MFG. it shall be recommended that Respondent be required to cease and desist from in any manner interfering with , restraining , or coercing its employees in the exer- cise of rights guaranteed them by Section 7 of the Act.72 1 - Having found that Respondent discriminatorily termi- nated, laid off, and discharged Inez Gonzales, Teresa Soto, Nancy Tortez, Nita Parsons, and Estela Marmole- jo, it will be recommended that it offer to each of them immediate, full, and unconditional reinstatement to her former or substantially equivalent position'73 with- out prejudice to her seniority or other rights, privileges, or working conditions, dismissing, if necessary, those hired in such jobs on and after May 22, 1969, and make each of them whole for any loss of earnings suffered by reason of the discrimination against her, by paying to each a sum of money equal to the amount she would have earned from the date of the discrimina- tion against her until such discrimination has been fully eradicated, less her net earnings during the period of such discrimination. Backpay with interest at the rate of 6 percent per annum shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. The remedial purposes of the Act are quite clear. It is aimed, as the Act says (Section 1), at encourag- ing the practice and procedures of collective bar- gaining and at protecting the exercise by workers of full freedom of association, of self-organization and of negotiating the terms and conditions of. their employment or other mutual aid or protection through their freely chosen representative.74 Inasmuch as the discharge of employees for, reasons of union affiliation or concerted activity has been regard- ed by the Board as one of the most effective methods of defeating the exercise by employees-of their rights to self-organization, the Trial Examiner is of the belief that there is danger that the commision of unfair labor practices generally is to be anticipated from Respond- ent's unlawful conduct in the past. It will be recommend- ed, therefore, that Respondent be required to cease and desist from in any manner interfering with, restrain- ing, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act .7.5 RECOMMENDATIONS Accordingly, upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, I recommend, pursuant to Section 10(c) of the National Labor Relations Act, as amended, issuance of the following: 72 N L R B. v. Entwistle Mfg Co , 120 F 2d 532 (C A 4), California Lingerie, Inc , 129 NLRB 912 " Nancy Tortez returned to work on June 10, 1969. 14 Republic Steel Corp v N.L R.B , 311 U.S. 7, 10. 75 N.L R.B v Entwistle Mfg Co , 120 F.2d 532, 536 (C.A 4) 847 ORDER Respondents Marvin Rosenberg and Leon Frieden and Henry Kramer, Co-Partners, Doing Business as Colton Sportswear Mfg.,'individually and jointly, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Directly or indirectly engaging in- surveillance of its employees for the purpose of ascertaining their mem- bership in or activities on behalf of any labor organiza- tion. (b) Using an employment form requiring job appli- cants to disclose their union affiliation, in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. (c) Threating employees with discharge if they support or assist any labor organization, or sign union cards. (d) Discouraging membership in the aforesaid Union, or any other labor organization of its employees, by discriminatorily discharging, or in any other manner discriminating against, any employee in regard to hire, tenure, or any term or condition of employment. (e) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Inez Gonzales, Teresa Soto, Nita Parsons, and Estela Marmolejo immediate, full, and unconditional reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights, privileges, or working conditions, and make them whole for any loss of earnings they may have suffered by reason of the discrimination in the manner set forth in the section hereof 'entitled "The Remedy. 1171, (b) Notify Inez Gonzales, Teresa Soto, Nancy Tortez, Nita Parsons, and Estela Marmolejo if they, or any of them, are presently serving in the Armed Forces of the United States of their right to full reinstatement upon application, in accordance with the Selective Serv- ice Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, social secu- rity records, timecards, personnel records and reports, and all other records necessary or useful to determine or compute the amount of backpay due, as herein provid- ed. (d) Post at its plant premises in Colton, California, copies of the notice attached marked "Appendix."77 "' Tortez who was rehired is entitled to backpay from May 22, 1969, to June 10, 1969 " In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions , recommendations, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of (Cont.) 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Copies of said notice to be furnished by the Regional Director for Region 31 of the Board , shall, after being duly signed by Respondent , be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter , in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced , or covered by any other material (e) Notify the aforesaid Regional Director , in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith '" a United States Court of Appeals the words in the notice reading Posted by Order of the National Labor Relations Board shall be changed to read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board '" In the event that this recommended Order is adopted by the Board this provision shall be modified to read Notify the Regional Director for Region 31 in writing within 10 days from the date of this Order what steps it has taken to comply herewith WE WILL NOT use an employment form requiring applicants to disclose if they belong to a union WE WILL NOT directly or indirectly spy on our employees in order to find out if they are members of or helping any union or make them think we are WE WILL NOT discourage membership in Interna- tional Ladies Garment Workers Union , Local 451, or any other labor organization of our employees, by discriminating against them or firing them, or threatening to do so, because they support any union WE WILL offer to Inez Gonzales , Teresa Soto, Nancy Tortez , Nita Parsons , and Estela Marmolejo immediate and full reinstatement to their jobs with us, and pay them the wages they lost because of their lay off or discharge MARVIN ROSENBERG AND LEON FRIEDEN AND HENRY KRAMER, CO- PARTNERS , D/B/A COLTON SPORTSWEAR MFG (Employer) APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The act gives all employees the following rights To organize themselves To form , join, or support unions To bargain as a group through a representa- tive they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things WE WILL NOT do anything that interferes with these rights Dated By (Representative ) (Title) Note We will notify any of the above-named employees if presently serving in the Armed Forces of the United States of her right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced , or covered by any other material Any questions concerning this notice or compliance with its provisions , may be directed to the Board's Office , Federal Building , Room 12100, 11000 Wilshire Boulevard , Los Angeles , California 90024, Telephone 824-7357 Copy with citationCopy as parenthetical citation