Colton Sportswear Mfg.

National Labor Relations Board - Board Decisions

May 27, 1970

182 N.L.R.B. 825 (N.L.R.B. 1970)

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