Leather Center

National Labor Relations Board - Board Decisions

Jul 28, 1992

308 N.L.R.B. 16 (N.L.R.B. 1992)

16
308 NLRB No. 4
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent has excepted to the judge’s finding that employee
Michael Cantu was discriminatorily laid off in violation of Sec.
8(a)(3) of the Act. The Respondent contends that the General Coun-
sel did not allege in the complaint that Cantu was selected for layoff
because of his union activity and that this issue was not litigated at
the hearing. We disagree. The complaint alleges at par. 11 that
Cantu was laid off because he ‘‘joined, supported, or assisted the
Union,’’ and the record shows that this issue was fully litigated at
the hearing. Accordingly, we find no merit to the Respondent’s ex-
ception.
In sec. III,B,2, par. 41 of his decision, the judge stated that Union
Representative Tom Keane testified that of the 25 employees who
were laid off, only 2 were not members of the union organizing
committee. The record shows that 6 of the 25 laid-off employees
were not members of the union organizing committee. This inadvert-
ent error does not affect the outcome of the case.
2 The judge found that the Respondent violated Sec. 8(a)(1) by
threatening employees with plant closure and by creating the impres-
sion that their union activities were being monitored, but he failed
to include these findings in his conclusions of law. Thus, we will
amend the judge’s conclusions of law to include these findings.
3 We shall modify the judge’s recommended Order to require the
Respondent to remove from its files any reference to the unlawful
layoffs, and to require that the Respondent cease and desist from
threatening employees with plant closure and creating the impression
that the union activities of the employees are being monitored. We
shall also substitute a narrow cease-and-desist order for the broad
order recommended by the judge.
Leather Center, Inc. and International Union of
Electronic, Electrical, Salaried Machine and
Furniture Workers, AFL–CIO. Case 16–CA–
14624
July 28, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 18, 1992, Administrative Law Judge Ger-
ald A. Wacknov issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified and set forth in full below.3
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 3.
‘‘3. The Respondent has violated Section 8(a)(1) of
the Act by interrogating employees regarding their
union activity, threatening employees with discharge,
plant closure, loss of benefits, or other reprisals be-
cause of their union activity, creating in the minds of
employees the impression that their union activities are
being monitored, and suggesting that an employee
would receive a promotion if he discontinued his union
activity.’’
ORDER
The National Labor Relations Board orders that the
Respondent, Leather Center, Inc., Carrollton, Texas, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge, plant clo-
sure, loss of benefits, or other reprisals, in the event
they select or fail to select International Union of Elec-
tronic, Electrical, Salaried Machine and Furniture
Workers, AFL–CIO, or any other labor organization,
as their collective-bargaining representative.
(b) Coercively interrogating employees about their
union activities.
(c) Creating in the minds of its employees the im-
pression that their union activities are being monitored.
(d) Suggesting to employees that they may be pro-
moted in the event they discontinue their support for
the Union.
(e) Laying off employees because of their union ac-
tivity.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to the following employees immediate and
full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed, and make them whole
for any loss of earnings and other benefits suffered as
a result of the discrimination against them, in the man-
ner set forth in the remedy section of the decision:
Yvonne Acy Carmelo Hernandez
Alicia Alfaro Rafael Hernandez
Everett Alvarado Tom Jordan
Jesus Aranda Joseph Minero
Juan Becerra Rolando Morante
Juan Jose Cabral Tom Norton
Simon Cruz Antonio Olivarez
Claudia Espinoza Catalina Perez
Diana Garcia Victor Rodriguez
Miguel Gonzales Paul Salazar
Enedina Gonzalez David Salinas
Eli Hague Martin Vargas
David Luna Michael Cantu
17LEATHER CENTER
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(b) Remove from its files any reference to the un-
lawful layoff of the above-named employees and notify
each of them in writing that this has been done and
that the layoff will not be used against them in any
way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its Carrollton, Texas facility copies of the
attached notice marked ‘‘Appendix.’’4 Copies of the
notice, on forms provided by the Regional Director for
Region 16, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice. Section 7 of
the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten you with discharge, plant
closure, loss of benefits, or other reprisals in the event
you select or fail to select International Union of Elec-
tronic, Electrical, Salaried Machine and Furniture
Workers, AFL–CIO, or any other labor organization,
as your collective-bargaining representative.
WE WILL NOT coercively interrogate you about your
union activities.
WE WILL NOT create the impression in your minds
that we are monitoring your union activities, or suggest
to you that you may be promoted if you discontinue
your support for the Union.
WE WILL NOT lay off or otherwise discriminate
against any of you for supporting International Union
of Electronic, Electrical, Salaried Machine and Fur-
niture Workers, AFL–CIO or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer to the following employees imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to seniority or any other
rights or privileges previously enjoyed, and WE WILL
make them whole for any loss of earnings and other
benefits suffered as a result of the discrimination
against them, less any net interim earnings, plus inter-
est:
Yvonne Acy Carmelo Hernandez
Alicia Alfaro Rafael Hernandez
Everett Alvarado Tom Jordan
Jesus Aranda Joseph Minero
Juan Becerra Rolando Morante
Juan Jose Cabral Tom Norton
Simon Cruz Antonio Olivarez
Claudia Espinoza Catalina Perez
Diana Garcia Victor Rodriguez
Miguel Gonzales Paul Salazar
Enedina Gonzalez David Salinas
Eli Hague Martin Vargas
David Luna Michael Cantu
WE WILL remove from our files any reference to the
unlawful layoff of the above-named employees and no-
tify each of them in writing that this has been done
and that the layoff will not be used against them in
any way.
LEATHER CENTER, INC.
Ruth Small, Esq. and Edward Valverde, Esq., for the General
Counsel.
Robert G. Mebus, Esq. and William P. Finegan, Esq.
(Haynes & Boone), of Dallas, Texas, for the Respondent.
Jaime P. Martinez, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursu-
ant to notice, a hearing in this matter was held before me
in Fort Worth and Dallas, Texas, on June 25, 26, and 27;
July 16, 17, and 18; and August 6, 7, and 8, 1991. The
Charge was filed by International Union of Electronic, Elec-
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The tally of ballots shows that of approximately 222 eligible vot-
ers the vote was 70 for and 112 against the Union, and 29 ballots
were challenged.
2 All dates or time periods are within 1990 unless otherwise speci-
fied.
trical, Salaried Machine and Furniture Workers, AFL–CIO
(the Union) on June 25, 1990. An amended charge was filed
by the Union on June 26, 1990. Thereafter, on September 28,
1990, the Regional Director for Region 16 of the National
Labor Relations Board (the Board) issued a complaint and
notice of hearing alleging violations by Leather Center, Inc.
(the Respondent) of Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act). On the same date the Re-
gional Director issued an order directing hearing, order con-
solidating cases and notice of hearing, whereby a related rep-
resentation case (Case 16–RC–9308) was consolidated with
the unfair labor practice proceeding for the purpose of re-
solving election objections filed by the Union following a
representation election held on June 29, 1990.1 The Respond-
ent’s answer to the complaint, duly filed, denies the commis-
sion of any unfair labor practices.
On August 27, 1991, subsequent to the close of the hear-
ing, the Union requested the dismissal of the representation
proceeding in order to permit the election results to be cer-
tified, and set forth its intention to file a new election peti-
tion. By Order dated September 6, 1991, I granted the
Union’s request, severed the representation proceeding from
the unfair labor practice case, and remanded the representa-
tion matter to the Regional Director.
The parties were afforded a full opportunity to be heard,
to call, examine and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of the hearing, briefs
have been received from counsel for the General Counsel
and counsel for the Respondent.
On the entire record, and based on my observation of the
witnesses and consideration of the briefs submitted, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Delaware corporation with its prin-
cipal office and place of business located in Carrollton,
Texas, where it is engaged in the manufacture, distribution,
and sale of leather furniture. In the course and conduct of its
business operations the Respondent annually purchases and
receives goods or services valued in excess of $50,000 di-
rectly from suppliers located outside the State of Texas.
It is admitted, and I find, that the Respondent is now, and
has been at all times material an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the above-named Union is,
and has been at all material times, a labor organization with-
in the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are whether
the Respondent has violated and is violating Section 8(a)(1)
and (3) of the Act by interrogating employees and threaten-
ing them with discharge, and by laying off 26 employees as
a result of their interest in and activities on behalf of the
Union.
B. The Facts
1. The 8(a)(1) violations
The Respondent manufactures leather furniture. It sells the
furniture through approximately 26 showrooms located
throughout the United Sates, and maintains its manufacturing
facility in Carrollton, Texas, where, at the time of the events
here, it employed approximately 200 production employees.
Employee Diana Garcia and her husband, who did not
work for the Respondent, were instrumental in initially con-
tacting the Union. Garcia testified that on March 22, 1990,2
Production Manager Ricardo Sanchez called Garcia to his of-
fice. He said he just wanted to ask her a question and he
wanted her to answer with the truth. He said that some peo-
ple were telling him that she and her husband were trying
to bring in the Union. Garcia denied it, and asked Sanchez
to name the people. He refused to give her their names. He
told her that whatever she said it would not be held against
her or cause her any harm, and that he merely wanted to
know what the problems were so that he could help.
Sanchez also said, according to Garcia, that he had worked
for a union or under a union contract about 10 years before
and there wasn’t anything good about it; that unions obtained
very little, and used all kinds of lies and other things to ob-
tain the signatures of the people. He told her that there could
be nothing good in the way the union hides its activities, and
made the analogy that it is ‘‘like when a man rape a little
girl he is doing that in hiding because it is an ugly and bad
thing to do and that was the way that the Union was working
in hiding.’’ Sanchez went on to say that:
And, if the Union comes to the company [it is] going
to obtain very few things. The company even is pos-
sible to be closed. What everybody here is going to do
without work? So, that’s what he wants to help to the
people because many people signed without knowing
what they are signing for. He wants to help everybody
there. Whenever he wants to go to his offices his doors
were always open for everybody.
Ricardo Sanchez testified that shortly after being told of
Diana Garcia’s activity on behalf of the Union, Sanchez
called her into his office. He told her that he had heard that
she and her husband were trying to bring in the Union. Gar-
cia denied that she and her husband were engaged in such
activity. According to Sanchez, nothing else about the Union
was discussed, although there was discussion about other
matters. The conversation lasted 5 or 10 minutes.
Gloria Chavez, a former employee who is now a rep-
resentative for the Union, testified that she and other employ-
ees were active on behalf of the Union in March. During a
meeting, apparently in late March or early April, attended by
all the supervisors, Kent Bouldin, the Respondent’s president
and chief executive officer, told the employees that it was up
19LEATHER CENTER
3 There is no complaint allegation that Leon’s conduct during the
dispute in the restroom is violative of the Act.
to the employees if they wanted a union. Between that date
and April 9, on which date Chavez was terminated for rea-
sons unrelated to the instant matter, Chavez was summoned
to Ricardo Sanchez’ office. Sanchez said that he knew she
was talking to employees about the Union. Chavez acted sur-
prised, and denied it. Sanchez said that another employee,
Dora Garcia, had told him about Chavez’ involvement with
the Union, and that Chavez should be careful.
Ricardo Sanchez denied that he ever spoke with Chavez
about the Union.
On Saturday, March 24, two employees who had become
boisterous at a union meeting had been ejected from the
meeting and went to the Respondent’s premises to continue
their activities at a fajita party which, coincidently, the Re-
spondent was having for its employees. Employee David Sa-
linas, a relative of various supervisors or managers of Re-
spondent, also had attended the union meeting. Salinas testi-
fied that he was sitting with the Respondent’s president of
manufacturing, Juan Leon, when the two aforementioned em-
ployees walked in and boasted that they had been evicted
from the union meeting. Production Manager Ricardo
Sanchez was present and, according to Salinas, asked them
several questions about the meeting. However, Salinas did
not recollect the questions.
Shortly thereafter, Salinas happened to be in the restroom
at the same time as the two other employees. They were dis-
cussing the Union when Juan Leon, vice-president of manu-
facturing, walked in and stood there for a while and listened
to their conversation. Salinas said that he thought they need-
ed a union. Leon remarked that the Union was not a good
idea and that it would mess up the Company. Leon became
angry, pushed Salinas against the restroom wall, and a fight
started. The scuffle was short-lived and was quickly broken
up. Both Salinas and Leon had been consuming liquor at the
party.3
Employee David Luna attended the fajita party with a co-
worker, Eli Hague. They had also previously attended the
union meeting. Luna testified that at the party Leon said, ‘‘I
hear a couple of you guys have been attending union meet-
ings.’’ Luna said, ‘‘Yes, everybody is entitled to their own
opinion.’’ Leon replied, ‘‘Well, you know you are f—king
with the family.’’ Luna said, ‘‘Well, I am sorry.’’ Then Leon
said to Kent Bouldin, Respondent’s president and chief exec-
utive officer, who had walked into the room, that he wanted
Bouldin to hear this ‘‘crap.’’ Luna decided that it was time
to leave; he shook Bouldin’s hand, thanked him for the party,
and left.
Employee Eli Hague testified that she was present during
the aforementioned conversation. Leon started the conversa-
tion. He said to Luna, ‘‘I heard you just came back from a
union meeting.’’ Luna replied that he was free to do what-
ever he wanted. Leon said, ‘‘What in the f—k do you think
you are doing to my family here?’’ Luna said to Hague he
thought it was time for them to go. Leon said, ‘‘Okay; if you
want to play hardball, we will play hardball.’’ He motioned
for Bouldin to come over and said, ‘‘Come here and listen
to this shit that is going on here.’’ Luna shook hands with
Leon and Bouldin, thanked them for the party, and Hague
and Luna left.
The following Monday, March 26, Salinas approached
Leon about the altercation in the restroom. Leon said that
they had been partying and that what happened would not af-
fect Salinas’ job or anything. Leon also said that he was
going to give certain people a week or so to think about how
things could be changed at Leather Center.
Later the same day, Bouldin called Salinas into his office.
Juan Leon and Stella Hanna, who is in charge of the Re-
spondent’s human resources department and is also a relative
of management, were present. Bouldin said that Salinas had
been working there for quite some time together with various
family members, and that Bouldin felt that ‘‘we were close
and like family.’’ He said, according to Salinas, ‘‘that I was
messing up, referring to being involved with the union, and
that not only was [I] jeopardizing my own job, that I was
also jeopardizing the job of the people in my family there,
and that I needed to think about that.’’ He also told Salinas
that he thought there would be a spot for him in management
in the future, but that he needed to change his attitude.
Leon testified that he does not recall much about the
March 24 incidents at the fajita party as he and others had
been drinking and ‘‘We got a little bit intoxicated.’’ Leon
does not recall Ricardo Sanchez asking the two employees
any questions about the union meeting. He does not remem-
ber the details of the fight with Salinas in the restroom or
whether the fight had anything to do with any conversation
about the Union. He does recall that Salinas did come into
his office the following Monday and apologized for his con-
duct, but he was unable to recall whether he attended a meet-
ing later that day with Bouldin, Salinas, and Hannah; he did
testify, however, that such a meeting may have taken place.
Bouldin testified that he was present at the fajita party
when two employees came in and were boasting very loudly
that they had just been thrown out of a union meeting. When
they brought that up, Bouldin left the room. On cross-exam-
ination, Bouldin explained that he left the room because he
had been ‘‘counseled on the rules,’’ and was fully aware that
‘‘I am not supposed to discuss union affiliation with people
in a voting unit; therefore I immediately left.’’ He does not
believe that he ever talked to Salinas about the fight with
Juan Leon at the fajita party.
Bouldin testified that the Respondent held a meeting with
employees on the following Monday, March 26. Such meet-
ings, called ‘‘townhall’’ meetings, are not infrequent, and the
subject of the meeting had nothing to do with the Union. At
the meeting several employees, including David Salinas, had
brought up various concerns. Salinas had expressed the con-
cern that he, and apparently most of the other employees,
had been changed from a piece rate to an hourly rate, and
this resulted in a decrease in pay. Later Bouldin spoke to
each of the complaining employees on an individual basis.
Regarding his conversation with Salinas, Bouldin testified
that he called Salinas into the office and said:
Yes. That I was very disappointed with him, that a
lot of his family work in Leather Center. He was part
of the family, I didn’t really like the way he was going
about doing things.
He was always resisting management, was talking
very badly about the company on a continuing basis,
and was just generally causing a lot of problems. And
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I was trying to help him out, get him headed in the
right direction.
Bouldin denied that he said anything to Salinas about the
possibility of a management position for him in the future.
Salinas further testified that on about May 5, Ricardo
Sanchez told him that he had a list of employees he was
going to lay off. Sanchez denied that he made this statement
to Salinas or that he had any list of employees at that time
who were to be laid off.
Employee Gloria Chavez testified that on April 5, during
her break, as she was soliciting employee Antonio Olivarez
to sign a union authorization card, her acting supervisor, Ste-
ven Gonzalez, approached. Chavez hid the card, and Gon-
zalez said, ‘‘I know you are up to your union tricks again.’’
Chavez replied that she didn’t know what he was talking
about. Olivarez corroborated the testimony of Chavez, and
testified that he considered Gonzalez to be his supervisor.
The Respondent denies that Steven Gonzalez was a super-
visor in the recliner department (the recliner cell) on April
5. The evidence shows that Gonzalez had been a supervisor
in another cell (the fantasy cell) at least until March 6, and
issued various disciplinary warnings to employees. There-
after, he was transferred to a position in the receiving depart-
ment, and sometime thereafter he was placed in charge of the
recliner cell, apparently on a temporary basis. Chavez and
Olivarez worked in the recliner cell.
Employee Michael Cantu, a leather department employee,
testified to the following conversation with Ricardo Sanchez
on about April 17:
It was the day after I had signed the card. I was work-
ing around my work area and [Ricardo Sanchez]
walked by and he called me over there, and he told me
if I knew anything about the union. And I replied no
and I asked him why. And he said he was just wonder-
ing, and walked by—kept walking and laughing into his
office—I mean, into the main office.
Sanchez, as production manager, had no supervisory author-
ity over the leather department employees, as they were not
considered to be part of the production operations. Sanchez
did not deny that he asked Cantu about the Union.
The Respondent was experiencing financial difficulties,
and on Saturday, April 28, the Respondent’s management
met and determined that a large layoff was necessary. A lay-
off of about 65 primarily nonproduction employees was im-
plemented the following Monday, April 30.
Employee Diana Garcia testified that shortly after the
April 30 layoff, at a meeting of the employees in her cell,
Cell Manager Tommy Gonzalez told the employees that
there had been a layoff of about 60 people in the front of-
fice, but there would be no more layoffs.
Employee Juan Becerra testified that at a cell meeting in
early May an employee asked if there was a possibility of
any further layoffs. Supervisor Marco Cabrero replied that
there would not be any layoffs in the production area.
On Wednesday, May 9, the Union filed a representation
petition with the Board, and later that afternoon, coinciding
with the employees’ 2 p.m. break, the Union held a rally ad-
jacent to the parking lot at the Respondent’s manufacturing
facility. Apparently there were about 40 employees present.
Various union representatives and employees distributed cop-
ies of the aforementioned representation petition, printed in
both Spanish and English, and handed out T-shirts, caps, and
a variety of buttons, all bearing the union logo or other sup-
portive union slogans. Various employees put on the caps,
and pinned the buttons to their clothing. Production Manager
Ricardo Sanchez came out into the parking lot to observe
what was happening.
Employee Alicia Alfaro testified that she was standing in
the parking lot next to employee David Luna and Ricardo
Sanchez when Sanchez said to Luna:
You look very pretty with your buttons and your caps,
but you are going to look a lot prettier when you are
going to be crying after . . . you [are] fired.
Employee Miguel Gonzalez testified that he overheard one
of the union representatives, Eddie Felan, ask Sanchez
whether there would be any more layoffs. Sanchez said there
would not. Sanchez also said to the employees, according to
Gonzalez, ‘‘You look so pretty with your blue caps. Let’s
see how you are going to look when you are not working
here.’’
Employees Carmelo Hernandez, Juan Jose Cabral, Jesus
Aranda, Yvone Acy, and Eli Hague testified similarly regard-
ing Sanchez’ remarks to the employees who were wearing
union caps and buttons.
During the remainder of that day, and on the following 2
days, Thursday and Friday, May 10 and 11, numerous em-
ployees wore caps and buttons during the workday. It was
estimated that as many as 100 employees wore them on
Wednesday after the rally; and the record shows that fewer
employees wore them during the next 2 days. Employee
Juana Rodriguez, called as a witness by the Respondent, tes-
tified that about 80 employees were wearing either a union
cap or button at work on the afternoon of May 9. Further,
Rodriguez testified that she had an opportunity to observe
how many people were wearing union caps or buttons on the
following 2 days, and she estimated that about 40 employees
wore such union identification. Commencing with the follow-
ing Monday, May 14, and continuing for several weeks, the
number of employees wearing caps or buttons declined sig-
nificantly; Rodriguez was not asked to estimate the number.
Employee Enedina Gonzalez testified that on May 10, the
day on which Mother’s Day is celebrated in Mexico, she
wore a bouquet of flowers on her clothing. Later she re-
placed it with a union button. Gonzalez testified that Sanchez
walked by and said, ‘‘Hey, Enedina, don’t you think this
looks a lot better, the flowers, on you than that button
there?’’ She didn’t reply.
Ricardo Sanchez testified that he may have made a state-
ment to the effect that flowers were more becoming than
union buttons, but he does not specifically recall making the
statement to Gonzalez or any other employee.
Employee Yvonne Acy testified that shortly after the
May 9 rally she was at the Alamo Restaurant, a restaurant
or cafeteria at the Respondent’s premises. Acy was wearing
a union button, and James Gimble, the manager of the res-
taurant, came up to her table where she was sitting with em-
ployee Tom Norton and another employee, and asked her if
she was stupid enough to vote for a union. Acy said yes.
Gimble said, according to Acy, that ‘‘Well, you all know
that if you all get a union in here, they will close the Alamo
21LEATHER CENTER
down.’’ Acy asked him why that would happen, and Gimble
replied that, ‘‘Well, it is a benefit for you all, and if you get
a union in, they will take away some of your benefits.’’ Em-
ployee Tom Norton corroborated Acy’s testimony.
During the morning of Monday, May 14, the Respondent
laid off approximately 25 production employees. The record
shows that the regular payday was the following day, Tues-
day, May 15, as the employees are paid on the 15th and 30th
of each month. A Carrollton police officer was in the room
as the employees were given their final checks, which con-
sisted of pay through May 15 together with their accrued va-
cation pay. They were told that the layoff was due to finan-
cial difficulties the Respondent was experiencing. Another
police officer was stationed outside the room.
Employee Martha Moya, was not laid off on May 14.
However, at the time of the hearing she no longer worked
for the Respondent as a result of an accident which occurred
shortly before the election. Moya testified that she did not
wear a union cap or buttons at work. During the 9:15 morn-
ing break on May 14, Bouldin held a meeting with a group
of employees. He said the Company was passing through
some bad times, and he was forced to lay off some people
because sales had declined. Someone asked why particular
individuals were laid off rather than new employees who
were not familiar with the work. Bouldin replied, according
to Moya, ‘‘because they were causing problems.’’ He did not
state what problems the employees were causing. Someone
asked whether the employees would be recalled when sales
picked up, and Bouldin said no. However, Moya also testi-
fied that at ‘‘the first [meeting] that we ever had’’ Bouldin
said that he did not like the Union but that the employees
could get it if they wanted to.
Bouldin testified that on the afternoon of May 14, after the
layoff had taken place, he held ‘‘townhall’’ meeting with the
employees. He did not state that people who had been hand-
ing out cards were gone for good; nor did he state that he
had gotten rid of the troublemakers. He simply tried to reas-
sure everyone that they needed to build a team, told them
about the financial condition of the Company, and said that
the Respondent needed to move in a more positive direction.
Moya attended another meeting on May 21 in the break
area. Bouldin conducted the meeting. He announced that he
would conduct a meeting every month. He was again asked
why he laid off employees who knew the work. He replied,
according to Moya, that he knew the employees were un-
happy about the layoff of the people that ‘‘knew well’’ how
to do the job, and ‘‘he told us that the people that was pass-
ing those cards and running about with secrets—those people
is [sic] never going to come back.’’
Moya received a 5-cent-an-hour wage increase in May. On
or about May 15, during the course of a conversation in Ri-
cardo Sanchez’ office regarding the raise, Sanchez asked her
‘‘what she was thinking about the Union.’’ She replied that
the reason the employees wanted the Union was because the
supervisors were dealing with the workers as if they were
animals rather than employees.
Employee Ofelia Solis is currently employed by the Re-
spondent, and has been an employee for 5 years. Prior to
1989, Maria Leon, Juan Leon’s mother, was Solis’ super-
visor. Currently, Maria Leon is a seamstress and works to-
gether with other seamstresses in Solis’ department. Solis
testified that during a conversation in the Respondent’s din-
ing room, in the presence of two other coworkers, Maria
Leon said that if the Union was voted in the Company would
be closed and another company would be opened for those
who were not in the Union. She also said that the union em-
ployees would probably be without work, and their ‘‘record
is going to be all the time affecting us, because it is going
to be in the computer—all that in relation with the social se-
curity.’’
Solis testified that she attended the company meeting the
day of the layoff, during which Bouldin talked about the em-
ployees who had been laid off. Bouldin spoke in English,
and Juan Leon translated his remarks into Spanish. Solis was
not asked what Bouldin or Leon said, and therefore she did
not corroborate the testimony of Moya, discussed above.
The parties stipulated that at all times material herein
Maria Leon has been a seamstress/material handler. She
voted in the election and her ballot was challenged. No de-
termination of her status has been made. She is salaried, as
are managers or supervisors; the other employees are hourly
paid.
At the time of the election Javier Rico was a unit em-
ployee. He was made a manager in about May 1991, prior
to the hearing. Rico testified that on June 27, 2 days before
the election, he and employee Rowdy Charpentier held a
meeting with other employees during the 2 p.m. break. Sev-
eral supervisors were also present. Rico and Charpentier pre-
sented their views in favor of the Union. Rico testified that
at the end of the meeting he had a conversation with Ricardo
Sanchez regarding the Union: Rico said that he favored the
Union, and Sanchez said that the company didn’t need out-
siders. When asked to recollect what else Sanchez said, Rico
testified that he heard someone say, ‘‘If you not win, you
guys fired,’’ but he was not sure who made the statement.
However, Rico’s affidavit states:
As the people were beginning to leave, as Sanchez was
walking to the shipping area, Sanchez told us in Span-
ish, ‘If you guys don’t win, you guys are fired.‘ He
said nothing more and left.
Sanchez testified that although he was present during the
spontaneous gathering of employees who were discussing the
Union he made no statement to the effect that the employees
would be discharged if the Union was not voted in. He did
tell the employees that they were not being given the com-
plete picture, and mentioned that he was aware that at an-
other plant certain employees who had gone on strike had
been replaced.
2. The May 14 layoff
Fernando Sanchez is executive vice president of finance
and administration. His brother is Ricardo Sanchez, produc-
tion manager. Fernando Sanchez testified that the Respondent
had an exceptionally good sales month in January 1990,
which constituted the largest sales month in the Respondent’s
approximately 10-year history. As a result it was anticipated
that the Respondent would have a highly profitable 1990,
and therefore it immediately purchased considerable quan-
tities of leather. However, the January sales were apparently
an anomaly, and in February 1990, the last month of its fis-
cal year, the Respondent began experiencing severe financial
difficulties. In part, the loss of over $1 million for February
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was due to the fact that certain expenses incurred throughout
the fiscal year, for example, accrued vacations, were not deb-
ited until the final month. The audited consolidated financial
statement as of February 28, 1990 (fiscal 1990), shows a
substantial loss for the year. While sales and production were
over 25 percent greater than the prior year, the cost of sales
increased even more. Generally, the cost of sales includes the
following: occupancy expenses of some 26 showrooms
throughout the country; increased labor costs associated with
increased production; and selling, general, and administrative
costs, including increased advertising, compensation, and
transportation expenses.
Sanchez explained that due to its financial condition the
Respondent began incurring serious cash flow problems and
was unable to secure financing in order to enable it to timely
pay its vendors, including vendors who supplied it with its
most essential raw product, leather. The large increase in
sales for the month of January was followed by a substantial
$2 million decline in sales for February. Sales for March (the
second highest sales month in the Respondent’s history) in-
creased about $1 million over February. At this point the Re-
spondent’s four principals granted themselves a 25-percent
increase in salary. However, April’s sales again plummeted
about $2 million. Sales in May increased approximately $1
million over April. The document entitled ‘‘Written Sales by
Month’’ shows that the Respondent’s sales have generally in-
creased since 1987, that they reached a peak in January, and
then began a general downturn until August, when they
began to increase.
Customers who purchase furniture through the Respond-
ent’s showrooms put down a deposit of from 30 to 50 per-
cent of the purchase price. They receive the furniture from
two to 6 weeks later, at which time they pay the balance.
The deposits provide cash flow for the Respondent’s oper-
ations. Thus, when written showroom sales are down, the
cash flow is impacted immediately.
Fernando Sanchez testified that commencing in February,
sales were not high enough to keep up with expenses, and
the Respondent took various cost-cutting measures in order
to counteract this trend. The four principals of the Respond-
ent took pay reductions of about 25 percent in May, and, ac-
cording to Sanchez, but not reflected in any documents prof-
fered by the Respondent, an additional 25-percent reduction
beyond that.
The most significant cost-cutting measure, however, was a
reduction in force. Sanchez testified that at a meeting held
on Saturday, April 28, the Respondent’s four owners or
‘‘principals,’’ including Sanchez, initially decided to lay off
approximately 80 individuals, comprising 15 percent of its
total employee complement. The layoff was to affect all
areas of the Respondent’s operations, including administra-
tion, transportation, marketing, and manufacturing. This ini-
tial decision, however, was modified as a result of the objec-
tion of Juan Leon, vice president of manufacturing, who con-
vinced the other principals that the manufacturing employees
(associates) should not be included in the layoff at that time.
According to Sanchez, Leon said:
Look, guys, we need them. They are valuable people.
They are low overhead. Every hour they produce is as
hour that, you know, goes into the value of the fur-
niture. We get it back.
Sanchez testified that salespersons at the showrooms and ad-
ministrative personnel ‘‘were creating a lot more overhead
than value,’’ but that, as maintained by Leon, the manufac-
turing employees would be needed if sales improved as a re-
sult of furniture promotions which had been scheduled for
May. Therefore, according to Sanchez, it was decided ‘‘to
wait for the April numbers and see if the promotions that
were running on a weekly basis for the following two weeks
would work.’’
On Monday, April 30, approximately 65 nonmanufacturing
employees were laid off. The selections for layoff were made
by the various vice presidents or by people designated by
them, and, according to Sanchez, ‘‘by noon everybody was
gone.’’
Sanchez testified that he received the financial report for
April on Monday, May 7. He brought them to a corporate
meeting which was held the following day, Tuesday, May 8.
As noted above, the written sales for April had declined from
the previous month. However, Sanchez noted that the Re-
spondent’s written sales are available by computer on a daily
basis, and these sales are looked at each day. Sanchez testi-
fied that although the April financial report was not good, he
was ‘‘more impacted by the situation on our cashflow. We
basically couldn’t pay anybody. We had to pay our landlords
and employees first, and there was very little money to pay
vendors with.’’ Sanchez then persuaded the principals that
they needed to proceed with the layoff of the manufacturing
employees which had been debated, but deferred, at the ear-
lier April 28 meeting. According to Sanchez, he told the
principals that:
The trend is down. It doesn’t seem it is going to turn
back up really soon. We need to save money as soon
as possible. Payroll is one of the things that we have
to pay first. I mean, we give that priority. We don’t
want employees receiving bad checks. So we decided
that, yes, we had to do it.
It was decided at that meeting to schedule the layoff of
the manufacturing employees for the end of the pay period
which, according to Sanchez, was Monday, May 14.
In the interim, according to Sanchez, on Wednesday,
May 9, the Union held a rally adjacent to the Respondent’s
parking lot during the afternoon break, and also the Respond-
ent obtained a copy of the representation petition which the
union representatives had handed out during the rally. The
petition, filed with the Board the same day, defines the bar-
gaining unit as including production and maintenance em-
ployees including lead person, but excluding all other em-
ployees, professional employees, confidential employees, of-
fice employees, truckdrivers, guards, watchmen, and super-
visors as defined by the Act.
Sanchez testified that the principals met with the Respond-
ent’s attorneys on the evening of May 9. They asked the at-
torney what the petition meant, and explained that they were
preparing to implement the previously agreed-upon layoff of
the manufacturing employees. The attorney, who is not asso-
ciated with the law firm currently representing the Respond-
ent, stated, according to Sanchez, that ‘‘you are playing with
fire, because this is going to give you some trouble.’’ It was
explained to the attorney that this was a predetermined busi-
ness decision, and the employees needed to be taken off the
23LEATHER CENTER
4 The Respondent’s attorney represented at the hearing that all or
virtually all the laid-off employees had been recalled and were back
at work.
payroll. The attorney told them to go ahead with the layoff
‘‘[i]f it is a business decision and you believe you have got
to do it.’’
Fernando Sanchez testified that the Respondent’s cash
flow position, which is monitored daily, was precarious. In
March, it took an ‘‘incredible’’ negative jump, as evidenced
by a chart, introduced into evidence, entitled ‘‘Average Neg
Cash Position By Month.’’ Apparently this was due to a
combination of the low February sales, coupled with the fact
that the Respondent purchased a large amount of leather in
January for which vendors needed to be paid about 30 days
thereafter. The vendors were called and told that they would
have to cooperate, and that the Respondent needed their help
to extend the terms of the leather purchases. The vendors
agreed, but started charging interest on the unpaid balances.
Sanchez testified that ‘‘in May we [had a] tremendous sale
and we brought cash and we turned accounts payable and
made everybody happy.’’ Sanchez said that the Respondent
runs a sale every single weekend, and such sales generate
more business, particularly the 3-day weekend sales when the
Respondent makes a ‘‘big push.’’ One such weekend sale is
the annual Memorial Day sale at the end of May; and Me-
morial Day and Labor Day are the two biggest weekends for
the Respondent. The sale prices during the Respondent’s
1990 Memorial Day weekend sale were, according to
Sanchez, ‘‘too good,’’ as the customers purchased large
quantities of the sale items which were sold on a low margin
in order to attract customers to the showrooms. Rather that
purchase upgraded furniture at higher prices, the customers
purchased, according to Sanchez, ‘‘humongous quantities’’ of
the promotional items.
The unanticipated response to the Respondent’s Memorial
Day sales promotion, according to Sanchez, caused a lot of
problems with the manufacturing of the furniture, ‘‘because
basically all the cells were making those pieces. And our
manufacturing cells are not designed to get that extreme of
a mix of furniture. So that slowed down the manufacturing
process on top of that.’’ Sanchez explained that customarily
one cell would have priority on making one particular style
of furniture, and the overflow, if any would be given to other
cells. Because of the one particular style that was purchased
in large quantities during the Memorial Day sale, the Re-
spondent utilized five cells to make the same style of fur-
niture. Employees had to work overtime and on Saturdays
for about a month in order to get caught up. However, the
laid-off employees were not recalled because the Respondent
did not anticipate that sales would pick up again thereafter.
A necessary component of the Respondent’s ‘‘just in
time’’ method of production, discussed below, was overtime.
As the employees were not permitted to clock out until they
had completed the scheduled production for the day, over-
time was customarily extensive. Overtime hours are paid at
time and one-half, and are significantly more expensive to
the Respondent in terms of its profit; they also impact nega-
tively on the Respondent’s cash flow.
The evidence shows the following number of overtime
hours worked during the months indicated within the six
cells and, also, within the production support departments,
namely, leather, woodshop, and maintenance.
1989 1990 1991
November 3597 January 5108 January 5669
December 5629 February 8787 February 6139
March 4393
April 5223
May 1664
June 7163
July 6418
August 4374
September 3824
October 981
November 4278
December 5871
The above data shows that overtime was the highest during
the months following the highest dollar volume of written
showroom sales. Thus, in February, following the peak
month of January 1990, the overtime hours totaled 8787; and
the high volume sales month of May, which reflects the Me-
morial Day sale orders, resulted in a correspondingly high
number of overtime hours, totaling 7163 hours in June 1990.
The following is a breakdown of the hours of overtime
worked in each of the six cells during June 1990: 1370,
1508, 1065, 630, 871, and 1114.
According to Sanchez, the Memorial Day sale was excel-
lent and it alleviated the immediate cash flow problems; the
Respondent ‘‘paid a lot of vendors and got a fresh start.’’
But the sale of large quantities of low margin furniture did
not translate into appreciably greater profits. Sanchez testi-
fied that the situation worsened somewhat after that through
August, but the cost cutting and, in effect, a modest raising
of prices, brought about a financial recovery. According to
Sanchez, ‘‘from that point on [August] the strategy started
working and up until today it continues to go up.’’ On Octo-
ber 3, and again in February 1991, the Respondent recalled
many of the manufacturing employees who had been laid off
on May 14.4
Fernando Sanchez testified that the May 14 layoff did not
include transportation employees. He said that the transpor-
tation people were discussed at the April 28 meeting, but that
there was no decision to lay them off. However, Sanchez in-
dicated that some transportation employees were apparently
laid off in the summer of 1990. Sanchez explained that the
transportation employees get paid by the mile, and if they
don’t drive, they don’t get paid, ‘‘So that is why the impact
on economics was not there.’’ Sanchez further testified that
Leon also convinced the principals, apparently at the May 8
meeting, not to lay off the transportation people because they
were getting paid by the mile and ‘‘if we didn’t have any
furniture going out, they were not going to get paid. So we
decided to keep them.’’
Sanchez testified that Production Manager Ricardo
Sanchez was not told until he was called to a meeting at
about 9 a.m. on Friday, May 11, that he was the one who
would have to select the employees to be laid off. He was
chosen to make the decision because, according to Fernando
Sanchez, he knew how the cells were supposed to operate
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The record indicates that prior layoffs occurred in 1988 and
1989. Such layoffs involved only about three to five employees on
each occasion, and it appears from certain abbreviated testimony that
employees laid off were newer employees with the least seniority.
The Respondent did not proffer any specific evidence regarding the
details of these prior layoffs. Further, the layoffs were instituted
prior to the time the Respondent went from piecework to hourly pay
for its production employees, and prior to the ‘‘just in time’’ method
of production.
and basically knew the people, ‘‘but he wasn’t as close as
the supervisor of the cell as to know who could be or not
involved with the union.’’ Ricardo Sanchez was instructed to
cut from 10 to 15 percent of the manufacturing labor force,
and was told that his selections should be made according to
each employees’ performance. He was further instructed to
commence the selection process immediately so that the
human resources department could prepare the necessary pa-
perwork. Ricardo Sanchez selected 25 employees, and they
were laid off the following Monday morning, May 14.
Sanchez further testified that Ricardo Sanchez was not told
about the layoff until May 11 because the Respondent did
not want rumors to be spread. He explained that if Ricardo
Sanchez had been advised of the layoff on May 8, and would
have commenced to make his layoff selections at that time,
this would have necessitated his access to a payroll list
which would have necessitated his requesting the list from
the human resources department. This was not feasible at the
time, according to Fernando Sanchez, because the person
then in charge of human resources was married to a super-
visor, and it was feared that word of a possible layoff might
be leaked in advance and would result in morale problems
among the employees.
Sanchez testified that, unlike prior layoffs,5 supervisors
were not permitted to make the layoff selections because:
[W]e had the concern that the supervisors that were di-
rectly involved in the operation of that particular cell
were going to be a lot more biased on the decision just
by looking around, who was wearing caps or buttons or
whatever for the union. We thought that Ricardo had
enough knowledge to know who performed or not, but
wasn’t as close to the operations—every single oper-
ation. That was basically the reason why we did it that
way.
Sanchez went on to explain that:
[W]e didn’t want the supervisors to be biased because
they knew them—I mean, they knew who was wearing
them, you know. Ricardo was going to be a lot more
unbiased and try to use his judgment as far as perform-
ance. That is the reason.
On Thursday, May 10, according to Sanchez, approxi-
mately 70 to 80 people were wearing some sort of union but-
tons or identification during work. Sanchez was not present
on Friday, and therefore gave no estimate of the number of
employees wearing union identification on that day.
Kent Bouldin is president and chief executive officer of
the Respondent. Bouldin testified that all furniture is made
to order. Generally, closed sales, which reflect delivered
goods, follow written showroom orders within 2 to 3 weeks;
sometimes the range is 2 to 6 weeks if there is a very large
backlog. When the customer purchases the furniture at a
leather center showroom, the customer is given a delivery
date established by a trucking schedule. That, according to
Bouldin, ‘‘is the way we are able to deliver furniture on the
exact day that we quote a customer to when they order the
furniture.’’ When the shipping date approaches, the computer
generates a schedule, and the production employees ‘‘start
work at 7:00 a.m. and we go home when that day’s produc-
tion is completed.’’ Bouldin testified that this ‘‘just in time’’
production method sometimes requires overtime work,
‘‘[a]nd one cell might work 12 hours one day and the next
day it might work six hours.’’
Employee Raphael Hernandez testified that employees do
not know from day to day what the production schedule is
going to be. As soon as the employees complete the day’s
schedule, they clock out; if there is more work to do, the em-
ployees remain until the work is completed. Hernandez testi-
fied the employees would never remain at work when there
was no work to be done.
Bouldin testified that the Respondent had positive cumu-
lative profit throughout 1989 which continued until February
1990. The Respondent experienced an actual loss for Feb-
ruary. More significantly, however, items that the Company
should have written off in earlier months, such as ‘‘inventory
write-downs’’ and accrued vacation pay were not written off
until February, the last month of the fiscal year. The Re-
spondent had peak sales, and commensurate expenses, in
January, and then sales began declining. As expenses did not
decline, this put the Respondent in a very difficult and dete-
riorating cash position in the spring of 1990. The Respondent
instituted a range of cost saving methods: getting rid of ex-
pendable warehouse space and extra trucks, requiring the
showroom personnel to water the showroom plants rather
than have an outside contractor to do this work, and, most
importantly, reducing the staff.
In March, according to Bouldin, the principals ‘‘were feel-
ing pretty good’’ and granted themselves a 25-percent pay
increase. Shortly thereafter that increase was rescinded, and
an additional 25-percent pay decrease was implemented.
At a meeting on April 28, it was decided to lay off the
staff in all areas, including manufacturing, in a relatively eq-
uitable manner. However, towards the end of the meeting,
according to Bouldin, ‘‘Juan Leon talked us out of laying off
in production and transportation, because we looked at those
people as adding more direct value.’’ Bouldin explained that:
The ultimate decision initially was that we lay off in
all areas of the company. Juan [Leon] argued vigor-
ously that these people were valuated [sic] people and
we needed to retain our production level—our manufac-
turing and production level at that staff. So we—he
convinced me that we shouldn’t at that time. That is
correct.
. . . .
[I]f you want to reduce expenses, you should reduce in
areas that are directly affected. Like, if you have one
less salesman, hopefully you will sell as much as if that
salesman was there. You would sell as much. But, in
effect, a production associate, if he is not there, you
make less furniture.
25LEATHER CENTER
6 As noted above, no transportation employees were laid off.
Transportation employees (truckdrivers) were specifically excluded
from the unit requested in the Union’s May 9 representation petition.
7 He did not explain why the layoffs were made on May 14 rather
than May 15.
8 The appointment calendars were not proffered by the Respond-
ent.
Bouldin also believed that some of the employees were not
working to their capacity, and were ‘‘sandbagging quite se-
verely,’’ and that production would not suffer if the less pro-
ductive employees were laid off. However, Juan Leon con-
vinced Bouldin that they should hold off and not do anything
at that time. According to Bouldin, ‘‘It was more of a put
it on hold for further discussion.’’
As a result of the discussions during the meeting of April
28, it was determined that the April 30 layoff would include
sales associates, administrative personnel, some maintenance
personnel, and other support staff, including several produc-
tion support employees, but not the transportation or produc-
tion employees.
Bouldin testified that when the financial figures for April
became available in early May, ‘‘we had continued to lose
money.’’ He further testified that:
We had gotten in our sales figures, and we just weren’t
writing the volume of business that was going to
produce a profit that we thought in May. And so we
decided to go on and finish up the layoff we had start-
ed, and we...decided we would reduce our production
staff and our transportation staff, too.’’6
When asked when that decision was made, Bouldin testified
that he had looked up the date in his calendar within the last
few days prior to the date of his testimony herein, and found
that it was at a partners’ meeting on Tuesday, May 8, as
there is a partners’ meeting every Tuesday.
Bouldin testified that something very significant happened
between the time the layoff decision was made and the time
it was implemented, namely, that on May 9 someone put a
copy of the representation petition on his desk. This prompt-
ed the principals to meet with their attorney later that same
day. Upon advising the attorney that they were preparing to
institute some layoffs, Bouldin testified that the attorney gave
them the following advice:
And, paraphrasing, he said that we were really playing
with fire. I don’t remember his exact words, but he said
it was very dangerous. But on the other hand, that you
should go on and conduct your business as a business-
man.
According to Bouldin, Ricardo Sanchez was not told about
the layoff until Friday, May 11, during the course of another
meeting attended by Bouldin, Fernando Sanchez, Juan Leon,
two vice presidents, and some of the Human resources staff.
Bouldin testified that layoffs are customarily made at the end
of a pay period, and that the pay periods ended on the 1st
and 15th of each month.7 Bouldin further testified that the
Respondent waited as long as it could to advise Ricardo
Sanchez of his mission so that rumors of the layoff would
not be leaked to the employee for fear that false rumors
would create more pain than necessary among them.
Ricardo Sanchez was told to lay off only employees from
the production work force. No layoffs were made at that time
among the transportation employees. Bouldin testified that it
was decided to deviate from the customary way that the se-
lection for layoffs had been made in the past, that is, by the
employee’s immediate supervisor. He testified that:
And in this case [we were] quite afraid, since we had
just talked to our attorney, that we didn’t want to get
tangled up in any union problems by laying people off
according to a union affiliation.
So we chose Ricardo—and this was my idea—to
make the selections, because I know Ricardo to be very
fair, and he is a very ethical person. And I knew that
he would make the selections based on criteria of per-
formance as opposed to someone’s affiliation with the
union.
Ricardo Sanchez was told that he needed to make the selec-
tions that same day, a Friday, so that the paperwork could
be prepared over the weekend by the human resources de-
partment. Bouldin testified that in the absence of any union
activity, the production layoff selections would probably
have been made by the employees’ immediate supervisors.
Bouldin’s affidavit, dated August 1, was taken at the Re-
spondent’s offices, and Bouldin admits that he had access to
his appointment calendar at the time the affidavit was taken.
The affidavit, introduced into evidence, states:
We avoided layoffs in the manufacturing end of op-
erations. Then in reviewing the financial data for the
month of April, 1990, the losses continued. Company
Vice-president Juan Leon, Human Resources Celia
Boynton, Ricrdo Sanchez, Production Manager, Fer-
nando Sanchez, Vice-President of Finance Administra-
tion, and myself met and I informed Boynton and
Sanchez that additional cuts were needed and that they
would have to reduce the manufacturing end by 10 to
15 percent. I told Sanchez to keep the best producers
and not to allow the union to influence his decision in
making the selection for layoff. The meeting took place
on May 11, 1990, after receiving the financial report for
April 1990 on or about May 10, 1990.
I had knowledge of the Union’s filing of a petition
with the National Labor Relations Board on or about
May 9, 1990, when I found a copy of the petition on
my desk.
Bouldin testified that in preparing for his testimony at the
hearing, he was advised by Fernando Sanchez that the meet-
ing occurred on May 8 rather than May 11. To verify the
correct date, both he and Fernando Sanchez reviewed their
calendars which reflected the correct date of the meeting,
and, according to Bouldin, both calendars showed that the
meeting took place on Tuesday, May 8.8
Bouldin’s aforementioned affidavit also states:
The Memorial Day weekend sale generated a lot of or-
ders which required production to work overtime during
the months of June and July 1990 to meet the order re-
quirements. The net loss for the month of June 1990
was $934,000. All the orders that were generated from
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Memorial Day weekend sale have now been com-
pleted. I am in the process of meeting with the associ-
ates and inform [sic] them that we will be working a
40-hour weeks [sic] during the month of August 1990.
Ricardo Sanchez testified that he was called to a meeting
on May 11. Those in attendance were given ‘‘packets of the
economy of the company,’’ consisting of several documents.
Sanchez estimates that the meeting lasted about 2 hours.
Sanchez could not recollect what Bouldin said or what he
said during the course of the meeting; however, he did recall
that Bouldin told him that he was to lay off 10 to 15 percent
of the work force, effective the following Monday, May 14.
After the meeting Celia Boynton, human resources manager,
prepared a printout of all the production employees. Sanchez
called out the names of the employees he selected for layoff,
and Boynton pulled their files.
Sanchez testified that there were six cells and there were
between 26 and 28 employees in each cell. He said that he
considered himself sufficiently familiar with the work of
each of the approximately 200 employees to make the selec-
tions without assistance from any other source, as he spends
90 percent of his time in the production area. He did not
consult with any supervisors or look at any personnel files
prior to selecting the individuals to be laid off. Rather, he
simply selected the employees who, in his opinion, were the
least productive or the most expendable.
Sanchez had a very limited recollection of specific warn-
ings or adverse information contained in the personnel files
of the production employees. The record shows that the em-
ployment records of many employees who were not laid off
were inferior, in terms of absenteeism, warnings, and prior
suspensions, to the comparable records of certain employees
whom Sanchez had selected for layoff. In addition, among
employees who performed the same type of work with the
cell, certain employees with greater seniority were laid off.
Sanchez testified that if he would have been given the
time to review the personnel file of each of the employees,
he would nevertheless have selected the ‘‘majority’’ of those
that he did, in fact, select. However, he acknowledged that,
because of various documents in employees’ personnel files
which were shown to him at the hearing which he had not
previously recalled or had not been made aware of by the
supervisors, he may have selected other individuals.
Sanchez had a computer print-out of the names of all the
production employees. Those with the most seniority were at
the top of the list. He began at the bottom of the list and
worked his way up. He selected the employees for layoff
based upon his evaluation of their productivity, attitude, team
work, and how they followed instructions. Teamwork, or
how the employee worked within his or her cell, was a very
important factor. Sanchez had managed various departments,
and had performed every type of work involved in the pro-
duction process. As production manager he spent 90 percent
of his time on the production floor, and would meet with the
cell managers on a daily basis and discuss production and
personnel problems with them. He spent about 3 hours mak-
ing his layoff selections.
Sanchez testified that when some of the employees were
recalled, he sat down with them and explained where they
need to make improvements. Various employees denied that
Sanchez mentioned anything about their alleged work defi-
ciencies when they were recalled.
Of the twenty-five laid-off employees 19 testified in this
proceeding. Each of them testified that they were active on
behalf of the Union and that they wore union buttons or caps
at work on May 9, 10, and 11. These employees are: Alicia
Alfaro, Enedina Gonzalez, Catalina Perez, Miguel Gonzalez,
Diana Garcia, Carmelo Hernandez, Juan Becerra, Juan
Cabral, Raphael Hernandez, David Salinas, Elizabeth Hague,
Jesus Aranda, Yvonne Acy, Joseph Minero, Thomas Norton,
David Luna, Rolando Morante, Everette Alvarado, and Anto-
nio Olivarez. Additionally, David Salinas testified that Mar-
tin Vargas, who was laid off, wore a union cap and buttons
at work after May 9.
Tom Keane, a union representative, credibly testified that
of the 25 employees who were laid off, only 2 were not
members of the union organizing committee. It is reasonable
to presume, under the circumstances, that all members of the
organizing committee wore union insignia at work.
The record shows that on or about May 1 the production
employees received a seniority raise, apparently based on the
number of years they had been employed by the Respondent.
It appears that the seniority raises generally ranged from 12
to 20 cents per hour. According to Ricardo Sanchez, the em-
ployees had been told sometime during the period between
July and September 1989, when the employees went from a
piece-rate system to an hourly rate, that such a raise could
be expected a year from that period of time. Sanchez ex-
plained that the promised raise was to compensate for the
fact that during July through September 1989, the Respond-
ent changed its conventional production process and com-
menced operating under the cell or department system, and
this impacted adversely on the employees as they began
earning less money under the hourly system than they had
formerly earned under the piece-rate system. Sanchez offered
no explanation of the fact that the seniority raise was granted
some 2 to 4 months in advance of the time the raise had
been promised.
In addition, the record shows that nearly all the production
employees were evaluated and granted merit raises during the
period between April and June. Ricardo Sanchez, who was
manager of one of the cells, testified that he evaluated the
approximately 28 employees on his team and each received
a merit increase, effective May 9. The payroll change notices
show that these employees received merit increases averag-
ing over 50 cents per hour. Apparently the production em-
ployees in the other cells received comparable wage in-
creases, although the record does not reflect the specific
amounts of such increases. The record shows that some 90
employees received merit increases during the month of
May; and of this number, nearly half became effective on
May 8, 9, or 10.
The record shows that two production employees, Iris
Elias and Gilberto Lopez, were hired on May 8, and were
both employed in cell 5 (recliner). While three other employ-
ees from cell 5 were laid off; namely, Antonio Olivarez,
Rolando Morante, and Juan Becerra, the two newly hired
employees were not.
3. The April 30 layoff of Michael Cantu
Michael Cantu began working for the Respondent on Sep-
tember 19, 1987. Since that date and until the date of his lay-
27LEATHER CENTER
off on April 30, 1990, he was employed in the leather de-
partment and performed the job of receiving the leather from
tanneries, measuring and inventorying it, and pulling leather
from inventory which, in turn, would be taken to the produc-
tion cells for the manufacture of furniture. Leather depart-
ment employees were not considered to be a part of the pro-
duction process. Cantu was the most senior employee as-
signed to perform the aforementioned job, and apparently
there was only one more senior employee in the entire de-
partment.
As set forth above, Ricardo Sanchez questioned Cantu
about the Union on about April 17. Sanchez asked Cantu
whether he knew anything about the Union. Cantu said no,
and Sanchez laughed as he walked away. This conversation
occurred the day after Cantu had signed a union authoriza-
tion card. Thereafter, on about April 18, Cantu solicited
some of the leather department employees to sign union au-
thorization cards.
Cantu and other employees in the leather department, con-
sisting of six employees, were unhappy with their supervisor,
Roy Davis, and their leadman, Marco Navarro. According to
Cantu, Supervisor Davis was not receptive to their com-
plaints, and leadman Navarro was lazy and would not per-
form his job. The employees held a group meeting about the
situation and decided to enlist the help of Manufacturing
Vice President Juan Leon and explain the situation to him.
Another employee, Carlos Lara, asked Leon to meet with
them. The employees explained their concerns to Leon, and
Leon said that he would speak to Davis and Navarro.
Shortly after the employees met with Leon, Supervisor
Davis called all the leather department employees into his of-
fice, and asked whether their first little group meeting, prior
to their meeting with Leon, had been about the Union. The
employees said no, and asked him why. Davis then asked
what the employees were talking about during that meeting.
They replied that they were discussing the problems in the
department. Davis then asked about their meeting with Leon,
and the employees told him that the same matters were dis-
cussed with Leon. Davis asked why the employees didn’t
come to him, and the employees replied that they had
brought the matters to his attention, but that he didn’t seem
to listen or to take any action; therefore they went to Leon.
On the morning of April 30, Davis told the leather depart-
ment employees that he had just come from a manager’s
meeting and that he would have to lay two employees off.
He said he didn’t know who they would be, and that he
would have to think about it. He then called Leadman
Navarro into his office, and the employees went back to
work. About 4 p.m. that day, Cantu was called into Davis’
office and was told he was being laid off. Cantu asked him
why, and whether he didn’t work hard enough. Davis agreed
that Cantu worked hard enough, and stated that it was not
his decision to lay Cantu off. Cantu mentioned that he had
more seniority than the other employees, and that there were
new employees who had just started working for the Com-
pany. Davis again replied that he was told whom to lay off,
and said that he was told to keep the new employees.
One other employee was laid off from the leather depart-
ment, an employee whom Cantu was only able to identify by
his first name, Cesario. Cantu testified that in 1990 he re-
ceived a warning for missing work 2 days, and he also re-
ceived a warning about a mistake that he made. The record
shows that the Respondent customarily issues an abundance
of similar warning notices, and the Respondent did not at-
tempt to show that the warnings to Cantu were other than
routine. Cantu was recalled to work on October 17.
Supervisor Davis did not testify in this proceeding, and the
Respondent presented no evidence regarding this matter.
Leon testified, on cross examination, that there were five or
six employees in the leather department, and that he did not
recall whether Cantu was the most senior employee. Accord-
ing to Leon, all the leather department employees, collec-
tively, complained about Davis and Navarro.
C. Analysis and Conclusions
1. The 8(a)(1) violations
I credit the testimony of Diana Garcia and find that on
March 22 Production Manager Ricardo Sanchez summoned
her to his office and asked her if she and her husband were
trying to bring in the Union. While he initially assured her
that there would be no reprisals taken against her for admit-
ting to such union activity, Sanchez then went on to analo-
gize the clandestine activities of a union with the rape of a
little girl, and further remarked that it was possible that the
plant could be closed and people could be without work, and
that many employees may have signed cards for the Union
without knowing what they were signing.
While Sanchez admitted that he interrogated Garcia about
her union activity, he denied making any further statements
about the Union after Garcia replied that she and her hus-
band were being falsely accused of such conduct. I do not
credit Sanchez’ denials, and find that the conversation oc-
curred as related by Garcia. I find that such interrogation and
threat of plant closure is violative of Section 8(a)(1) of the
Act.
I credit the testimony of Gloria Chavez and find that in
late March or early April, Sanchez told her that he knew she
was talking to employees about the Union and that she
should be careful. Such remarks constitute a veiled threat of
possible repercussions against Chavez because of her sus-
pected involvement with the Union, and are violative of Sec-
tion 8(a)(1) of the Act.
I credit the testimony of David Luna and Eli Hague, and
find that on March 24, during a fajita party given by the Re-
spondent, the Respondent’s vice president of manufacturing,
Juan Leon, indicated to Luna that he was aware that Luna
had attended the union meeting that day, and characterized
such activity as ‘‘f—king with the family,’’ and playing
‘‘hardball’’ with the Respondent. Such remarks by Leon that
Luna, as a result of his attendance at the union meeting, was
harming the Respondent and would be dealt with in kind,
would reasonably cause Luna to anticipate unspecified repris-
als for engaging in union activity, and are clearly coercive,
in violation of Section 8(a)(1) of the Act.
Employee Gloria Chavez testified that on April 5, during
her break, as she was soliciting employee Antonio Olivarez
to sign a union authorization card, her acting supervisor, Ste-
ven Gonzalez, approached. Chavez hid the card, and Gon-
zalez said, ‘‘I know you are up to your union tricks again.’’
Chavez replied that she didn’t know what he was talking
about. Olivarez corroborated the testimony of Chavez, and
testified that he considered Gonzalez to be his supervisor. I
credit their testimony.
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Respondent denies that Steven Gonzalez was a super-
visor in the recliner cell on April 5. The evidence shows that
Gonzalez had been a supervisor in another cell (the fantasy
cell), at least until March 6, and issued various disciplinary
warnings to employees. Thereafter, he was transferred to a
position in the receiving department, and sometime thereafter
he was placed in charge of the recliner cell, apparently on
a temporary basis.
Both Garcia and Olivarez testified that they believed that
Steven Gonzalez possessed supervisory authority at the time
he made the statement to them, and the Respondent has pre-
sented no evidence to the contrary. I find that, in fact, Gon-
zalez was their supervisor at the time he made the statement.
Such a statement is coercive in nature as it implies that the
Respondent was aware of Garcia’s union activity and that
such activity was being monitored. By such conduct the Re-
spondent has violated Section 8(a)(1) of the Act.
David Salinas testified that on March 26, several days
after it became known that he had attended the union meet-
ing, he was called into Bouldin’s office and, in the presence
of Juan Leon and Stella Hanna, was told by Bouldin that he
was messing up by becoming involved with the Union.
Bouldin further told him that he was not only jeopardizing
his own job, but also the jobs of the people in his family
who worked for the Respondent. Further, Bouldin told him
that if he was interested in a management position, he would
have to change his attitude.
Leon could not recall this conversation. Stella Hanna did
not testify in this proceeding. Bouldin testified that he did
call Salinas into the office and criticize him for a poor atti-
tude and ‘‘talking badly about the company on a continuing
basis,’’ but that the criticism was not directed toward his
support of the Union. Further, Bouldin denies that he men-
tioned the possibility of a promotion to a managerial position
if Salinas would change his attitude. It is noteworthy that
two witnesses to this conversation, Leon and Hanna, did not
corroborate Bouldin’s testimony, as Hanna was not called as
a witness, and Leon could not remember the meeting. I credit
Salinas’ account of the conversation, and find that Bouldin
threatened him with the possibility of discharge, and, in addi-
tion, held out to him the possibility of a promotion, in an
effort to cause Salinas to cease his support of the Union.
A total of seven employees testified that during the course
of the May 9 union rally in the Respondent’s parking lot, Ri-
cardo Sanchez told the employees that they looked pretty
wearing the caps and buttons they had been given by the
union representatives, but that they would not look so pretty
after they were were no longer working for the Respondent.
I credit the testimony of these employees, and find that
Sanchez made the remarks attributed to him. Such remarks
explicitly convey the message to employees that their support
for the Union may result in their termination, and are viola-
tive of Section 8(a)(1) of the Act.
I credit the testimony of Evonne Acy and Tom Norton,
and find that on or about May 9, the manager of the Alamo
Restaurant, James Gimble, told them that if a union was
voted in the Respondent would close the Alamo and take
away some of the employees’ benefits. Gimble was not
called as a witness by the Respondent. Advising employees
that benefits which they enjoy will be taken from them if
they elect to have union representation constitutes conduct
violative of Section 8(a)(1) of the Act.
Martha Moya attended two employee meetings after the
May 14 layoff. One of the meetings was held on the after-
noon of May 14, and the other was held on May 21. Moya
testified that at the first meeting, Bouldin stated that the em-
ployees had been laid off due to lack of work; he also gave
as a reason for their layoff that they had been causing prob-
lems, and added that they would not be recalled when work
picked up. During the second meeting, according to Moya,
Bouldin told the assembled employees that the people who
had been passing out cards and ‘‘running about with secrets’’
were never going to come back to work.
The complaint does not specifically allege, and the Gen-
eral Counsel apparently does not contend, that the aforemen-
tioned statements should be found to be violative of Section
8(a)(1) of the Act. However, the General Counsel apparently
maintains that Moya’s testimony, if credited, constitutes ex-
plicit evidence of the Respondent’s unlawful motivation in
selecting the employees who were laid off. It seems unlikely
that Bouldin would have uttered these inculpating comments
to a group of employees which apparently included a number
of known union supporters. No other employee corroborated
Moya’s testimony in this regard, and it is significant that em-
ployee Ofelia Solis, who apparently attended the same meet-
ing, testified to other matters but was not questioned about
the alleged remarks of Bouldin. For the foregoing reasons, I
find the record evidence to be insufficient to support a find-
ing that Bouldin made the comments attributed to him by
Moya.
Moya also testified that on May 15, the day following the
layoff, Ricardo Sanchez called her into his office and advised
her of the fact that she would be receiving a merit pay raise.
He also asked her what she was thinking about the Union.
I credit Moya, and find that by such a question Sanchez un-
lawfully interrogated Moya regarding her feeling toward the
Union, in violation of Section 8(a)(1) of the Act.
It is alleged that Maria Leon is an agent of the Respond-
ent, and that certain remarks she made to employee Ofelia
Solis regarding the closing and subsequent reopening of the
Company for the purpose of getting rid of union adherents,
and, also, about keeping a record of union adherents on the
Respondent’s computer, are therefore attributable to the Re-
spondent. Maria Leon is the mother of Juan Leon, one of the
Respondent’s principals. Formerly a supervisor, she became
a rank-and-file employee long before the union activity
began. She worked with the employees in her cell as a seam-
stress performing the same work as other seamstresses, and
the record does not show that she enjoyed any special privi-
leges as a result of her relationship to Juan Leon. Although
she was salaried rather than hourly paid, the record does not
show that her coworkers were aware of this fact. I conclude
that the record evidence is insufficient to show that Maria
Leon was an agent of the Respondent, as a familial relation-
ship, without more, is insufficient to establish that by her re-
marks, Maria Leon was reflecting company policy and
speaking for management. See Sonicraft, Inc., 295 NLRB
766, 770 (1989), enfd. 905 F.2d 146 (7th Cir. 1990);
Foodland, 233 NLRB 708, 713 (1977). Therefore, I shall
dismiss this allegation of the complaint.
Javier Rico, now a supervisor, recanted the statement in
his affidavit, given at the time he was a rank-and-file em-
ployee and active union supporter, to the effect that Ricardo
Sanchez remarked to various union supporters on June 27,
29LEATHER CENTER
shortly before the scheduled election, that they would be
fired if the Union did not win. I do not credit Rico’s testi-
mony, which was clearly unresponsive and evasive, that he
was not certain that Sanchez made the remark. I find that the
credible version of what transpired is reflected in Rico’s affi-
davit, taken prior to Rico’s promotion to a managerial posi-
tion, which specifically identifies Sanchez as the speaker. I
find that such a remark is violative of Section 8(a)(1) of the
Act, as it conveys the message to the employees that their
job tenure is directly related to the outcome of the represen-
tation election.
As alleged in the complaint, the aforementioned conduct
of the Respondent’s officers, managers, and supervisors con-
stitutes unlawful conduct violative of Section 8(a)(1) of the
Act. See Rossmore House, 269 NLRB 1176 (1984); Pennsy
Supply, 295 NLRB 324 (1989); Rockwell International Corp.
v. NLRB, 814 F.2d 1530 (11th Cir. 1987); Goodman Invest-
ment Co., 292 NLRB 340 (1989); DeCasper Corp., 278
NLRB 143 (1986); Koons Ford of Annapolis, 282 NLRB
506 (1986); Maremont Corp., 294 NLRB 11, 19–23 (1989);
Uniontown Hospital Assn., 277 NLRB 1298 (1985).
2. The 8(a)(3) violations
a. The layoff of Michael Cantu (April 30)
There is no contention in this proceeding that the April 30
layoff of some 65 employees was motivated by consider-
ations proscribed by the Act. While virtually all the individ-
uals in this group were administrative employees, several of
them, including Michael Cantu, although not considered to
be production employees, were nevertheless unit employees
fairly encompassed by the unit description in the representa-
tion petition and worked in departments which directly sup-
ported the production process. It is alleged that Cantu was
singled out for discharge because of his union or concerted
activity.
The record evidence shows that each of the six employees
in the leather department were disgruntled with their depart-
ment manager, Davis, and with their leadman, Navarro.
Cantu’s activities in this regard were not exceptional or con-
spicuous, and it appears that he was merely a member of the
group seeking to present collective complaints to manage-
ment. I find that the evidence does not support the General
Counsel’s position that Cantu was selected for discharge be-
cause of such protected concerted activity.
I conclude, however, that the General Counsel has pre-
sented a prima facie case supporting the complaint allegation
that Cantu was selected for layoff because of his union activ-
ity. Regarding the necessary element of employer knowledge,
the evidence shows that the day after Cantu signed a union
card, Production Manager Sanchez asked him if he knew
anything about the Union and laughed after Cantu said no.
Sanchez’ laughter upon Cantu’s denial that he knew anything
about the Union, may be reasonably characterized as an ex-
pression of disbelief. Coupled with the fact that Sanchez did
not supervise Cantu and would therefore, insofar as the
record shows, have no day-to-day contact with him, it may
be reasonably inferred that Sanchez’ question was more than
one of merely passing interest. It is also noteworthy that Su-
pervisor Davis, upon observing that the leather department
employees were holding a group meeting, asked them if the
meeting concerned the Union.
Further, uncontroverted record evidence shows the follow-
ing: that Cantu had more seniority than all but one of the
leather department employees; that he was admittedly a good
worker and, upon being advised of his layoff, Supervisor
Davis told him that there was nothing wrong with his work;
that there were newly hired employees who were not laid
off; and that, contrary to what Davis initially told the assem-
bled employees, namely, that he would be making the layoff
selection, Cantu was subsequently advised by Davis that the
decision had been made by Davis’ superiors rather than by
Davis.
The foregoing prima facie evidence was not contradicted;
Supervisor Davis was not called as a witness to explain the
Respondent’s rationale for selecting Cantu. The Respondent
did not present any evidence on this issue; rather it elected
to rely on the contention that the General Counsel has failed
to show that the Respondent knew or suspected that Cantu
was engaged in union activity.
In addition, the following unlawful conduct of the Re-
spondent, found herein, supports the General Counsel’s
prima facie case: that both Bouldin and Ricardo Sanchez,
prior to April 30, had made threatening remarks to union
supporters to the effect that their jobs were in jeopardy or
that they should be careful; and that 2 weeks after Cantu’s
layoff the Respondent, as found below, unlawfully laid off
25 other employees because of their union activity.
While there is no direct evidence that the Respondent had
knowledge of Cantu’s union activity, I conclude that the
General Counsel’s prima facie case, supported by cir-
cumstantial evidence, is sufficient to establish a reasonable
inference of such knowledge. See Abbey’s Transportation
Services, 284 NLRB 698, 700–701 (1987), enfd. 837 F.2d
575 (2d Cir. 1988); BMD Sportswear Corp., 283 NLRB 142,
143 (1987); Darbar Indian Restaurant, 288 NLRB 545
(1988); Alumbaugh Coal Corp., 247 NLRB 895, 900–901
(1980); Yaohan of California, 280 NLRB 268, 269–270
(1986).
As the Respondent has elected to present no evidence re-
garding its reasons for selecting Cantu for layoff, the General
Counsel’s prima facie case stands unrebutted. I conclude,
therefore, that it has been established that Cantu was selected
for layoff because of his actual or suspected activity on be-
half of the Union, in violation of Section 8(a)(1) and (3) of
the Act. Wright Line, 251 NLRB 1083 (1980), enfd. on other
grounds 662 F2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982).
b. The May 14 layoff
Clearly the Respondent was experiencing serious financial
difficulties because of declining profits; and a related cash
flow problem caused it to be unable to timely pay its most
important suppliers for large quantities of leather which the
Respondent had purchased in anticipation of a continued in-
crease in sales. As a result the Respondent laid off some 65
nonproduction employees on April 30.
It is significant that contemporaneously with this layoff,
the Respondent granted virtually all of its employees a se-
niority raise, and granted about half of its employees a merit
raise, in significant amounts. Given its professed precarious
financial position, the timing of the raises makes no eco-
nomic or business sense, as the record shows that the raises
in late April and early May were neither automatic nor con-
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 There was no evidence presented by the Respondent to show that
it was more cost effective to lay employees off rather than to simply
retain them as employees on an ‘‘as needed’’ basis. Indeed, this is
the admitted reason why the transportation employees (truckdrivers)
who were not included in the petitioned-for collective-bargaining
unit, were not laid off.
sistent with the Respondent’s alleged prior promise to the
employees that they would be given a seniority raise 1 year
after the July to September 1989 period during which time
the Respondent had changed from a piecework to an hourly
method of compensation. Since it may reasonably be con-
cluded that prudent businessmen would not exacerbate an al-
ready difficult situation by granting employees a sizeable
wage increase when faced with serious financial difficulties,
it is further reasonable to presume that the Respondent be-
lieved that the various cost-saving measures it implemented,
particularly the April 30 layoff of a large number of employ-
ees, was sufficient to both resolve the financial problems
and, at the same time, to justify the granting of raises.
It is admitted by the Respondent that at the April 28 meet-
ing the Respondent’s principals made a specific determina-
tion not to lay off any production employees. The reason for
this determination, according to the Respondent, was two-
fold. First, the Respondent wanted to delay any production
layoffs in anticipation of an influx of showroom written
sales. While the evidences shows that the Respondent relies
heavily on its weekend sales volume and that it advertises
sales promotions virtually every weekend, it is also clear that
the Respondent places a special emphasis on its annual 3-day
holiday weekend sales. Since such a sale was scheduled to
occur during the Memorial Day weekend at the end of May,
just two weeks following the May 14 layoff, the Respond-
ent’s decision to effectuate the layoff is inconsistent with its
original determination to retain the employees in anticipation
of the large Memorial Day sale orders.
The second, and related, reason given by the Respondent
for delaying a decision to lay off production employees was
due to the mechanics of the Respondent’s ‘‘just in time’’
production process. The rationale, although only alluded to
by the Respondent and not fully developed by record evi-
dence, is as follows. Because the Respondent maintains no
inventory of furniture and commences to manufacture it only
after an order has been received, and further, because the
production employees are sent home when there is no work
to be done, there simply was no compelling economic need
for a formal layoff. Thus, when the employees are working
they are always cost efficient, as the Respondent emphasized
that it does not write orders or sell furniture at a loss just
to keep employees employed or to get rid of excess inven-
tory; and since the employees are not paid when there is no
work to be done, the Respondent incurs little or no costs by
retaining employees rather than laying them off.9
The Respondent has presented no convincing evidence to
explain, therefore, under the foregoing circumstances, the ne-
cessity of effectuating a formal layoff of employees at a time
when it was anticipated that sales would soon be increasing,
since, in the interim, there would be little or no expense in-
curred by retaining a full complement of employees on its
payroll.
Further, it is clear that a paramount reason for maintaining
a full complement of on-call production employees rather
than laying them off involves the matter of overtime: the
greater the number of employees available to perform the
work during the regular workday, the fewer overtime hours
needed to produce the furniture. As overtime is clearly less
cost-effective than regular or straight time pay, it is advan-
tageous to minimize overtime. While the Respondent’s ‘‘just
in time’’ production method has regularly necessitated an ex-
tensive number of overtime hours, it is significant that the
second and third greatest number of overtime hours during
the 16-month period reflected in the record were in June and
July 1990, which were necessitated by the tremendously suc-
cessful Memorial Day sale. Under the circumstances, it is
clear that had the Respondent not laid off the 25 production
employees in mid-May, the overtime hours for June and July
would have decreased proportionally, with concomitant cost
savings to the Respondent.
The Respondent argues in its brief that the laid-off em-
ployees were not immediately recalled after the highly suc-
cessful Memorial Day sale because the sales volume for sev-
eral specific styles of furniture, rather than for a wide range
of furniture, exceeded all expectations, and that the Respond-
ent simply did not have a sufficient quantity of those particu-
lar patterns, which are overlaid on the leather hides prior to
cutting, to facilitate the production process. Thus, according
to the Respondent, since the first step in the manufacturing
process is the cutting of the hides from the patterns, this bot-
tleneck delayed the entire process; accordingly, under these
circumstances, a larger complement of employees would not
have been able to decrease the amount of overtime.
The record shows that the only reference to a limited sup-
ply of patterns was made by Fernando Sanchez who men-
tioned, in passing, that the orders for a particular style were
so great that the Respondent ‘‘didn’t have patterns to cut the
hides with.’’ Respondent’s counsel did not pursue this matter
or ask Sanchez how this effected the number of overtime
hours. And Sanchez was not asked, nor did he explain, that
a limited supply of patterns had anything to do with the Re-
spondent’s failure to recall the employees. Rather, imme-
diately following his aforementioned testimony about the
limited supply of patterns, Sanchez was asked the following
question by Respondent’s counsel:
Q. If you were so pressed to get the product out,
though, why did you not call—or did you call back any
of these employees you had just laid off.
Sanchez answered:
No. Because we didn’t think that sales were going
to be up again, and this was something that we were
going to get through in two or three weeks. There was
no need for that. It took us longer, though, than antici-
pated because of the mix.
Thus, Sanchez’ testimony does not support the Respondent’s
argument.
In fact, the 2 or 3 weeks catch-up period mentioned by
Sanchez stretched into months, as the record shows that sub-
stantial amounts of overtime were worked in the months
thereafter. Indeed, although Bouldin’s affidavit, dated August
1, states that he was in the process of meeting with the em-
ployees and informing them ‘‘that we will be working a 40-
hour weeks [sic] in the month of August,’’ the August and
September overtime hours show that this was not the case.
31LEATHER CENTER
A significant factual issue is the date on which the deci-
sion to lay off the employees was made. Both Fernando
Sanchez and Kent Bouldin testified that the decision was
made during the course of a meeting on May 8, the day be-
fore the May 9 union rally in the parking lot. However, the
pertinent part of Bouldin’s affidavit, quoted above, is very
clear and unambiguous, and establishes that the meeting in
question was held on May 11 rather than May 8. On being
directly confronted with the apparent discrepancy between
his testimony and his affidavit, Bouldin stated that the May
8 date was correct as he had reviewed both his appointment
calendar and the appointment calendar of Fernando Sanchez
shortly prior to giving testimony. Significantly, however, the
Respondent did not introduce either appointment calendar
into evidence to corroborate Bouldin’s asserted basis for es-
tablishing the true date of the meeting. Under these cir-
cumstances, it is reasonable to infer that, contrary to the tes-
timony of Bouldlin and Fernando Sanchez, the claimed ap-
pointment calendars would establish that the layoff decision
was made subsequent to, rather than before, the union rally
and the filing of the representation petition. Town & Country
LP Gas Service Co., 255 NLRB 1149, 1151 (1981); Master
Security Services, 270 NLRB 543, 552 (1984).
Further, it is significant that Ricardo Sanchez testified that
the meeting he attended on May 11 lasted approximately 2
hours, that he was given financial documents during the
meeting, and that he was unable to recall any details. Had
the decision been previously made on May 8, and had the
meeting on May 11 been held for the limited purpose of ad-
vising Ricardo Sanchez to commence selecting the employ-
ees for layoff, as the Respondent contends, there would have
been no necessity for a 2-hour meeting.
I conclude from the foregoing that the meeting occurred
on May 11, as specified in Bouldin’s affidavit, and thus that
the decision to lay off the employees was made 2 days after,
rather than 1 day before, the union rally and the filing of the
representation petition. This sequence of events, coupled with
the finding that the Respondent has endeavored to conceal
the date of the layoff decision, suggests that the layoff was
motivated by unlawful considerations.
Is is apparent that the Respondent, in order to give some
plausibility to its contention that the layoff decision was
made on May 8, was placed in the awkward position of for-
mulating an explanation to account for the fact that Ricardo
Sanchez was given a very limited amount of time to com-
mence making his layoff selections. The resultant scenario
advanced by the Respondent is, on its face, ludicrous. Thus,
the Respondent asserts, it was feared that should Ricardo
Sanchez, on May 8, ask the human resources department for
a computer printout of the names and employee numbers of
the production employees, this would somehow alert certain
human resources personnel to the likelihood that a produc-
tion layoff was imminent; and further, that the word would
be spread from the human resources department to the em-
ployees by way of the husband of one of the human re-
sources persons, a production supervisor, who would have
been told by his wife that Ricardo Sanchez had requested
such a list.
This contrived scenario defies credulity, and has as its
premise that the only conceivable reason for a production
manager to request a current list of production employees
under his ultimate supervision and control would be for pur-
poses of implementing a layoff. Clearly, there are a variety
of readily apparent reasons why a production manager should
be able to request such a list without arousing suspicion, and
the Respondent has failed to show that its methods of super-
vision or administration were such that furnishing a list of
production employees to the production manager would be
tantamount to announcing that a layoff was imminent. Nor
was it even necessary for Ricardo Sanchez to request such
a list, as any of the Respondent’s principals could have done
so.
The Respondent maintains that, contrary to prior situa-
tions, department supervisors or managers were not permitted
to make the layoff selections because Sanchez was consid-
ered to be disinterested and evenhanded, and therefore less
biased against employees who may have demonstrated sup-
port for the Union. A more probable explanation, however,
advanced by the General Counsel, is that Sanchez was in-
structed to lay off the staunchest union adherents because the
supervisors, if permitted to make the selections, would have
tended to select the least productive employees rather than
the most vocal union supporters.
Thus, the Respondent has presented no evidence to support
its contention that the supervisors harbored any bias or ani-
mosity toward known union adherents on their teams. Nor
has the Respondent advanced a rationale for believing that
supervisors would fail to heed specific instructions to lay off
the least efficient employees and retain the most productive,
regardless of their union sympathies. On the other hand, Ri-
cardo Sanchez has clearly exhibited a strong bias against
union supporters as exemplified by his utterances in the park-
ing lot on May 9, and his unlawful interrogation of Diana
Garcia during which he constructed an analogy between rape
and clandestine union activity. Further, the evidence shows
that Sanchez was unerring in his selection of ostensible
union supporters for layoff. Each of the 19 laid-off employ-
ees who testified in this proceeding said that they wore caps
and buttons at work during the 2 days between the union
rally and their discharge; all but two of them, according to
the credible testimony of Union Representative Tom Keane,
were on the union organizing committee; and the Respondent
has not demonstrated by credible evidence that any of the
laid off employees who did not testify in this proceeding
were, in fact, opposed to the union or did not wear a union
cap or buttons at work during the relevant time period. Given
the foregoing facts, I am convinced that Sanchez’ selections
were influenced by the employees’ ostensible support for the
Union, and that this was the Respondent’s motivation for di-
recting Sanchez, rather than the various department super-
visors, to make the layoff selections.
While the record evidence does not establish with any cer-
tainty the number of employees who were wearing union
caps or buttons during the 2 working days between the union
rally and the layoff, it appears that as many as 80 to 100 of
the total employee complement of about 200 employees wore
them on the day of the rally, and thereafter the number de-
clined. Assuming the reliability of the estimate given by em-
ployee Juana Rodriguez, a witness called by the Respondent,
that approximately 40 employees were wearing union buttons
or caps on Friday, May 11, and, given the fact that 25 of
them were laid off on the morning of the following workday,
Monday, May 14, the message to the remaining employees
was unmistakable: Ricardo Sanchez’ threat during the May
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 union rally to the effect that employees who elected to
wear union insignia would be fired, had, in fact, come to
pass.
Following the General Counsel’s presentation of a prima
facie showing that the Respondent’s May 14 layoff of 25
production employees was discriminatorily motivated, it is
incumbent upon the Respondent to establish that it would
have laid off the employees for lawful business reasons. Lear
Siegler, Inc., 295 NLRB 857 (1989); Wright Line, supra;
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). I find that the General Counsel has clearly made the
requisite showing. I further find that the Respondent has
failed to carry its burden of proof, as the evidence it has pre-
sented and the arguments it has advanced do not withstand
scrutiny.
Accordingly, for the reasons set forth above, I find that the
May 14 layoff of the production employees was not moti-
vated by valid and lawful economic considerations, as con-
tended by the Respondent; rather, as alleged in the com-
plaint, I find that the Respondent implemented the layoff in
order to rid itself of employees who demonstrated that they
were union adherents. By such conduct, the Respondent has
violated Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(1)of the Act
by interrogating employees regarding their union activity, by
threatening employees with discharge, loss of benefits, or
other reprisals because of their union activity, and by sug-
gesting that an employee would receive a promotion if he
discontinued his union activity.
4. The Respondent has violated Section 8(a)(3) and (1) of
the Act by laying off employee Michael Cantu on April 30,
1990, and by laying off 25 employees on May 14, 1990.
THE REMEDY
Having found that the Respondent has violated Section
8(a)(1) and (3) of the Act, I recommend that it be required
to cease and desist therefrom and from in any other manner
interfering with, restraining or coercing its employees in the
exercise of their rights under Section 7 of the Act. Moreover,
the Respondent shall be required to post an appropriate no-
tice, in both English and Spanish, attached as ‘‘Appendix.’’
Having found that the Respondent unlawfully discharged
its employees named in the complaint, I recommend that it
offer the employees named herein immediate and full em-
ployment, without prejudice to their seniority or other rights
and privileges previously enjoyed, and make them whole for
any loss of earnings and benefits they may have suffered by
reason of the Respondent’s discrimination against them.
Backpay is to be computed in accordance with the Board’s
decision in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]