Lou Taylor, Inc.

National Labor Relations Board - Board Decisions

Nov 19, 1976

226 N.L.R.B. 1024 (N.L.R.B. 1976)

1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lou Taylor, Inc. and Mr. T., Inc . and International
Leather Goods , Plastics & Novelty Workers' Union,
AFL-CIO and Angel Rodriguez . Cases 12-CA-
6724, 12-RC-4732, and 12-CA-6745
November 19, 1976
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On June 24, 1976, Administrative Law Judge Well-
ington A. Gillis issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the Charging Parties filed
exceptions, a supporting brief, and an answering
brief to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge except
as modified herein.'
While we find no basis for disturbing the Adminis-
trative Law Judge's finding that the General Counsel
has failed to sustain that the layoff of Angel Rodri-
guez on April 3, 1975, violated Section 8(a)(3) of the
Act, we find that the Employer's subsequent refusal
to recall him did.
Angel Rodriguez acted as a union observer during
the election held on December 18, 1974. Three and
one-half months later, he was laid off from his job as
a cutter's assistant, as part of a series of layoffs ap-
parently necessitated by declining business and a
shortage of materials. Within 3 months, when busi-
ness conditions improved, Rodriguez was perma-
nently replaced.
The reason Respondent gave for selecting Rodri-
guez for layoff over a less senior employee in his de-
partment and classification was that he was partially
handicapped, having only 2-1/2 fingers on his right
hand. The Administrative Law Judge credited this
explanation since, although this defect did not affect
Rodriguez in the performance of his regular job, the
conditions during the layoff would have required
him to work at other jobs at which his handicap
i We adopt the Administrative Law Judge's finding that Respondent's
announcing certain benefits on the day before the election herein violated
Sec 8(a)(1) of the Act The actual granting of such benefits similarly vio-
lated Sec 8 (a)(1) and we need not pass on whether , as found by the Admin-
istrative Law Judge, it also violated Sec 8(a)(3)
would have been a hindrance. But this very explana-
tion negates any claim that Rodriguez would have
been less satisfactory an employee than before the
layoff once the layoff ended and the situation re-
turned to normal.
The Respondent alleges that it has no recall policy.
However, there is uncontradicted testimony that on
the day Rodriguez and other workers were laid off a
letter was read to the workers, implying that once the
shortage of materials was corrected a recall of the
workers would begin. Specifically, the letter stated
that the layoffs were necessitated due to a lack of
materials, and that the Employer hoped to correct
this situation within 2 to 3 weeks. And in a context
such as the one here, where nearly one-third of the
entire work force was laid off, we find it to be most
unlikely that when its economic position improved
the Employer would not look first for workers with
experience.
This would seem particularly applicable to Rodri-
guez. As conceded by the Employer, he is an excel-
lent worker with 4-1/2 years' experience. By filing
the instant charge within 2 weeks after being laid off,
he manifested his continued interest in reinstate-
ment. Nonetheless, he was replaced thereafter with a
worker having no prior experience in the business.
Failure to recall a worker such as Rodriguez, in
view of the circumstances described above, is almost
inexplicable unless motivated by Respondent's oppo-
sition to Rodriguez' exercise of his statutory rights.
Our dissenting colleague to the contrary notwith-
standing, we do not base our conclusion that Re-
spondent's motive was discriminatory on any pre-
scription as to whom Respondent "should want" to
hire, a phrase of our colleague's own making. The
inference we have drawn in this regard is based rath-
er on our application of normal industrial experience
and commonsense, coupled with Respondent's un-
disputed knowledge of Rodriguez' union activities.'
Our dissenting colleague also expresses surprise
that Respondent could have refrained from taking
action against Rodriguez because of his union activi-
ties until an economic layoff presented the opportu-
nity to refuse to reinstate him, assuming that Re-
spondent had the inclination to take retaliatory
action. We, on the contrary, are not surprised at all.
That an employer chooses less than the most blatant
methods of discriminatory retaliation has never been
considered adequate reason to doubt that it commit-
ted a more insidious violation which otherwise ap-
pears from the evidence. We do not find, as our col-
2 We agree with our colleague that the Board should not substitute its
business judgment for that of a respondent , and we are constantly on guard
against doing so We believe, however, that our colleague has violated this
stricture in his speculation about Respondent 's possible concern with what
to do about Rodriguez in case of another business downturn and layoff.
226 NLRB No. 137
LOU TAYLOR, INC 1025
league insists , that the "justifiable layoff [changed]
into an illegal refusal to recall." We only find that the
refusal to recall, which appears to us prima facie to
have been discriminatorily motivated, does not lose
its unlawfulness because an economic layoff inter-
vened. Accordingly, we find that the refusal to recall
Angel Rodriguez violated Section 8(a)(3) and (1) of
the Act.
THE REMEDY
It having been found that Respondent refused to
recall Angel Rodriguez, it is recommended that the
Respondent be ordered to offer him full and immedi-
ate reinstatement to his former position, or, if this
position no longer exists, to a substantially equiva-
lent position without prejudice to his seniority and
other rights and privileges, and to make him whole
for any loss of earnings he may have suffered from
the date he was replaced to the date of Respondent's
offer of reinstatement. Backpay shall be computed in
accordance with the formula in F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest thereon
computed in the manner and amount prescribed in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Lou
Taylor, Inc. and Mr. T., Inc., Hialeah, Florida, its
officers, agents , successors, and assigns, shall:
1. Cease and desist from:
(a) In any unlawful manner announcing and
granting paid holiday employee benefits.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights under Section 7 of the Act.
(c) Discouraging membership in or activities on
behalf of the Union, or in any other labor organiza-
tion, by refusing to recall laid-off employees or other-
wise discriminating against them in any manner, in
regard to their hire or tenure of employment or any
term or condition of employment because of their
union acitvity.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Angel Rodriguez immediate and full
reinstatement to his former job or, if such job no
longer exists , to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earn-
ings he may have suffered, in the manner set forth in
the section of this Decision, Order, and Direction of
Second Election entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at both its plants in Hialeah, Florida, cop-
ies of the attached notice marked "Appendix." J Cop-
ies of said notice, on forms provided by the Regional
Director for Region 12, after being duly signed by an
authorized representative, shall be posted by it imme-
diately upon receipt thereof, in conspicuous places,
including all places where notices to employees are
customarily posted, and be maintained by it for at
least 60 consecutive days thereafter. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
[Direction of Second Election omitted from publi-
cation.] °
MEMBER WALTHER, concurring in part and dissenting
in part:
I disagree with my colleagues' conclusion that Re-
spondent violated Section 8(a)(3) and (1) of the Act
in its failure to recall Angel Rodriguez from layoff
status. Accordingly, I dissent on that issue.'
The record reveals that during the period March-
April 1975 Respondent, for economic reasons, laid
off Rodriguez and 109 other employees, or one-third
of its work force, in three separate layoffs. Rodri-
quez, who had worked for Respondent for 4-1/2
years, was in the third group laid off. Thereafter,
when Respondent's business improved, in June-July
1975, Respondent did not recall Rodriguez but hired
another employee in his place.
Contrary to the contentions of the Charging Par-
ties, my colleagues first find that Rodriguez' initial
layoff was lawful because Rodriguez' disability-
having only 2-1/2 fingers on his right hand-is a
credible explanation for his inclusion in an economic
layoff. In ordinary circumstances, Rodriguez could
3In the event that 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 "
[Excelsior footnote omitted from publication
5 1 concur in my colleagues' adoption of the Administrative Law Judge's
other findings
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
perform his work satisfactorily, but he could not do
as many jobs as other employees when economic rea-
sons forced the overlapping of jobs.6 However, my
colleagues conclude that, after Respondent's eco-
nomic situation stablilized in June-July 1975 there
was no reason not to recall Rodriguez to his former
job, and therefore the failure to recall Rodriguez is
"almost inexplicable" absent union animus. Such
ipse dixit reasoning does not supply the required evi-
dence of discriminatory motivation and is no basis
upon which to find a violation of the Act.
While my colleagues are finding that the refusal to
recall Rodriguez was based on his union activities,
Respondent's knowledge of such activities was limit-
ed to his participation as a union observer in the De-
cember 1974 union election. However, Rodriguez
was not laid off until the third group of layoffs, all
totaling 110 employees, all of which were admittedly
effected for legitimate reasons. Respondent knew of
Rodriguez' union activity, such as it was, at that
time , and yet my colleagues have'found no violation
in his layoff. What, then, has changed this justifiable
layoff into an illegal refusal to recall? My colleagues
have not supplied an adequate answer in their deci-
sion.
While they mention it in passing, my colleagues do
not weigh heavily enough the fact that Respondent
admittedly did not have a recall policy. In fact, Re-
spondent recalled employees as it saw fit. While my
colleagues note that Respondent announced hopes to
rehire the laid-off employees, we do not know how
many were finally recalled. Moreover, Respondent
was not obligated to fulfill this promise to recall
which, in any event, spoke only of hopes of returning
employees to work in 2 to 3 weeks. Rodriguez' re-
placement, moreover, was not hired until some 2
months after the layoff. Perhaps Respondent was
"puffing" on its promise to rehire the laid-off em-
ployees, and while my colleagues find that, when its
operations normalized, Respondent should have
wanted to hire an experienced worker like Rodriguez
instead of a new employee, I would remind my col-
leagues that it is not their proper concern who Re-
spondent "should want" to hire. Besides my col-
leagues fail to take into consideration Rodriguez'
unfortunate disability. Thus, in the event of another
downturn in business, and possible layoff, Respon-
dent might have been faced with the same problem
as before, i.e., a relative lack of mobility in such a
situation on Rodriguez' part, and, therefore, Respon-
dent might well have wished not to enter this thicket
again by not recalling Rodriguez when its business
improved.
In sum , in light of Rodriguez' relatively minor
union activity as known to Respondent, the fact that
no other union adherent was allegedly discriminated
against , all the circumstances surrounding the origi-
nal layoff, and the other factors on the refusal to
recall noted above, I find that the General Counsel
has failed to adduce a preponderance of evidence of
discriminatory treatment. Accordingly, I would dis-
miss this allegation of the complaint.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT announce or grant paid holiday
benefits at a time or in a manner so as to dis-
courage employees from assisting International
Leather Goods, Plastics & Novelty Workers'
Union, AFL-CIO, or any other labor organiza-
tion, or from becoming or remaining a member
of that organization, or any other labor organi-
zation.
WE WILL NOT refuse to recall, or otherwise dis-
criminate against, our employees because of
their union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form, join, or assist any labor organization, and
to bargain collectively through representatives
of their own choosing and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or
to refrain from any or all such activities.
WE WILL offer Angel Rodriguez immediate
and full reinstatement to his former job, or if
that job no longer exists, to a substantially
equivalent job, without prejudice to his seniority
or other rights and privileges, and WE WILL make
him whole for any loss of earnings he may have
suffered because of our discrimination against
him.
All our employees are free to become, remain,
or to refrain from becoming or remaining, mem-
bers of International Leather Goods, Plastics &
Novelty Workers' Union, AFL-CIO, or any
other labor organization.
6 Contrary to the Administrative Law Judge, the record does not show
that Rodriguez himself admitted any incapacity Lou TAYLOR, INC. AND MR. T, INC.
LOU TAYLOR, INC 1027
DECISION
STATEMENT OF THE CASE
"considered along with the consistency and inherent prob-
ability of testimony" ( Universal Camera Corp. v. N.L.R.B.,
340 U.S. 474, 496 (1951)) I make the following:
WELLINGTON A. GILLIS, Administrative Law Judge: Upon
a charge filed on April 4, 1975, and amended on June 19,
1975, in Case 12-CA-6724, by International Leather
Goods, Plastics & Novelty Workers' Union, AFL-CIO,
herein referred to as the Union, and upon a charge filed on
April 16, 1975, in Case 12-CA-6745 by Angel Rodriguez,
an individual, the General Counsel for the National Labor
Relations Board, hereinafter referred to as the Board, is-
sued a consolidated complaint on August 15, 1975, against
Lou Taylor, Inc., and Mr T, Inc., hereinafter referred to
as the Respondent or the Employer, alleging violations of
Sections 8(a)(1) and (3) and 2(6) and (7) of the National
Labor Relations Act, as amended (61 Stat. 136), hereinaf-
ter referred to as the Act. A timely answer to the consoli-
dated complaint was subsequently filed by the Respondent
wherein it denied the commission of any unfair labor prac-
tices.
In Case 12-RC-4732, pursuant to a Decision and Direc-
tion of Election issued by the Regional Director on No-
vember 19, 1974, an election was held on December 18,
1974, among the production and maintenance employees
employed by the Employer at its Hialeah, Florida, plants.)
Thereafter, the Petitioner filed timely objections to elec-
tion. Subsequently, on August 25, 1975, after having con-
ducted an investigation of the objections, the Regional Di-
rector issued a second supplemental decision on objections
to election. In his decision, the Regional Director found
that the bulk of the Petitioner's objections were without
merit.2 Since the matters contained in Objections I(c) and
VI were also encompassed in the unfair labor practice
complaint, the Regional Director concluded that the issues
raised by these two objections could best be resolved after
a hearing. The Regional Director ordered that a hearing be
held and that it be consolidated with the unfair labor prac-
tice hearing in Cases 12-CA-6724 and 12-CA-6745, for
the purpose of hearing, ruling, and issuance of a decision
by an Administrative Law Judge, and that thereafter Case
12-RC-4732 be transferred to and continued before the
Board in Washington, D.C
Pursuant to said order consolidating cases for hearing, a
hearing on the consolidated complaint, as amended at the
hearing, and on other representation matters alluded to
above in Case 12-RC-4732, was held in Coral Gables,
Florida. All parties were represented by counsel and were
afforded full opportunity to examine and cross-examine
witnesses, to introduce evidence pertinent to the issues, and
to engage in oral argument. Subsequent to the close of
hearing, a timely brief was submitted by counsel for Re-
spondent.
Upon the entire record in this case, and based upon my
observation of the witnesses, and their demeanor on the
witness stand, and upon substantial, reliable evidence
1 The tally of ballots issued by the Regional Director revealed that the
Petitioner failed to receive a majority of the votes cast
2 Specifically the Regional Director overruled Petitioner's Objections 1(a),
(b), (d), (e), (f), and (g), II, III, IV, V, VII, and VIII
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Lou Taylor, Inc., is a Florida corporation with an office
and place of business located in Hialeah, Florida, where it
is engaged in the business of manufacturing ladies' hand-
bags. During the 12-month period immediately preceding
the issuance of complaint, Lou Taylor, Inc., shipped goods
and materials from its Hialeah, Florida, business valued in
excess of $50,000 directly to points located outside the
State of Florida.
Mr. T., Inc., is a wholly owned subsidiary of Lou Taylor,
Inc., and is a Florida corporation with an office and place
of business located in Hialeah, Florida, where it is engaged
in the manufacture of ladies' handbags. Lou Taylor, Inc.,
and Mr. T., Inc., are affiliated businesses with common
offices, ownership, directors, and operators, and constitute
a single-integrated business enterprise, with said directors
formulating and administrating a common labor policy for
the employees of both companies.
The parties admit, and I find, that Lou Taylor, Inc., and
Mr. T., Inc., is an employer within the meaning of Section
2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The parties admit , and I find , that the International
Leather Goods , Plastics and Novelty Workers' Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES AND CONDUCT
AFFECTING RESULTS OF ELECTION
A. The Issues
I Whether, on occasions between October 4 and De-
cember 18, 1974, the Respondent's supervisors engaged in
surveillance of its employees' union activities by standing
at entrances to its two plants while the Union was attempt-
ing to pass out leaflets as the employees left work, in viola-
tion of Section 8(a)(1) of the Act .3
2. Whether, in announcing to its employees on Decem-
ber 17, 1974, the day before the election, that there would
be a Christmas party starting at noon on December 24, and
that they would be paid for the full day, the Respondent
violated Section 8(a)(1) of the Act, and whether, in subse-
J The Petitioner's Objection VI, while limited to this time period, is broad-
er than the complaint counterpart and reads as follows
VI That on numerous occasions at times material the Union distrib-
uted leaflets outside the Employer's plant to workers On numerous
occasions, the Employer kept these distributions under close observa-
tion, which included noting those workers who took copies of the leaf-
lets or spoke with the Union On numberous other occasions. Mr Lou
Taylor or his son Evan harassed and closely followed the union repre-
sentatives during the distribution, preventing workers from receiving
the leaflets. etc
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quently granting its employees a half day's paid holiday
while they attended the Christmas party, the Respondent
violated Section 8(a)(3) of the Act.4
3. Whether, in terminating Angel Rodriguez on April 3,
1975, the Respondent did so because of his union activity
in violation of Section 8(a)(3) of the Act.
B. The Facts
1. Alleged surveillance
The Respondent operates two plants, one called Lou
Taylor and referred to as the "big" plant located at 1795
West Eighth Avenue, the other called Mr. T. located di-
rectly across the street at 1790 Eighth Avenue. The offices
serving both Companies are located adjacent to the Mr. T.
plant. The street separating the two plants is a major ar-
tery, lined with other factories and highly industrialized.
Each of Respondent's plants has one employee entrance
located directly across the street from each other, each en-
trance used by the employees of the respective plants in
entering and leaving. Directly outside each plant entrance,
between each plant and the street, there being no side-
walks, there is limited parking space for employees and
plant officials alike, where cars are parked each workday
on a first-come first-served basis two and three deep. Quit-
ting time for the 300 employees of both plants is 4 p.m.,
which, coupled with the fact that all the other factories
empty at or about the same time, daily causes a "complete-
ly chaotic" 15-minute traffic jam in front of the plants at
this time.
Respondent's officials include Lou Taylor, president and
coowner with Sam Edelson, his son, Evan Taylor, manager
of Mr. T., Angel Lapadula, superintendent of both plants,
Domingo Mazon, assistant to Lapadula at the Lou Taylor
plant, and Saul Forman, who served in the same superviso-
ry capacity at Mr. T.5
Credible record evidence indicates that the work duties
of these officials require them to frequently cross the street
from one building to the other during the course of the
workday and at quitting time. Because plant officials nor-
mally arrive early and park closest to the buildings, on
those occasions when they leave at the 4 p.m. quitting time,
they, along with employees, frequently are required to wait
in the parking lots for their cars to become unblocked.
Over a period of many years, it has been customary for
Lapadula daily to station himself by the timeclock just in-
side the plant door to check out employees as they
4 The Petitioner's Objection I(c), of necessity, alludes only to the preelec-
tion announcement and not to the postelec tion implementation as objec-
tionable conduct, but is broader than its unfair labor practice counterpart,
in that it alleges as objectionable the announcement of a paid Christmas Day
as well Objection I(c) reads as follows
I On December 17, 1974, at approximately 11 a in , the Employer
held a captive-audience meeting, during working hours and on the
plant premises , and made the following inaccurate threatening and
coercive remarks
(c) That a victory party would be held on the morning of December
24, and that everyone would quit working at noon and be paid for the
entire day, as well as for Christmas Day, December 25
5 Forman passed away prior to the hearing in this matter
punched out at 4 p.m. Evan Taylor, before leaving a few
minutes after 4 p.m., follows the same practice with respect
to the 75 employees in the Mr. T. plant.
Commencing in May 1974, and on various occasions be-
tween October 4, 1974, and the election on December 18,
1974, the time period involved herein as to both the alleged
unfair labor practices and the objections, the Union en-
gaged in a campaign to organize the employees of Respon-
dent. From time to time during this penod, Union Organiz-
er Pedro Betancourt, frequently accompanied by fellow
organizer David Martin and occasionally Dominick De-
Benedetto, stationed themselves in front of the plant en-
trances, often handing out union leaflets to employees. The
union organizers had 3 yards or less on either side between
the street and the company property on which to stand
while passing out literature. The union people would nor-
mally arrive around 3:50 p.m., just before quitting time,
and leave around 4:15 p.m., after most of the employees
had departed. It is undisputed that, not infrequently during
this period, at times when the union people were so en-
gaged, company officials were also present, either crossing
from one plant to the other, or waiting for their cars to
become unblocked. The question presented is whether, as
alleged by the General Counsel and the Petitioner, at any
time during this period, any of the plant officials engaged
in unlawful surveillance or objectionable conduct.
In this regard, Rodriguez testified that around the first of
December he saw Lapadula looking from the inside of the
door towards the outside watching the leaders of the Union
distributing propaganda. Employee Silvia Trimino testified
that on several occasions she saw Lapadula and Mazon
outside the exit door observing the people from the Union.
Employee Edilia Labrada testified that on two occasions
toward the end of October she saw Lapadula and Mazon
standing outside the door observing the union representa-
tives and the employees as they were leaving. She also testi-
fied that on an occasion in the middle of November she
saw Lou Taylor and Evan Taylor standing outside the door
watching the employees as they were leaving. Employee
Alida Cardonne testified that on two occasions she saw
Lapadula outside the door watching the union organizers
and the employees who were leaving. She also saw Mazon
on an occasion standing outside the factory by the door
looking at the employees.
Apart from this testimony that on occasion one or more
of the company officials were "watching" or "observing"
the union organizers, Betancourt testified as to specific im-
proper conduct by Evan Taylor. Betancourt, who, unlike
the employee witnesses, testified that company officials
were present "at all moments," testified that on one occa-
sion in November, while he was attempting to give a piece
of literature to those inside a departing automobile, Evan
Taylor, who was by his side, pushed him aside and stuck
both his hands inside the automobile, trying to retrieve the
literature. Betancourt further testified that Evan Taylor al-
ways stood by his side impeding his handing out propa-
ganda, and that, when he walked, Evan Taylor walked with
him. Evan Taylor denied emphatically that he ever inter-
fered with the distribution of leaflets by the union organiz-
ers, that he ever pushed a union organizer, or that he ever
grabbed literature away from an employee.
LOU TAYLOR, INC
I was not impressed with the demeanor of Betancourt as
he gave his testimony. There is no question in my mind but
that he overstated the "surveillance " situation generally; he
was not , with one exception , corroborated in this regard by
any other witness, and he was less than candid while testi-
fying as to Evan Taylor's conduct.6 On the other hand, I
found Evan Taylor, whom I credit generally, to be a most
forthright witness. Thus, notwithstanding corroboration by
the alleged discriminatee , Rodriguez, as to the alleged au-
tomobile incident, and by Cardonne, whom I found not
reliable , as to the "impeding" allegation , I do not credit
Betancourt on these two matters. Rather, I find that such
conduct did not occur.
The company officials freely admitted being present on
occasion at the entrances to the two plants, in the parking
lots, or walking between the plants when the union organ-
izers were present , and seeing them handing out literature.
Evan Taylor testified that on occasion , while waiting out-
side , he conversed with his father , with employees, and
even with the organizer himself when initiated by the latter.
They all testified, however, and credibly I find, that they
never remained outside for the purpose of observing the
organizers or the employees.
There is no credible evidence that would indicate that
any of the officials were doing anything other than what
they would normally do at that time of day were there no
union distribution, or that, in occasionally being outside
during the campaigning, they ever engaged in close obser-
vation , note taking , or other conduct which might be con-
sidered objectionable . Under these circumstances , quitting
time on company property, they had a right to be there,
and, as Evan Taylor put it when asked by counsel how he
happened to be in a position to notice the presence of the
organizers , "there is no way to avoid it. They are right out
front as we get out."
I find that the General Counsel has failed to prove its
complaint allegation that the Respondent engaged in un-
lawful surveillance of employee union activity in violation
of Section 8(a)(1).7
2. Christmas party
Around 11 a.m., on December 17, 1974, the day before
the election , employees of both plants were assembled by
their foreman in the Lou Taylor plant . Lou Taylor then
delivered a 10-minute speech to Respondent's employees.
Company officials present , in addition to Lou Taylor, were
Lapadula and Mazon . Through a translator Taylor opened
by telling his employees that there would be no more lay-
offs , that he was going out and selling in order to maintain
the employees that he had, and that he had obtained some
small orders , and that he could guarantee to them that for
the moment the employees who were there had work. Tay-
lor told the employees that he knew that there had been
many employees who had signed union cards, but that that
was unimportant, that the important thing was that they
not vote for the Union on the day of the election.
6 Neither of the other two organizers who distributed literature with Be-
tancourt during this period testified in this proceeding
7 See Atlanta Gas Light Company, 162 NLRB 436 , 438 (1966), and Verr-
Penn, Inc, d/b/a Indianapolis Downtowner et a!, 205 NLRB 937, 938 (1973)
1029
At some point during the talk Taylor told the employees
that starting at noon on December 24 there would be a
Christmas party in the plant for all employees , that they
would be paid for the full day, and that the employees
would also be paid for December 25 even though they did
not work. Thereafter, the Christmas party was held as
promised , and the employees were paid for the time spent
at the party and for Christmas Day.
Under the Supreme Court' s decision in Exchange Parts,8
it is an unfair labor practice for an employer to confer
economic benefits on its employees for the purpose of in-
ducing them to vote against a union , and, as held by the
Court, the issue in such cases is one involving the com-
pany's motive . As subsequently reasoned by the Fourth
Circuit in J. P. Stevens,9 the question is whether there is
substantial evidence to support a finding that the
employer's intent in granting the benefit or in timing the
announcement of the granting of the benefit was to restrict
its employees' freedom of choice by giving them cause to
infer that the benefit might be withdrawn or future benefits
withheld should they select a union to represent them.
In the instant case, Respondent 's main defense in an-
nouncing the paid holiday party for December 24 and sub-
sequently granting the paid holiday is that this was not a
new or changed benefit, that, except for 1973 and 1972, the
Company had always given its employees Christmas par-
ties. In this regard , Lou Taylor testified that he was not
sure about 1971, either , but explained the absence of par-
ties in 1972 and 1973 on the ground that its employees did
not work the day before Christmas in those years.
This reasoning does not, in my opinion , justify the mak-
ing of such an announcement on December 17, the day
before the election , rather than, say, on December 19, the
day after the election . The court in J. P. Stevens held that
"absent a showing by the Company of a proper business
purpose or necessity , the timing of the announcement of
the grant of an additional holiday so close to the election is
in itself evidence of unlawful motive ." In that case, where
an 8(a)( 1) violation was found, as in this , the announce-
ment was made "as a part of an antiunion speech , which,
though not improper in and of itself , provided a backdrop
and setting for the bestowal of the holiday benefit and fur-
ther evidenced improper motive."
Accordingly , I find that in announcing to its employees
on December 17, the day before the election , that there
would be a Christmas party starting at noon on December
24, and that they would be paid for the full day, the Re-
spondent violated Section 8(a)(1) of the Act, and further, in
granting its employees a half day's paid holiday while they
attended the Christmas party, the Respondent violated
Section 8(a)(3) of the Act.
3. The termination of Angel Rodriguez
Angel Rodriguez , the sole alleged discrimunatee herein,
was laid off on April 3 , 1975, 1 of 79 employees involved in
an economic layoff the week of April 5, 1975 . The credible
s N L R B v Exchange Parts Company, 375 U S 405 (1964)
9J P Stevens & Co, Incorporated v N LR B , 461 F 2d 490 (C A 4,
1972).
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence reveals that, during the winter months of 1975,
the Respondent suffered a drastic reduction in the dollar
amount of orders and a severe decline in business. As a
result, the Respondent was forced to reduce its employee
complement of 332 by a third, and, on March 22, laid off
21 employees; on March 29, laid off 10 more employees;
and during the week of April 5, laid off an additional 79
employees.
In this regard, Superintendent Angel Lapadula was
charged with the responsibility of reducing the work force
throughout the Respondent's operations. As of the first
week in April, the Respondent's cutting department was
comprised of five employees, three cutters and two cutter
helpers. Lapadula determined that he had to reduce the
employee complement in that department by one, and that,
as between cutters and cutter helpers, because of the skill
required, the logical choice was that of one of the two
helpers.
The two cutter helpers then employed were Angel Rodn-
guez, 4 years with the Respondent, and Guillermo Lopez,
an employee of 3 years. Lapadula testified that both men
were good workers and performed well in their primary
cutting department function of laying out work for cutting,
but that, after consulting with Domingo Mazon, he decid-
ed to keep Lopez over Rodriguez because of his ability to
perform work in other departments. In this regard, the
creditable evidence reveals that Rodriguez has but two fin-
gers and a thumb, severed above the first point on his right
hand, and is handicapped 80 percent in its use. This handi-
cap did not affect his ability to do layout work, described
as spreading out material for the interior and exterior of
purses and bags, which work he did most of the workday
While Rodriguez infrequently did do other types of work
and on occasion moved temporarily to other departments,
his handicap did adversely affect his capability of perform-
ing many other handbag production jobs. Most important,
Rodriguez, by his own admission, was unable to do fram-
ing work or ornament work, both considered very skilled
work. On the other hand, Lopez could and did do all kinds
of work, including framing and ornament work, and was
available for movement from one department to another, a
frequent requirement of employees due to the nature of
handbag production.
The evidence further shows that, subsequent to the lay-
offs during the first week of April, Respondent continued
to move Lopez back and forth to other departments, in-
cluding framing and ornament. At one point, approximate-
ly 3 weeks after Rodriguez was laid off, when work in the
framing department dropped and simultaneously picked
up in the cutting department, Lapadula temporarily moved
Carlos Lopez, a framer with cutting experience, into the
cutting department for a short time where he operated the
clicker machine. During this period, Guillermo Lopez re-
mained the only cutter helper in the department.
In June or July, Respondent's business increased some-
what, requiring the hiring of a cutter helper in the cutting
department. At that time, the Respondent, which has no
recall policy, hired a new employee named Borges for the
job.
Contrary to the assertion of Respondent, the General
Counsel alleges that Rodriguez was laid off because of his votes of 223 valid ballots cast
union activities. I do not find this to be the case. Rodriguez
signed a union card on July 5, 1974, subsequently attended
two or three meetings, and acted as an observer for the
Union during the election on December 18, 1974.10 There
is, however, no evidence of company knowledge as to Ro-
driguez' activity other than his appearance as an observer
for the Union in December 1974. Although openly op-
posed to the Union as expressed in the December 17
speech, wherein it unwisely announced the Christmas ben-
efits heretofore found unlawful, there is no creditable evi-
dence that Respondent at any time engaged in threats or
unlawful interrogation of its employees or other interfer-
ence with the union activity of its employees.
Under all the circumstances, including Lapadula's
credited denial that union activity had any part of Rodri-
guez' layoff, unwarranted I find is an inference that 3-1/2
months after the Union decidedly lost an election and after
two earlier economic layoff opportunities, the Respondent
chose Rodriguez as 1 of 79 employees to be laid off be-
cause of his appearance as observer for the Union. I find
that the General Counsel has failed by a preponderance of
the credible evidence to prove the complaint allegation that
Angel Rodriguez was terminated on April 3, 1974, because
he engaged in union activity in violation of Section 8(a)(3)
of the Act.
IV. OBJECTIONS TO ELECTION
As heretofore noted, Petitioner's objections to election
before me for resolution are Objections VI and I(c). Objec-
tion VI reads:
That on numerous occasions at times material the
Union distributed leaflets outside the Employer's
plant to workers. On numerous occasions, the Em-
ployer kept these distributions under close observa-
tion, which included noting those workers who took
copies of the leaflets or spoke with the Union. On
numerous other occasions, Mr. Lou Taylor or his son
Evan harassed and closely followed union representa-
tives during the distribution, preventing workers from
receiving the leaflets, etc.
Based upon the evidence discussed herein relating to al-
leged surveillance and for reasons expressed in finding no
unfair labor practice in this regard, I find that the Em-
ployer did not engage in the objectionable conduct attrib-
uted to it, and shall recommend that Objection VI be dis-
missed.
Objection l(c) reads:
I. On December 17, 1974, at approximately 11 a.m.,
the Employer held a captive audience meeting , during
working hours and on the plant premises, and made
the following inaccurate threatening and coercive re-
marks.
(c) That a victory party would be held on the morn-
ing of December 24, and that everyone would quit
working at noon and be paid for the entire day, as well
as for Christmas Day, December 25.
10 The tally of ballots reveals that at this time the Union received but 38
LOU TAYLOR, INC.
As to this allegation, I find that Taylor, in his December
17 speech, did not refer to a "victory party" or that such
would be held the morning of December 24. Nor did he
threaten anyone. However, as noted above and admitted
by Respondent, after asking the assembled employees not
to vote for the Union the next day, Taylor announced to
the employees that starting at noon on December 24 there
would be a Christmas party for all employees, that they
would be paid for the full day, and that the employees
would also be paid for December 25.11
The Board held in The Baltimore Catering Company,12
involving objections to an election, that "although the
granting of benefits during the relevant period preceding
an election is not necessarily cause for setting aside an elec-
tion, the Board has set aside elections where it appears that
the granting of the benefits at that particular time was cal-
culated to influence the employees in their choice of a bar-
gaining representative. In the absence of evidence demon-
strating that the timing of the announcement of changes in
benefits was governed by factors other than the pendency
of the election, the Board will regard interference with em-
ployee freedom of choice as the motivating factor." I find
no evidence herein demonstrating that the timing of the
December 17 announcement was predicated on anything
other than the fact that the election was scheduled for the
following day.
For the reasons expressed herein prompting my finding
of an 8(a)(1) violation, I find that the Employer's Decem-
ber 17 announcement in this regard is the type of conduct
which interferes with the exercise of a free and untram-
meled choice in an election, and that, therefore,
Petitioner's Objection I(c) has merit: Accordingly, I shall
recommend that this Objection be sustained and that the
representation election held on December 18, 1974, in Case
12-RC-4732 be set aside.
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
ii While it is reasonable to assume that the employees are always given
Christmas Day as a paid holiday, I do not find, as asserted by the Employer,
that the record so revealed
i2 148 NLRB 970, 973 (1964)
CONCLUSIONS OF LAW
1031
1. Lou Taylor, Inc., and Mr. T., Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Leather Goods, Plastics & Novelty
Workers' Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By announcing to its employees the day before the
election that there would be a Christmas party starting at
noon on December 24, 1974, and that the employees would
be paid for the full day, the Respondent interfered with,
restrained, and coerced its employees in the exercise of
their rights guaranteed by Section 7 of the Act in violation
of Section 8(a)(1) of the Act
4. By granting the one-half day's paid holiday on De-
cember 24, 1974, the Respondent engaged in conduct vio-
lative of Section 8(a)(3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
THE REMEDY
It having been found that Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and that it take certain affirma-
tive action which is necessary to effectuate the policies of
the Act
[Recommended Order omitted from publication.]