Rainbow Garment Contracting

National Labor Relations Board - Board Decisions

Aug 29, 1994

314 N.L.R.B. 929 (N.L.R.B. 1994)

929
314 NLRB No. 153
RAINBOW GARMENT CONTRACTING
1 The Respondent, in its exceptions, raises certain issues as to its
obligation to offer the discriminatees reinstatement and backpay. The
General Counsel contends, inter alia, that these questions are being
raised for the first time in the Respondent’s exceptions and that they
were not fully litigated at the unfair labor practice hearing. We agree
with the General Counsel. Because the issues raised by the Respond-
ent have not been fully litigated at this stage of the proceeding, we
shall leave their resolution to the compliance stage of the pro-
ceeding.
However, we shall modify the judge’s recommended Order to con-
form his reinstatement language to that traditionally used by the
Board with the understanding that reinstatement will not be required
for any discriminatee who is shown not to be legally entitled to be
employed in the United States. We shall also add an expunction re-
quirement. See Sterling Sugars, 261 NLRB 472 (1982). Finally, we
shall substitute a new notice.
Rainbow Garment Contracting, Inc. and Anti-Rac-
ist Garment Workers Union and Gustavo
Espinosa. Cases 21–CA–28185 and 21–CA–
28196
August 29, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
At issue is whether the judge gave the correct rem-
edy for the discriminatory discharges.
On December 11, 1992, Administrative Law Judge
Gerald A. Wacknov issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief to
the Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision in light of
the exceptions and briefs and has decided to affirm the
judge’s rulings, findings, and conclusions and to adopt
the recommended Order as modified.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Rain-
bow Garment Contracting, Inc., Los Angeles, Cali-
fornia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a) and
reletter the remaining paragraphs accordingly:
‘‘(a) Offer employees Maria Amezquita, James
Devoe, Julio Guerrero, Luis Carlos Preciado, and Gus-
tavo Espinosa immediate and full reinstatement to their
former positions of employment or, if those positions
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.
‘‘(b) Remove from its files any reference to the un-
lawful discharges and notify the employees in writing
that this has been done and that the discharges will not
be used against them in any way.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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 engage in surveillance of employees’
union activities by taking photographs of union rep-
resentatives while they are outside the factory engag-
ing in lawful union activity.
WE WILL NOT coercively discourage employees from
supporting the Union by telling employees that the
Company has threatened union representatives with a
handgun and has punctured the tires of their vehicle.
WE WILL NOT discharge employees because of their
union activity or suspected union activity on behalf of
any labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed them by Section 7 of the Act.
WE WILL offer to employees Maria Amezquita,
James Devoe, Julio Guerrero, Luis Carlos Preciado,
and Gustavo Espinosa immediate and full reinstate-
ment to their former positions of employment or, if
those positions no longer exist, to substantially equiva-
lent 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 resulting from their discharge, less any net in-
terim earnings, plus interest.
WE WILL remove from our files any reference to the
unlawful discharges and notify the employees that this
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel’s unopposed motion to correct transcript is
granted.
2 All dates or time periods herein are within 1991 unless otherwise
specified.
has been done and that the discharges will not be used
against them in any way.
RAINBOW GARMENT CONTRACTING,
INC.
Salvadore Sanders, Esq., for the General Counsel.
Stephen A. Varga, Esq., of Santa Monica, California, for the
Respondent.
Jose O. Hernandez, Representative, of Los Angeles, Cali-
fornia, for the Union.
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 Los Angeles, California, on May 19 through 21, and Au-
gust 18 and 19, 1992. The charge in Case 21–CA–28185 was
filed by the Anti-Racist Garment Workers Union (the Union)
on July 23, 1991, and a first amended charge was filed on
September 4, 1991. The charge in Case 21–CA–28196 was
filed by Gustavo Espinosa, an individual, on July 31, 1991.
Thereafter, on September 6, 1991, the Regional Director for
Region 21 of the National Labor Relations Board (the Board)
issued a consolidated complaint and notice of hearing alleg-
ing violations by Rainbow Garment Contracting, Inc. (the
Respondent) of Section 8(a)(1) and (3) of the National Labor
Relations Act (the Act). The Respondent’s answer to the
complaint denies the commission of any unfair labor prac-
tices.
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,1 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 California corporation engaged in the
garment manufacturing business, and operates a facility in
Los Angeles, California. In the course and conduct of its
business operations, the Respondent annually purchases and
receives goods and products valued in excess of $50,000 di-
rectly from suppliers located outside the State of California.
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
The Respondent denies that the Union is a labor organiza-
tion within the meaning of the Act. Jose Hernandez, a rep-
resentative of the Union, testified that the Union attempts to
organize workers in Los Angeles County in order to bargain
collectively with their employers for employee benefits. The
Union has never been a party to any collective-bargaining
agreements with employers, but has attempted to intercede
on behalf of unorganized employees in order to resolve prob-
lems with their employers. It has filed representation peti-
tions with the Board, and has been involved in three rep-
resentation elections. It has a constitution and bylaws, and
holds regular union meetings in which employees participate.
On the basis of the foregoing, I find that the above-named
Union is, and has been at all times material, a labor organi-
zation within the meaning of Section 2(5) of the Act. See St.
Anthony’s Hospital, 292 NLRB 1304, 1304–1306 (1989).
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are whether
the Respondent has violated Section 8(a)(1) of the Act by
making physical and verbal threats against union organizers
and representatives and whether it has violated Section
8(a)(3) of the Act by discharging five employees because of
their activity on behalf of the Union.
B. The Facts
On about May 28, 1991,2 three representatives of the
Union handed out union literature to the Respondent’s em-
ployees as they were taking their morning break outside the
factory. This activity was observed by various supervisors,
including one of the owners of the Respondent, Tam Chiu.
The Respondent employs about 100 employees, approxi-
mately 95 percent of whom are Spanish speaking, and the
Union distributed a handbill to the employees, in Spanish
only, which states, inter alia:
WORKERS FROM RAINBOW INC. SAY
Enough already of abuses from foreman and bosses!
Repression, abuse and discrimination are some of the
problems that garment workers endure and those bad
acts are agitated due to the despotic treatment from em-
ployers and their rogues.
Some of these problems like:
1—starvation salaries
2—no pay for overtime
3—dirty restroom, they constantly never clean
them.
4—Lack of a lunchroom.
5—need of a healthful and safe environment in
which to work.
These are only some wrongs that we endure here at
Rainbow Inc. To that we add the despotism from man-
agers and persons in charge against the workers. Espe-
cially against women, since sexual harassment from
these louses is the order of the day.
. . . .
Is it perhaps fair that we the laborers be treated like
this? Of course not.
. . . .
931RAINBOW GARMENT CONTRACTING
Workers should unite and fight for international and
multi-racial unity. Only like this can we stop despotism
and humiliation by Employers. Laborers from Rainbow
Inc., let’s organize the Anti-Racist Garment Workers
Labor Union.
. . . .
we demand fair salaries
clean restrooms
lunchrooms for all the workers
immediate firing of abusive managers
The handbill contained the name, address, and phone num-
ber of the Union, and one of the Respondent’s employees,
Yolanda Amezquita, phoned Hernandez, the Union’s rep-
resentative, that evening. Amezquita attended a regular
monthly union meeting on May 31, and was given union
membership cards to distribute to her coworkers. She signed
a card on May 31. Amezquita testified that thereafter she be-
came actively involved in promoting the Union, and would
frequently solicit a group of some 15 employees, with whom
she ate lunch and took breaks outside the Respondent’s facil-
ity, to sign union membership cards. She distributed approxi-
mately 10 such cards and, between July 12 and 18, she ob-
tained signed cards from 3 employees, namely, James Devoe,
Gustavo Espinosa, and Luis Preciado, which cards she re-
turned to Hernandez.
On July 12, the union representatives again handbilled out-
side the Respondent’s facility during the morning break.
There were approximately 20 employees standing outside,
and the majority of them took handbills from the representa-
tives. Amezquita testified that the Respondent’s owner, Tam
Chiu, got very close to the representatives and began taking
pictures of them and, in English, cursed at them in a ‘‘very
loud and angry’’ manner. Chiu held a device similar to a cat-
tle prod which was able to stun people with an electrical
charge. Several weeks earlier, when Amezquita went to
Chiu’s office to make copies of a work-related paper, Chiu
showed her the device, which he said he had recently pur-
chased, and said that it could be used to defend one’s self.
Amezquita further testified that another supervisor, Cedric
Su, was present during the aforementioned union handbilling,
and after Amezquita had returned to the plant about 3 or 4
minutes before the end of the break, she observed Su remov-
ing a pistol from a box in his office.
The handbill distributed to the employees on this occasion
contained a facsimile of a membership card at the bottom,
and urged the employees to fill it out and return it to the
Union. It listed the benefits which the Union would demand,
including a shorter workday, a higher minimum wage, com-
plete health insurance, immediate and unconditional amnesty
for all undocumented workers, and that May 1 be a paid hol-
iday ‘‘because this is the International Day of the working
class.’’ The handbill states that:
The Anti-Racist Garment Union (SARCO) is being
built by members of INCAR and the Communists of
P.L.P. This Union is dedicated to organize all the work-
ers starting with garment [sic] industry.
Hernandez testified that Chiu was as close as 1 foot away
from the face of the various union representatives as he took
their picture. Some tried to cover their faces with the union
newspaper which they were distributing to the employees.
Chiu was yelling at the representatives, telling them to ‘‘[g]o
to hell,’’ and to ‘‘[g]et out of here.’’ The employees were
returning to work as the break period was about over. Her-
nandez testified that the situation seemed potentially volatile,
as Chiu was provoking the representatives with his yelling
and closeup picture taking, and the representatives decided to
leave. At this point, Hernandez observed Chiu approaching
Oscar Gomez, another representative. Chiu pushed a large
caliber bullet in Gomez’ chest, and then handed him the bul-
let, saying, ‘‘This bullet is for you.’’ Chiu then said that he
had more bullets, ‘‘But next time, I’m going to put it in your
body.’’
The representatives went to their van, which was parked
adjacent to the Respondent’s parking lot near the factory. As
they were approaching the van, Hernandez noticed that Su-
pervisor Su, with a knife in his hand, was walking away
from the van. As Hernandez entered the driver’s side of the
van he noticed that the sidewall of the left rear tire had been
punctured. At the same time, Chiu bumped another rep-
resentative, Jose Sanchez, with his body and arm, whereupon
Sanchez entered the van and picked up a ceramic coffee cup
and threw it at Chiu. The cup missed Chiu.
Chiu then yelled at Su to ‘‘[g]et the gun,’’ and Su ran
back into the factory. He returned within 30 seconds with a
handgun, which he tried to conceal with his hand. Hernandez
told Su to ‘‘cool it down,’’ and the representatives got into
the van. At this point, Su ran to the rear of the van and Her-
nandez heard air escaping from the right rear tire. Hernandez
got out of the van, observed that the right rear tire was also
flat, and decided to drive away with two flat tires rather than
leave the vehicle at the Respondent’s premises. They drove
several blocks away and began to change one tire when they
noticed that Chiu had followed them in his vehicle and was
stopped in the middle of the street watching them. They
changed the tire, and then drove the van with one flat tire
to a friend’s home. Chiu did not follow them.
The aforementioned incident occurred on a Friday. The
following Monday, after conferring with an attorney, Her-
nandez filed a claim with the Los Angeles Police Department
charging Su with threatening conduct and vandalism. The
matter was set for hearing, but the charge was dropped after
Hernandez was unable to attend the scheduled hearing due
to another important commitment.
Oscar Gomez testified regarding the events of July 12, and
corroborated Hernandez’ account of the happenings during
that situation. Gomez stated that Chiu appeared to be pro-
voking a confrontation by taking pictures at close range, and
verbal insults. At one point Chiu placed a bullet in Gomez’
hand and said, ‘‘Next time you come back, I will put it in
your body.’’ At another point, as the representatives were in
the process of leaving, Chiu pushed Sanchez, and this
prompted Sanchez to throw a coffee cup at Chiu. Then, ac-
cording to Gomez, Chiu told Su to get a gun, and at some
point Su produced a gun and pointed it at the union rep-
resentatives. Gomez admitted that he could not recall exactly
what happened and does not know whether Su went back in-
side the factory to get a gun or whether he already had the
gun in his possession. Gomez heard the air escaping from the
rear tire of the van, and testified that the van had two punc-
tured tires. Chiu followed them in his vehicle as they left the
area.
932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Amezquita testified that shortly after the morning break
had ended, Sergio Delapaz, foreman of the finishing depart-
ment, said to her and employee James Devoe something to
the effect that the union people were reluctant to fight, and
mentioned that Su had a ‘‘nine millimeter’’ pistol in his
hand. He said that the union representatives were fools for
‘‘coming here to clown around like this’’ in front of the fac-
tory; and that Su had punctured the tires of their vehicle
while Chiu was present.
On July 16, during the noon lunch break, the union rep-
resentatives returned to the factory and commenced
handbilling. Accompanying the representatives were per-
sonnel from channel 52, a Spanish television station, and a
local Spanish newspaper, La Opinion, who had been con-
tacted by Union Representative Hernandez. Hernandez was
using a megaphone and was telling the employees who were
outside the plant that the union representatives were victims
of attacks from company bosses, and that the bosses had
punctured the tires of the Union’s vehicle. He said this type
of conduct would continue unless the employees had union
representation. He also distributed a union leaflet, in Spanish,
advising the employees of the ‘‘criminal attacks’’ against the
union representatives, and urging the employees to join the
Union in order to get increased wages and other benefits.
Both Amezquita and employee James Devoe consented to
be interviewed by reporters from the newspaper and the tele-
vision station. Employee Julio Guerrero was also interviewed
by them, according to Amezquita, but Amezquita did not
hear what Guerrero said until the news was broadcast that
evening, infra. Amezquita told the reporters that the majority
of the employees were Latinos, and their treatment was not
as good as the treatment of ‘‘the bosses,’’ and said that she
favored the Union because it was the best way to obtain
what the employees were demanding. During this interview,
both Foreman Delapaz and Supervisor Clint Williams were
nearby, listening to her, and she felt that Delapaz ‘‘was try-
ing to intimidate to affect my answers.’’ Devoe told the re-
porters, according to Amezquita, that the employees were
very displeased because of the bad working conditions and
the mistreatment of some of the people.
That afternoon, Amezquita was called into the office by
her supervisor, Carol Arrigoni, who said that Chiu wanted to
speak to her. Chiu asked Amezquita what was going on, and
Amezquita said, in English, that:
[T]he people from the union had shown up. That they
had again handed out fliers, and they were making
claims that they had been attacked. That they had re-
ceived criminal attacks by him—by his behalf. I also
told him that the television people had been present. I
also told him that the people from the newspaper, La
Opinion, had been there. I told him that they were ask-
ing questions—people questions, and that they had
asked me questions. And he ask me what it was that
they ask me. I told him that they asked if there was dis-
crimination at the job. I told him that us Latinos people
had a place at work that was very different than that
of the bosses. . . . I also told Mr. Chiu that I was
asked if I was agreeing to form a union at the work
place, and I said yes.
Chiu told Amezquita that this was not a valid Union because
it was not registered. Amezquita asked Chiu why he was
questioning her about what took place, and Chiu said that it
was because Amezquita understood Spanish very well.
Amezquita asked why he did not ask some of the Hispanic
supervisors, who also spoke Spanish fluently, and Chiu did
not answer. She gave Chiu a copy of the flier that the union
representatives had distributed, and told him that if he want-
ed to know more he could watch the 6 o’clock news on
channel 52.
That evening, during the 6 o’clock news on channel 52,
a report on the Union’s organizing of the Respondent was
aired, together with the interviews of Amezquita, Devoe, and
Guerrero. Guerrero said, according to Amezquita, who
watched the broadcast, that people of the same race as the
boss had better positions and were given the best work, and
that this was affecting the Latinos.
Amezquita’s primary work station was located in the base-
ment of the Respondent’s factory, although her work also re-
quired her to go to other parts of the plant. Julio Guerrero,
James Devoe, Gustavo Espinosa, and Phillipe Villalba also
worked in the basement. They were all under the immediate
supervision of Carol Arrigoni, who worked in the basement
with them. The employees would frequently talk with each
other, about both work and nonwork-related matters and, ac-
cording to Amezquita, they were never told that they could
not talk to each other or that their talking was excessive.
Amezquita noticed a ‘‘great difference’’ after the union rally
on July 16. Prior to that time she had a good relationship
with Arrigoni, who would talk with her about different
things, such as a trip she had taken to New York. After July
16, however, Arrigoni was not as friendly, spoke with her
only sparingly, and would scream orders at her. Amezquita
also observed that during the occasions when her work took
her to various parts of the building, there would always be
a supervisor nearby ‘‘trying to listen to what I was talking
about with other people.’’ The supervisors who were observ-
ing her were, according to Amezquita, Supervisors Arrigoni,
Delapaz, and Miguel Tirado.
Also, according to Amezquita, Guerrero’s workplace was
changed on July 18, when he was moved to the banding de-
partment on the first floor.
On Friday, July 19, when Amezquita arrived at work,
Arrigoni said that she wanted to make some things clear to
her. Arrigoni then said that she did not want Amezquita to
leave the basement, or lift any heavy rolls of fabric. At the
time, Amezquita was 3-1/2 months pregnant, but had had no
difficulty doing her work in any respect, and had not com-
plained to Arrigoni. Arrigoni told her that she didn’t want
Amezquita to climb the stairs, and that if she needed a sam-
ple to be taken somewhere in the plant, Arrigoni would take
it for her. Amezquita remained in the basement that day.
Also on that day, while Amezquita was waiting to use the
restroom, which was occupied, she had occasion to speak to
Preciado who was preparing some boxes for shipping. She
observed Su passing by twice during a period of about 3
minutes, and noticed that he was watching them.
After work, at 5 p.m. on July 19, Amezquita was waiting
on the sidewalk across the street from the plant, together
with Julio Guerrero, James Devoe, and several other family
members of Guerrero and Amezquita, as the group was
meeting after work to go to a birthday celebration. While
933RAINBOW GARMENT CONTRACTING
waiting for Gustavo Espinosa to join them, she observed
Chiu, Chiu’s wife, and Su, standing at the ‘‘first floor’’ win-
dow watching them with binoculars for about 5 minutes.
Luis Preciado and Gustavo Espinosa are Amezquita’s
friends, and the three of them would eat lunch together, ei-
ther in the small lunchroom or outside the plant.
Amezquita reported to work on Monday, July 22. Arrigoni
summoned her to an office and handed her various items, in-
cluding her radio and scissors, and told her to go and pick
up her last paycheck. Amezquita asked why, and Arrigoni,
who appeared very nervous and upset, screamed at her that
she talked too much. While waiting for her check she en-
countered Devoe in the office. He too had been fired. They
waited about 20 minutes for their checks, and Amezquita
overheard Chiu tell the bookkeeper to hurry up and get the
checks made out. Amezquita had never been told that she
talked too much or would be discharged for talking too
much, and had routinely talked to coworkers on the job.
Talking among the employees was a regular occurrence, and
Amezquita did not talk more than other employees.
James Devoe began working for the Respondent on June
10, and was discharged on July 22. He was hired by Arrigoni
as a patternmaker. The job of patternmaker is a skilled posi-
tion and Devoe’s job was to discuss the dress design with
the designer, and make the pattern for the garment; the pat-
tern is then used to cut out the sample garment. Devoe had
prior experience as a patternmaker, and has a degree in pat-
ternmaking from the Fashion Institute of Technology in New
York.
On July 12, after the union representatives had appeared
at the premises during the morning break, Supervisor
Delapaz said to him and Amezquita, who were working in
the basement, that someone had punctured the tires of the
union representatives’ vehicle, and had scared them away
with a gun. Devoe did not recall whether Delapaz identified
the person who had committed these acts. Later that day,
Devoe signed a union membership card that was given to
him by Amezquita.
Devoe testified that during the union rally outside the
plant on July 16, he was interviewed by the television and
newspaper reporters, and told them that the employees were
trying to get the Union organized because they needed better
benefits, cleaner dining rooms and bathrooms, and because
they did not get paid overtime. Amezquita and Julio Guer-
rero were also interviewed. The interviews of the three em-
ployees were broadcast during the 6 o’clock news that
evening.
Four employees, including Devoe, Amezquita, and Guer-
rero, worked in the basement. Arrigoni was their supervisor.
Devoe testified that it was customary for employees to talk
while they were working, and neither Arrigoni nor any other
supervisor told them that they were talking too much.
According to Devoe, nothing was ever said to him by any
supervisor that the quality of his work was unacceptable, or
that his production was too low. When interviewed for the
job he was required to make a pattern for Arrigoni; this took
several hours. Arrigoni said she would let him know if he
was the best applicant after interviewing other individuals
who had applied for the job.
Devoe testified that prior to the union activity Arrigoni
had been pleasant toward Devoe and spoke with him on a
daily basis regarding work-related matters. However,
Arrigoni’s demeanor changed after the interview on July 16.
According to Devoe, Arrigoni doubled the amount of work
he would be assigned, and always complained about minor
things that she had never complained about before. This
would happen about four times a day. She became less po-
lite, and would throw work on his table rather than hand it
to him as she had done previously. In addition, she was
watching him and checking his work; she had not done this
in the past.
Devoe reported to work on July 22, and noticed that Guer-
rero was leaving the plant. Guerrero told him that he had
been fired because of the Union and his interview on TV.
On entering the factory, Arrigoni told Devoe to report to the
bookkeeper’s office and pick up his final check because she
could not ‘‘stay on my back watching me, correcting my
work.’’ Devoe asked whether he was being fired because of
the TV interview, and Arrigoni said that was not true.
Arrigoni never reprimanded him about his work or issued
any written warnings about his work. Nor did she ever praise
his work; according to Devoe, Arrigoni never praised any-
one’s work. Devoe went to the bookkeeper’s office.
Amezquita entered the office shortly thereafter, and said that
she had also been terminated. While waiting for their checks,
Devoe heard Chiu telling the bookkeeper to get the checks
prepared ‘‘really fast.’’
The discharge notice prepared by Arrigoni stated that
Devoe was unable to perform pattermaker and related duties,
such as correctly filling out cost sheets and making accurate
yardage estimates, and that: ‘‘Excessive and unnecessary
talking as a result job performance is not of a quality stand-
ard.’’ Devoe testified that Arrigoni would sometimes change
the cost sheets he submitted for each garment, but that this
simply reflected a difference in the excess yardage that each
believed should be allotted for the garment. In this regard,
Arrigoni had more experience than Devoe with the patterns
of garments that the Respondent customarily produced, and
this caused her to make different yardage estimates than
Devoe. Thus Arrigoni, knowing how Devoe estimated excess
yardage, would sometimes change Devoe’s figures, but never
told him to change his procedure for doing this work, and
never advised him that his method for filling out the cost
sheets or determining the excess yardage was wrong. Nor did
Arrigoni ever tell Devoe that he was talking too much.
Gustavo Espinosa was employed by the Respondent since
May 22, 1989. Since May 1990, he primarily worked in the
warehouse, but also maintained a desk in the basement; some
warehouse materials were also stored in the basement. His
duties were to keep the warehouse in order, receive incoming
materials, bring fabric to the cutters, and keep an inventory
of merchandise in the warehouse. He was discharged on July
26. He signed a union membership card, given to him by
Amezquita, on July 18. He and Amezquita would regularly
eat lunch together in the lunchroom at the factory. Super-
visors would sometimes be present in the lunchroom. Al-
though Espinosa sometimes worked in the basement, the su-
pervisor with whom he had the most contact was Clint Wil-
liams rather than Arrigoni. When Espinosa arrived at work
on July 26, he was summoned to the office. Chiu and the
bookkeeper, Peter, were present. Peter spoke to him in Span-
ish and thanked him and told him that it was the owner’s
decision to give him his final paycheck. Espinosa, who was
taken by surprise, did not say anything. He had received no
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
prior warnings for his work performance, and was never told
the reason for his termination.
Espinosa never told any supervisors that he favored the
Union. About a week or so prior to his discharge he had a
conversation with Supervisor Miguel Tirado who commented
that he did not understand why things were happening at the
factory. Although Espinosa understood him to be referring to
the Union, no supervisors have ever specifically mentioned
the Union to him. About 2 months prior to his discharge,
Foreman Delapaz told him that Chiu said the Respondent
would be able to pay him a little more money if he could
speak English, as this would be an advantage. Espinosa re-
plied that if he could speak English he wouldn’t be working
for the Respondent; rather, he would be looking for a job
that paid him more money. This was not said in an offensive
manner and was merely a statement of fact.
Luis Preciado began working for the Respondent on Feb-
ruary 17, 1991. He worked in the packaging department as
an inspector. His immediate supervisor was Miguel Tirado.
He arrived late to work on about 10 occasions. Each time
he arrived late his supervisor would tell him to try to get to
work earlier. He was never warned that he would be dis-
charged for arriving late to work.
On July 18, Preciado signed a union membership card
which was given to him by Amezquita. Preciado would, on
occasion, speak with Amezquita in the basement when he
would inquire whether Espinosa was still working, as he and
Espinosa, who sometimes worked in the basement, walked to
and from work together. He and Espinosa took breaks to-
gether twice a day.
On July 18, Preciado happened to remove a gummed RPS
(Roadway Parcel Service) label or sticker from a pipe and
placed it on a box packed with garments. The sticker was
in English and Preciado did not know what it said or rep-
resented. Nor was he able to explain why he did this; it was
just a spontaneous act. He had not seen such a sticker before.
Supervisor Su observed this, and gestured ‘‘no’’ with his
head, and Preciado then saw Su reporting the incident to
Delapaz. About a half-hour later, Delapaz approached him
and asked why he put the sticker on the box. Preciado said
that he had not done it intentionally, and Delapaz said that
if he did it again he would be terminated because the work
would ‘‘come out bad.’’ Delapaz told him to remove the
sticker, and Preciado did so. According to Preciado the box
of pants on which he had placed the label, together with sev-
eral other boxes, had been there for over a month; there were
no other markings on the boxes and they were not being pre-
pared for shipment.
On July 19, Preciado had a conversation with Amezquita
while she was waiting to use the restroom. They were speak-
ing in Spanish, and Supervisor Su walked by on two or three
occasions and observed them speaking. When Su walked by
they stopped talking. Su, who does not speak Spanish, was
about 15 feet away and, according to Preciado, would not
have been able to hear their conversation.
On Friday and Saturday, July 19 and 20, nothing more
was said to Preciado about the packaging label incident. The
following Monday, July 22, at about 11 a.m., Supervisor
Tirado summoned him to the office and told him that the
owners had directed him to give Preciado his final check.
Preciado asked for an explanation, and Tirado said that he
could not give him an explanation because he was not there
when the incident involving the sticker had occurred.
In April, Preciado had made a mistake by mixing two dif-
ferent sizes of shorts together and at that time Tirado told
Preciado that he should try not to make any more mistakes
because if he did he would be fired. Preciado said that he
would be more careful.
Sergio Delapaz, foreman of the finishing department, testi-
fied that he became aware that the June 16 television cov-
erage of the Union’s rally would be aired by channel 52 on
the 6 and 11 o’clock news that evening. Delapaz testified
that he watched the news and saw the interviews. He ac-
knowledged that Amezquita said, during the broadcast of her
interview, that the owners and supervisors of the Respondent
were discriminating against the workers; that Guerrero said
that racial discrimination existed because the workers of the
same race as the owner were given better positions and pay;
and that Devoe said there were many problems in the work-
place and many employees complained about these problems.
According to Delapaz, Chiu asked him about the broadcast,
and Delapaz reported to him what the three employees had
said during their respective television interviews.
Delapaz testified that he was outside the factory, close to
the door, during the Union’s June 12 visit to the Respond-
ent’s premises, and that to his knowledge, no supervisor had
a pistol or an electric shocking device. He observed that two
ceramic cups were thrown at Chiu by one of the union orga-
nizers; the first cup missed Chiu’s head and the second cup
hit Chiu on the ankle. Delapaz acknowledged that Espinosa
worked in the basement with Amezquita, Devoe, and Guer-
rero, as there was fabric stored there.
Carol Arrigoni is supervisor of the design department. She
has joint authority with Chiu to hire and fire employees.
Arrigoni testified that she recommended to Chiu that
Amezquita, Devoe, and Guerrero be discharged because they
constantly talked during work to the point where Arrigoni
could not concentrate on her work. According to Arrigoni the
talking started about the last part of June. Thereafter she
warned the three of them at least once a week about their
talking, but never told them that they would be discharged
if they continued to engage in excessive talking. Because of
the talking, she began checking their work more closely.
Arrigoni had no idea that the three employees were active on
behalf of or supported the Union.
With regard to Devoe, Arrigoni testified that since the
time he was hired in May he was unable to do a cost sheet,
and his pattern work was poorly done; she was constantly
having to make corrections. While Devoe did ‘‘fairly well’’
during his first week of work, his attitude changed and be-
came ‘‘bad’’ and Arrigoni could not get him to cooperate
with her and do the work as she wanted it done. She rec-
ommended to Chiu that Devoe be discharged about 2 weeks
after he was hired, but Chiu said, ‘‘Give him a chance.’’ She
complained many times thereafter, and Chiu told her ‘‘not to
be so picky.’’ She had to reject some of Devoe’s patterns
and warned him everyday. On July 16, she placed an ad in
the newspaper for a replacement patternmaker for Devoe.
Arrigoni testified that Amezquita was ‘‘fairly careful until
all this talking started,’’ but became careless and made mis-
takes. She asked Amezquita, who was noticeably pregnant,
not to run up and down the stairs and to get someone to lift
the rolls of fabric for her, and always spoke to her in a
935RAINBOW GARMENT CONTRACTING
friendly manner. Arrigoni said that she did not call
Amezquita to the office the day after the television crew ap-
peared at the factory; however, Chiu did tell her that he
questioned Amezquita about the matter.
Amezquita’s ‘‘Employment Separation Record,’’ dated
July 22, states:
Excessive and unnecessary talking, which has re-
sulted in poor performance and quality of work has suf-
fered. She has been told many times because of her
pregnancy not to lift fabric rolls & not to deliver sam-
ples upstairs to sample sewers & insists on doing both.
Excessive talking has been disruptive to other em-
ployees, as a result attitude, work habits & initiative
has dropped. Supplied fake Immigration Card. Has not
advised office of change of name, recently married.
Arrigoni said that she heard that tires had been slashed
during the June 12 union visit, and that she might have heard
this from either Supervisor Williams or Foreman Delapaz.
Arrigoni testified that Chiu is not a very strict employer,
and was reluctant to discharge employees for not properly
performing their work. She had been complaining to Chiu
about Guerrero for about a year, and told Chiu that Guerrero
liked to hang around and kill time, and would not do what
he was told to do. Chiu told her not to worry about it.
Pik Hong Chiu, owner of the Respondent, testified that be-
cause of his experiences in China he had a particular abhor-
rence of Communism, and was not aware that the purported
Union was anything but a subterfuge for a Communist orga-
nization which would not hesitate to employ terrorist and de-
ceptive measures in seeking inroads into his business through
his employees. Thus, on reviewing one of the fliers distrib-
uted by the Union he went to the address reflected on the
flier and took photos of Communist slogans and emblems,
including clenched fists, a Communist flag, a ‘‘Molotov
cocktail,’’ and automatic weapons, posted on the windows of
the office at that address. He did not know that the represent-
atives were from a union, nor did he even know of the exist-
ence of the Union herein until after the instant charges were
filed with the Board, when a Board agent advised him that
the organization that had handbilled in front of his building
was, in fact, a union. Nor was he aware that any of his em-
ployees were associated with the organization.
Chiu denied that he ever placed a bullet in the chest of
Union Representative Gomez, or handed him a bullet, or
knew anything about such an incident. When he began taking
photos, the union representatives began yelling at him, using
foul language, and one of them, apparently Gomez, threat-
ened to kill Chiu. Chiu did not see Cedric Su on the side-
walk that day during the Union’s visit. Chiu did not see a
gun or a knife in anyone’s hand, and denied that either he
or Su punctured the tires of the Union’s van. He testified that
two coffee cups were thrown at him by Hernandez, one of
the union representatives, and that the first cup missed him
but the second cup hit the heel of his right foot. According
to Chiu, when the union representatives drove away in the
van it was ‘‘driving very well,’’ and he did not observe any
flat tires. After instructing someone to call the police, he fol-
lowed the van in order to be able to let the police know its
location, as he had a car phone and a high frequency trans-
mitter in his vehicle, and was able to keep in contact with
his office. However, the police did not arrive until several
hours later.
Chiu testified that Espinosa, who was in charge of
inventorying fabric, marking it, and bringing it to the cutters
in an accurate and timely fashion, was discharged because he
was careless and kept making mistakes with expensive fab-
rics, and this resulted in a loss of money for the Respondent.
Espinosa had a higher level of responsibility than other em-
ployees in the department and was considered to be a
leadman. Chiu instructed Su to talk to Espinosa about his
work performance, as Chiu does not speak or understand
Spanish, and Espinosa does not understand English. Also, ac-
cording to Chiu, it would have been helpful for Espinosa to
learn English but he never tried to learn. ‘‘Later,’’ according
to Chiu, ‘‘he became less and less concentration [sic] on the
work, always went down to the basement and talked to peo-
ple there.’’ Chiu testified that if Espinosa wanted to work
‘‘he could be very smart,’’ but for some reason he became
‘‘lazy.’’
Preciado, according to Chiu, was discharged because he
was absent and tardy on numerous occasions, and because he
intentionally placed a sticker on a box that was ready to be
shipped. The box was one of four boxes, packed that morn-
ing, on which ‘‘UP’’ labels had been placed. These labels
designated that the boxes were to be shipped by air. Preciado
placed an ‘‘RPS’’ sticker over one of the UP stickers. RPS
is a carrier that only delivers by truck; thus, the customer,
rather than receiving the merchandise by air the following
day, would not receive the order for 5 or 6 days. When
Preciado was asked why he did this he was never able to
give a satisfactory answer. Apparently Chiu believed that
someone had put him up to this, as Preciado was specifically
asked whether this was the case. Chiu testified that ‘‘we
knew that somebody tried to do something to the shipping
department, we had to ship something—some clothes out but
when they would receive it there was a whole bunch of gar-
bage in the box.’’ Preciado was supposed to know what the
stickers meant. Chiu said that Preciado was given a chance
to tell the truth about who caused him to mislabel the box,
but Preciado would not say. In addition, the head of the ship-
ping department was not very happy with Preciado’s work,
as he mixed up the sizes of clothing.
Guerrero was a former truckdriver, whom Chiu transferred
to the shipping and cutting departments, as the Respondent’s
insurance company precluded Guerrero from driving because
of a number of citations. He was paid more than the cus-
tomary rate of pay for these positions, as Chiu permitted him
to retain the higher driver’s pay scale. According to Chiu,
Guerrero made mistakes as a marker, even though he was
placed in the basement near Arrigoni, who could oversee and
correct his work. Moreover, he and the other employees in
the basement, Amezquita and Devoe, always talked in very
loud voices in order to be heard, as they did not work in
close proximity to each other. Also, they listened to Spanish
music on the radio, and had the volume turned too loud.
Arrigoni could not get them to talk less or to lower the vol-
ume of their voices or the radio, and felt that the employees
were not properly concentrating on their work.
Chiu testified that Arrigoni reported to him that she re-
peatedly gave instructions to Amezquita, but that Amezquita
would not follow orders. Amezquita had the job of cutting
samples by hand, and she made mistakes all the time in cut-
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 While exhibits introduced by the Respondent contain documents
which appear to be written warnings issued to the aforementioned
employees, such documents were received provisionally, subject to
verification by subsequent record testimony. The Respondent failed
to proffer such testimony, and I find that the record evidence does
not show that, in fact, the warnings were issued to the employees.
ting the fabric. Also, she talked all day long, and even went
to other departments just to talk. Because she was pregnant,
she was instructed to have someone carry the fabric to the
cutting table for her, but she did not do so. Chiu denies that
he spied on Amezquita with binoculars when she was outside
the premises. Further, for purposes of the hearing, Chiu took
photos from outside the building to show that there were no
windows on the ground floor on the side of the building
where Amezquita and her friends were standing. Rather, the
windows were on the second floor. In addition, the place
where Amezquita and her friends were allegedly standing
was some distance away from the building, and a parking lot
fence would have obstructed the view of the second floor
windows. Thus, Chiu maintains that Amezquita could not
have observed anyone standing in the second floor windows.
Chiu said that employees who work for Arrigoni seldom
work for long periods of time, and that 15 people ‘‘were
fired’’ in the past 4 years because Arrigoni’s temper was
‘‘pretty bad’’; so bad, in fact, that there has not been 1 week
that Arrigoni has not yelled at Chiu.
Chiu testified that Devoe’s patternmaking work ‘‘was
worse than a beginner,’’ and he was not able to properly per-
form the work after 2 months. However, Chiu testified that
Devoe was the best applicant of seven individuals who were
interviewed for the position, and that ‘‘the first month she
[Arrigoni] liked him alot.’’ At another point, Chiu said that
after a ‘‘couple of weeks’’ Devoe had demonstrated that his
work was not acceptable. The Respondent has a 3-month
probationary period, and it was decided to terminate Devoe
prior to its expiration. In addition, according to Chiu, Devoe
‘‘talked from the beginning of the work until the end of the
work. If he had paid enough attention to his work he was
able to do it.’’ He was not good at preparing cost sheets, and
would not listed to Arrigoni’s instructions. Arrigoni warned
him about this several times.
The Respondent introduced an exhibit into evidence show-
ing that some 83 employees, not including the 5 alleged
discriminatees herein, were laid off or discharged in 1991.
The exhibit shows that all but seven of the employees on the
list were ‘‘laid off,’’ and that the other employees were dis-
charged for cause. Chiu testified that the employees who
were laid off were actually terminated, but were told they
were laid off because the Respondent did not want to hurt
their feelings.
As noted above, Chiu went to the address listed on the one
of the union leaflets, and took photos of the office windows.
He testified that he gave the photos to his supervisors, and
they prepared a poster which was posted at the factory from
the end of May through August. Chiu maintains that he did
not know what the poster said since whoever prepared it
wrote in Spanish, and he never asked his supervisors to tell
him what they had written. The poster is about 3 feet long
and 2 feet high, and contains eight photos of the front win-
dow of the union office, including some closeups of material
posted in the window depicting Communist slogans and
propaganda. One of the photos shows a picture of several
men holding a gasoline bottle with a wick, or ‘‘Molotov
cocktail,’’ and an automatic weapon known as an AK-47. At
the top of the poster, in letters several inches high, is written:
‘‘Fellow workers, Communists cannot be in this country le-
gally.’’ Below that, in smaller letters, is the quotation,
‘‘Think twice, don’t commit the greatest error of your life.’’
A portion of the Union’s handbill is also attached to the
poster, and states that: ‘‘We demand just salaries, clean bath-
rooms, a lunchroom for all workers, immediate firing of abu-
sive foremen,’’ and, printed in pen beneath the aforemen-
tioned items, ‘‘a new microwave.’’
On cross-examination, Amezquita and Espinosa admitted
that they used false social security cards and false immigrant
registration cards (green cards) to obtain employment with
the Respondent; Preciado admitted that he used a false immi-
grant registration card; and Devoe admitted that some of the
dates and periods of employment with prior employers on his
employment application were incorrect as, in order to obtain
employment, he wanted to make it appear that he had
worked in the Los Angeles area for a longer time than was
actually the case.3 Guerrero did not testify in this proceeding.
The record also contains voluminous documents, each of
approximately 150 pages, comprising the complete workers’
compensation files of Amezquita, Espinosa, and Preciado.
These employees, shortly after their discharge, filed workers’
compensation claims against the Respondent, alleging that
they incurred both physical and emotional stress and dis-
ability on the job. They were apparently subjected to bat-
teries of tests by physicians, psychologists, and other medical
professionals, and the aforementioned reports were submitted
to the Respondent for reimbursement of costs incurred by
such professionals in evaluating the ‘‘disabilities’’ of the em-
ployees. The Respondent apparently introduced the afore-
mentioned documents to show either that they contained fab-
ricated claims regarding alleged on-the-job injuries or emo-
tional distress, thus adversely reflecting on the employees’
credibility with regard to the material issues herein; or, if
such reports were true, that the employees were indeed defi-
cient in their work because of work-related physical or emo-
tional stress, thus lending credence to the Respondent’s con-
tention that the employees were discharged because, for
physical or psychological reasons, they were unable to prop-
erly perform the work required of them.
C. Analysis and Conclusions
I have previously found that the Union is a labor organiza-
tion within the meaning of the Act. The Respondent’s owner,
Chiu, has admitted his intense suspicion of and repugnance
toward the Union, particularly as a result of its affiliation
with a Communist organization. Thus, Chiu believed that the
Union was not a legitimate labor organization, but rather was
a front for a subversive and even terrorist group. While
Chiu’s antipathy toward the Union is thus understandable, it
has not been shown that the Union herein had any agenda
other than the conventional objectives of labor organizations;
therefore the employees’ activity on behalf of such an orga-
nization is clearly protected by the Act.
I credit the testimony of Union Representatives Hernandez
and Gomez, and find that during their visit to the factory on
July 12, Chiu engaged in unlawful surveillance of employ-
ees’ union activity by conspicuously photographing the union
937RAINBOW GARMENT CONTRACTING
4 While the foregoing incidents were fully litigated by the parties,
the complaint does not specifically allege that such conduct is viola-
tive of the Act. The complaint does contain an allegation that Fore-
man Delapaz, on July 12, at the facility, threatened employees with
physical harm if they supported or assisted the Union. As Delapaz’
conduct in advising Amezquita and Devoe of the Respondent’s
threats, set forth above, is reasonably encompassed by this complaint
allegation. However, there is no evidence that Delapaz was directly
involved in the foregoing incidents outside the Respondent’s prem-
ises. Nor has there been a motion to amend the complaint to include
allegations that either Chiu or Su violated the Act by the aforemen-
tioned conduct. Therefore, while clearly demonstrating extreme
union animus, I make no determination herein that such conduct is
violative of the Act.
5 In assessing credibility I have carefully considered the Respond-
ent’s contentions that Amezquita, Preciado, and Espinosa submitted
false documents to the Respondent in order to obtain employment,
and, having been unjustly discharged, may have exaggerated the ex-
tent of their job-related stress or injuries. In this latter regard, how-
ever, it is not unlikely that the authors of the various medical reports
and psychological profiles did not, themselves, undertake to exag-
gerate such claims. I am also mindful of the fact that Devoe, in his
employment application, falsely claimed that he had worked for var-
ious employers in the Los Angeles area for a longer length of time
than was actually the case. Nevertheless, each of the aforenamed em-
ployees appeared to be credible and to have an accurate recollection
of the events, and frankly responded with answers that were some-
times adverse to their interests. I was impressed with their apparent
candor and forthrightness in describing the incidents herein.
organizers in the presence of the assembled employees. Such
conduct clearly has an inhibiting effect on employees’ will-
ingness to accept union material from representatives, and to
engage in other forms of union activity. See Sunbelt Mfg.,
308 NLRB 780 (1992); Farm Fresh, 305 NLRB 882 (1991);
Barnes Hospital, 217 NLRB 725, 727–728 (1975). By such
conduct the Respondent has violated Section 8(a)(1) of the
Act as alleged.
I further find that Chiu, during the July 12 union visit,
handed Gomez a bullet and told him that the next time he
appeared at the plant the bullet would be in his body; and
further, that Chiu instructed Supervisor Su to go into the
plant and get a gun. I find that Su did as he was instructed,
and produced the handgun in order to intimidate the union
representatives and cause them to discontinue their orga-
nizing efforts. Further, I find that Su, who did not testify in
this proceeding, did puncture the tires of Hernandez’ van
with a knife. While it is admitted that at least one ceramic
cup was thrown at Chiu by one of the union representatives,
I find that this was a defensive or spontaneous act under-
taken as the union representatives were attempting to leave
the scene, provoked by the Respondent’s prior conduct, and
does not excuse the Respondent’s egregious behavior. There-
after, employees of the Respondent were made aware of the
incident both by Supervisor Delapaz, who advised Amezquita
and Devoe of the threats to the union representatives, and by
Union Representative Hernandez’ July 16 announcements to
the employees, accompanied by a handbill, outlining the Re-
spondent’s behavior.4
I credit Devoe and Amezquita and find that following the
July 12 confrontation outside the Respondent’s premises,
Foreman Delapaz reported to them that Chiu and Su had in-
timidated the union representatives by displaying a handgun
and by puncturing the tires of their vehicle. As the potential
of physical injury or property damage to union representa-
tives would certainly tend to deter employees from them-
selves engaging in union activity, and as such unlawful con-
duct is fairly encompassed within the complaint allegation
that Delapaz ‘‘threatened employees with physical harm if
they supported or assisted the Union,’’ I find that by such
conduct the Respondent has also violated Section 8(a)(1) of
the Act.
The record evidence shows that the alleged excessive talk-
ing by Amezquita, Devoe, and Guerrero coincided with the
Union’s attempts to organize the employees. Each of the
aforementioned employees were interviewed by television
channel 52, their interviews were aired on the local news the
evening of July 16, and the Respondent’s owner, Chiu, was
made aware that each of them, either explicitly or by clear
implication, voiced a preference for the Union. Thereafter,
according to the testimony of Amezquita, whom I credit,5
Guerrero’s work station was moved from the basement to the
first floor, and Amezquita and Devoe, whom I also credit,
were closely observed by various supervisors. Further,
Amezquita, who was only 3-1/2 months pregnant at the time,
and who had not complained about the work which she was
accustomed to performing, was relegated to the basement and
was prohibited from performing her regular duties which re-
quired her to walk to other areas of the factory and interact
with other employees. Finally, on July 22, within a week of
their television interviews, the three employees were concur-
rently discharged.
A common thread running through the alleged rationale
for their discharges is the Respondent’s contention that they
refused to curtail their excessive talking, even after constant
warnings by Supervisor Arrigoni. It is highly unlikely that
employees would simply ignore such alleged clear and re-
peated warnings by a high-level supervisor with the authority
to discharge them for insubordination, and I find that, in fact,
the employees talked no more than was customary, and re-
ceived no such warnings. In addition, as noted above, Guer-
rero was separated from Amezquita and Devoe, the employ-
ees’ activities were kept under close scrutiny, and Amezquita
was not permitted to have any contact with other employees.
Under these circumstances it is reasonable to presume that,
following their expressions of solidarity with the Union’s ob-
jectives, any talking amongst themselves or with other em-
ployees whatsoever was deemed to be unacceptable and was
viewed by the Respondent as conspiratorial and supportive of
the Union, and that the Respondent’s ‘‘excessive talking’’
terminology is merely a euphemism for ‘‘union activity.’’
On the basis of the foregoing, given the admitted antipathy
toward the Union by Chiu, his knowledge of the employees’
stated preference for the Union, and the timing of and the
unconvincing and discredited reasons presented in support of
the Respondent’s discharges of the employees, I conclude
that Amezquita, Devoe, and Guerrero were discharged be-
cause of their known support for and activities on behalf of
the Union, and that such discharges were therefore violative
of Section 8(a)(3) of the Act as alleged.
Preciado, a friend of Amezquita, who would frequently
have lunch with her, was also discharged on July 22. The in-
cident which allegedly precipitated the discharge occurred on
July 18, at which time Foreman Delapaz warned Preciado
that he would be discharged if he again engaged in such con-
938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
duct, namely, the inadvertent placing of a shipping label on
a box which would have caused the box to be shipped by
land rather than air. The next day, July 19, while Amezquita
and Preciado were talking, Supervisor Su walked by on two
occasions and observed their conversation. This was during
a time, as I have found, when Amezquita’s activities were
kept under observation.
The testimony of Chiu makes it clear that he was very sus-
picious of Preciado’s conduct. He believed that Preciado had
been instigated by others to mislabel the box, and that it was
an intentional act intended to cause the Respondent financial
loss. Further, Preciado was discharged only after being given
the opportunity to identify the person or persons who caused
him to engage in this alleged misconduct. Thus, Chiu testi-
fied to his belief that Preciado was not acting on his own,
and that he refused to tell the truth about the incident and
implicate the other responsible parties.
It is clear that at the time Chiu was attempting to ascertain
Preciado’s motivation for mislabeling the box, which Chiu
deemed to be intentional, he was also involved in the process
of effectuating the discharge of Amezquita, Devoe, and
Guerrero for their union activity, as found above; and
Preciado was discharged on the same day as the aforemen-
tioned employees. There is no evidence that Chiu was con-
cerned with alleged subversion or obstructionist tactics from
any source other than the Union, which Chiu admittedly
deemed to be a subversive and deceitful organization.
In the absence of any evidence by the Respondent that its
suspicions regarding Preciado’s motivation for applying the
label to the box were unrelated to the Union’s organizing
campaign or the union activity of the other employees, I con-
clude from the foregoing circumstances that the record evi-
dence demonstrates that Chiu believed that Preciado was act-
ing in concert with the Union or with the employees who
were simultaneously discharged along with Preciado. Further,
I credit Preciado’s testimony that his placement of the sticker
on the box was spontaneous and heedless, but was not an act
designed to cause the Respondent any economic injury; and
it is reasonable to conclude that the immediate warning by
Foreman Delapaz not to let this happen again, and the fact
that Preciado was not discharged until some 4 days later, in-
dicates that Preciado’s conduct was not considered to be im-
mediate grounds for dismissal. Accordingly, I find that the
credible record evidence shows that Preciado was discharged
in violation of Section 8(a)(3) of the Act because of his close
association with Amezquita, coupled with the Respondent’s
mistaken belief that Preciado was collaborating with the
Union to cause the Respondent economic injury.
Espinosa was discharged on July 26, 4 days after the other
discriminatees herein. He too signed a union membership
card, and was known to be a close friend of Preciado, as the
two of them would walk to and from work together. Further,
Espinosa sometimes worked in the basement, and had occa-
sion to speak with Amezquita. Chiu’s express motivation for
discharging Espinosa is revealing. Thus, after listing various
alleged work deficiencies, Chiu stated that while Espinosa, a
relatively long-time employee who had the position of lead
man in his department, was very smart and could be a good
worker, he became lazy and did not concentrate on his work,
and ‘‘always went down to the basement and talked to peo-
ple there.’’ I have generally not credited Chiu, and there is
no testimony from any of Espinosa’s supervisors regarding
his alleged work deficiencies. Further, whatever Espinosa’s
work deficiencies, the record shows that the Respondent had
been tolerant of them in the past, and Chiu’s testimony indi-
cates that Espinosa’s talking with the employees in the base-
ment was a significant factor in the Respondent’s decision to
terminate him.
Given Espinosa’s known close association with Preciado,
and his alleged talking with people in the basement, all of
whom were unlawfully discharged just 4 days before, I con-
clude that the record evidence demonstrates that Espinosa
was also discharged because of his association with such em-
ployees and therefore, because of his suspected activity on
behalf of the Union. Accordingly, I conclude that Espinosa
was unlawfully discharged in violation of Section 8(a)(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 engaging in surveillance of employees’ union activities,
and by coercively discouraging employees from engaging in
union activities.
4. The Respondent has violated Section 8(a)(3) and (1) of
the Act by discharging employees Maria Amezquita, James
Devoe, Julio Guerrero, and Luis Carlos Preciado on July 22,
1991, and by discharging employee Gustavo Espinosa on
July 26, 1991, because of their activities, or suspected activi-
ties, on behalf of the Union.
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 in any other manner interfering with, re-
straining, 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 notice, attached here-
to as ‘‘Appendix.’’ (Omitted from publication.)
Having found that the Respondent unlawfully discharged
the aforenamed employees, I recommend that it offer them
immediate and full reinstatement, 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 dis-
crimination against them. Backpay is to be computed in ac-
cordance with the Board’s decision in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as prescribed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
939RAINBOW GARMENT CONTRACTING
7 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.’’
ORDER
The Respondent, Rainbow Garment Contracting, Inc., Los
Angeles, California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Engaging in surveillance of employees union activities.
(b) Coercively discouraging employees from engaging in
union activity by advising them that the Respondent has con-
fronted the union representatives with a handgun and has
punctured the tires of their vehicle.
(c) Discharging employees because of their activities or
suspected activities in support of the Union.
(d) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of rights guaranteed to them
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to employees Maria Amezquita, James Devoe,
Julio Guerrero, Luis Carlos Preciado, and Gustavo Espinosa
immediate and full reinstatement to their former positions of
employment, without prejudice to their seniority or other
rights and privileges previously enjoyed, and make them
whole for any loss of pay or benefits suffered by reason of
the discrimination against them, in the manner described
above in the remedy section.
(b) Preserve and, on 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 ana-
lyze the amount of backpay due under the terms of this rec-
ommended Order.
(c) Post at its Los Angeles, California facility copies of the
attached notice marked ‘‘Appendix.’’7 Copies of the notice,
on forms provided by the Regional Director for Region 21,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.