World Fashion

National Labor Relations Board - Board Decisions

Mar 8, 1996

320 N.L.R.B. 922 (N.L.R.B. 1996)

922
320 NLRB No. 90
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On October 20, 1995, the judge issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The judge inadvertently failed to specify in his recommended
Order and notice that the reinstatement offers to the unlawfully laid-
off or discharged employees shall be immediate. He also inadvert-
ently failed to include the standard provision in the Order requiring
the Respondent to provide the Regional Director written notice of its
compliance. We have amended the Order and notice accordingly.
World Fashion, Inc. and Garment Workers’ Justice
Center, International Ladies’ Garment Work-
ers’ Union, Western States Region, AFL–CIO.
Case 21–CA–29600
March 8, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
Administrative Law Judge Frederick C. Herzog has
found that the Respondent violated Section 8(a)(3) and
(1) of the Act by discharging five employees and that
the Respondent violated Section 8(a)(1) of the Act by
interrogating employees about union activities, instruct-
ing employees not to talk to union adherents, and
threatening to discharge employees for their union ac-
tivities.1 The Respondent does not contest the unfair
labor practice findings in its exceptions, but it contends
that it is not now an employer and that certain individ-
uals are not now its supervisors or agents because it
allegedly went out of business in 1994.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions, and to adopt the recommended Order as
modified.2 We note that the Respondent will have the
opportunity in compliance proceedings to litigate the
remedial consequences, if any, of its alleged cessation
of operations.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, World
Fashion, Inc., Los Angeles, California, 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).
‘‘(a) Rescind the unlawful layoffs and discharges of
employees Santiago Rodriguez, Ramiro Rodriguez,
Jose´ Alonzo Jiminez, Alma Aleman, and Jose´ Luis
Mora Rodriguez, and offer each of them immediate,
full, and unconditional reinstatement to their former
positions of employment or, if those positions no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and
privileges previously enjoyed, and make them whole
for all loss of earnings and other benefits suffered as
a result of the discrimination against them, with inter-
est, as set forth in the remedy section of the judge’s
decision.’’
2. Insert the following as paragraph 2(e).
‘‘(e) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.’’
3. 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 interrogate employees concerning
their own or other employees’ union activities.
WE WILL NOT instruct employees not to talk to fel-
low employees who are known to be supporters of
Garment Workers’ Justice Center, International Ladies’
Garment Workers’ Union, Western States Region,
AFL–CIO or any other labor organization.
WE WILL NOT threaten employees with discharge be-
cause of their union or other protected concerted ac-
tivities.
WE WILL NOT discharge employees because of their
union or other protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL rescind our unlawful layoffs and dis-
charges of Santiago Rodriguez, Ramiro Rodriguez,
Jose´ Alonzo Jiminez, Alma Aleman, and Jose´ Luis
Mora Rodriguez, and offer each of them immediate,
full, and unconditional reinstatement to their former
positions of employment with us, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed or, if those positions no longer exist,
to substantially equivalent positions, and WE WILL
make them whole for any loss of earnings and other
923WORLD FASHION
1 Sec. 8(a)(1) of the Act provides that, ‘‘It shall be an unfair labor
practice for an employer . . . to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in section 7
. . . .’’
Sec. 7 of the Act provides that, ‘‘Employees shall have the right
to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, and shall also have
the right to refrain from any or all such activities except to the ex-
tent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as au-
thorized in section 8(a)(3).’’
2 Sec. 8(a)(3) of the Act provides that, ‘‘It shall be an unfair labor
practice for an employer . . . by discrimination in regard to hire or
tenure of employment or any term or condition of employment to
encourage or discourage membership in any labor organization.’’
3 In light of the fact that a number of the witnesses, or persons
referred to in the record, have names which are similar to other per-
sons referred to by the record I have erred on the side of avoiding
error, and have referred to all persons by their full names. (There
were four Kangs, two Rodriguezes, two Almas, two Moras, two
Jose
´
s, one Pepa, and one Pepe.)
4 Respondent attempted to withdraw from its judicial admission
that it discharged these employees. This matter is dealt with below.
5 Despite this failure, I consider possible defenses below.
benefits suffered as a result of the discrimination
against them, with interest.
WE WILL expunge from our files any references to
the unlawful layoffs and discharges of Alma Aleman
and Jose
´
Luis Mora Rodriguez on August 27, 1993,
and of Santiago Rodriguez, Ramiro Rodriguez, and
Jose
´
Alonzo Jiminez on July 13, 1993, and WE WILL
inform these employees that this has been done, and
that these unlawful actions will not be used against
them in any manner in the future.
WORLD FASHION, INC.
Jean C. Libby, Esq., for the General Counsel.
Thomas M. Comparet, Esq., of Los Angeles, California, for
the Respondent.
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge. This
case was heard by me in Los Angeles, California, on Decem-
ber 20, 1994, and is based on a charge filed by the Garment
Workers’ Justice Center, International Ladies’ Garment
Workers’ Union, Western States Region, AFL–CIO (the
Union) on September 3, 1993, alleging generally that World
Fashion, Inc. (Respondent) committed certain violations of
Section 8(a)(1) and (3) of the National Labor Relations Act,
29 U.S.C. § 51 et seq. (the Act). On June 29, 1994, the Re-
gional Director for Region 21 of the National Labor Rela-
tions Board (the Board) issued a complaint and notice of
hearing alleging violations of Section 8(a)(1)1 and (3)2 of the
Act.
Respondent thereafter filed a timely answer to the com-
plaint, denying all wrongdoing. As to the first allegation, Re-
spondent asserts that Ramiro Rodriguez,3 Santiago
Rodriguez, and Jose
´
Alonzo Jiminez, if they were discharged
at all,4 were discharged for economic reasons, or ‘‘were ter-
minated due to their refusal to accept the new piece work
rate.’’ As to the second allegation, Respondent asserts that
Jose
´
Luis Mora Rodriguez and Alma Aleman were termi-
nated ‘‘along with others, for lack of work and need for their
services.’’ Finally, Respondent has not addressed the separate
8(a)(1) allegations, beyond a general denial of wrongdoing.5
All parties appeared at the hearing and were given full op-
portunity to participate, to introduce relevant evidence, to ex-
amine and cross-examine witnesses, to argue orally, and to
file briefs. Based on the record, my consideration of the
briefs filed by counsel for the General Counsel and counsel
for Respondent, and my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, and the Respondent admits, that the
Respondent is a California corporation, with an office and
place of business in Los Angeles, California, where at all
times material it has been engaged in the business of sewing
garments in the apparel and clothing industry; and that dur-
ing the 12-month period ending on June 29, 1994, and in the
course and conduct of its business operations, it performed
sewing services valued in excess of $50,000 for enterprises
located within the State of California, each of which during
the same period of time sold and shipped goods valued in
excess of $50,000 directly to points outside the State of Cali-
fornia.
Accordingly, I find and conclude that the Respondent is
now, and at all times material has been, an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
the Union is now, and at all times material has been, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges
1. That Ramiro Rodriguez, Santiago Rodriguez, and Jose
´
Alonzo Jiminez were discharged on July 13, 1993, because
they engaged in protected concerted activities, and that their
discharges were designed to discourage employees from en-
gaging in concerted activities in violation of Section 8(a)(1)
of the Act.
2. That on or about August 27, 1993, Respondent termi-
nated Jose
´
Luis Mora Rodriguez and Alma Aleman because
of their union activities, to discourage membership in a labor
organization in violation of Section 8(a)(1) and (3) of the
Act.
3. And that during July and August of 1993, Respondent
committed three additional violations of Section 8(a)(1),
which interfere with, restrain, and coerce employees in the
924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 This history of collective complaint about wages was admitted by
Sun Alma Kang in her testimony:
JUDGE HERZOG: Do you remember them complaining more
than once?
THE WITNESS: Yes.
JUDGE HERZOG: Do you remember one of them being the
spokesman or the person who spoke the most?
THE WITNESS: They are talking together, always.
JUDGE HERZOG: Did any one of them speak more, or did all
of them tend to speak?
THE WITNESS: Is the same.
JUDGE HERZOG: Can you recall any of the subjects that they
complained about?
THE WITNESS: Most of the problem is the price. 7 Sun Alma Kang testified only that she ‘‘didn’t see it happen.’’
exercise of rights guaranteed in Section 7 of the Act in viola-
tion of Section 8(a)(1) of the Act.
B. Supervisors and Agents
The complaint alleges, the Respondent admits, and I find
that, at all times material, Sun Alma Kang, Pepe Kang, and
Pepa Kang have been, and are now, supervisors of Respond-
ent within the meaning of Section 2(11) of the Act and
agents of the Respondent within the meaning of Section
2(13) of the Act. In addition, John Kang admitted having re-
sponsibility for making firing and disciplinary decisions
about employees. This admission was confirmed by docu-
mentation in Respondent’s exhibits.
Therefore, I find that, at all times material, Sun Alma
Kang, Pepe Kang, Pepa Kang, and John Kang have been,
and are now, supervisors of Respondent within the meaning
of Section 2(11) of the Act and agents of Respondent within
the meaning of Section 2(13) of the Act.
C. The Discharges of Ramiro Rodriguez, Santiago
Rodriguez, and José Alonzo Jiminez
Ramiro Rodriguez testified that prior to being discharged
in July 1993, he had worked for Respondent since 1988.
In 1991, Ramiro Rodriguez became involved in union ac-
tivities through the Garment Worker’s Justice Center, which
is sponsored by the International Ladies’ Garment Workers’
Union. Part of this involvement consisted of attending union
meetings on Wednesday afternoons. The meetings were typi-
cally also attended by seven or eight other employees of the
Respondent. Throughout his tenure with Respondent, Ramiro
Rodriguez often met with the supervisors, sometime alone,
but often with others, to complain about the piece rates
which employees were receiving. His involvement with the
Union was sometimes mentioned in a hostile tone by the Re-
spondent’s supervisors during these meetings.6
On several occasions these meetings were followed by col-
lective work stoppages, during which several workers would
stand at their machines without working for approximately
an hour at a time. Usually these stoppages would simply end
by the employees’ mutual agreement, and the employees
would return to their assigned work. On three occasions,
however, in retaliation for these work stoppages, Respondent
disabled the employees’ machines and sent protesting em-
ployees home. Employees were sent home under these cir-
cumstances in 1988, 1991, and finally in 1993. So far, how-
ever, as is shown by the record, no charges were filed con-
cerning these incidents.
After the 1988 and 1991 incidents the employees were
quickly called back to the factory. For example, after the
1991 incident, Ramiro Rodriguez returned to work the next
day because Pepe Kang called Ramiro Rodriguez at home
and said that ‘‘there was no problem, I could go back to
work.’’ Respondent’s failure to call Pepe Kang to testify
about these events leaves this testimony uncontradicted. Fur-
ther, despite Sun Alma Kang’s denial of any knowledge of
these events,7 this history of work stoppages and subsequent
employer actions is uncontested.
The last such collective work stoppage occurred on July
13, 1993. On that date, Ramiro Rodriguez, Santiago
Rodriguez, Jose
´
Alonzo Jiminez, and four other employees
met with Sun Alma Kang in her office for about 20 minutes
to protest the piece rate offered by the Respondent. Sun
Alma Kang told the employees that she could not negotiate
the rate because her computer wasn’t working and she there-
fore could not look up previous piece rates.
The evidence as to what occurred after Sun Alma Kang
made these statements diverges.
Ramiro Rodriguez testified that Sun Alma Kang then told
the employees that if they didn’t want to do the job they
could go home. Ramiro Rodriguez responded that he
couldn’t go home, and that he needed a higher piece rate.
She then repeated her previous statement to the effect that
if they didn’t want to do the job they could go home. Ramiro
Rodriguez, Santiago Rodriguez, and Jose
´
Alonzo Jiminez
then left Sun Alma Kang’s office and ‘‘stood’’ by their ma-
chines for about 20 minutes. Ramiro Rodriguez testified that
at this point, ‘‘Pepe came [in] very angry, yelling at us, and
he removed the thread from the machines and broke the ma-
chines and fired us.’’
Q. What did you say to him?
A. (Through Interpreter) Nothing. We left.
Q. When you say he fired you, what did he say to
you?
A. ‘‘He [Pepe] said we were too crazy and to go
home’’
Q. Tell us again, in more detail, what did he do to
your machine?
A. (Through Interpreter) He removed the thread or
broke the threads. He removed some of the pieces so
the machine wouldn’t work, and disconnected them.
Ramiro Rodriguez noted that he did not request to return
to work after this incident. When asked why, Ramiro
Rodriguez stated that, having been fired, Respondent would
have to call him prior to his being able to return, but that
it had not done so.
In contrast to the above testimony, Sun Alma Kang stated
that Ramiro Rodriguez, Santiago Rodriguez, and Jose
´
Alonzo
Jiminez told her that they ‘‘cannot make it,’’ suggesting to
her that they would not agree to do the work at the lower
piece rate. Thereafter, these employees walked out of her of-
fice and stood outside for a brief time. After talking to each
other they returned to her office and told her that they want-
ed to go to the unemployment office.
Despite Sun Alma Kang’s testimony, however, John Kang
later admitted having discharged these employees. In his tes-
timony, John Kang said that he had earlier decided to dis-
925WORLD FASHION
8 Sec. 2(9) of the Act defines a labor dispute as ‘‘any controversy
concerning terms, tenure or conditions of employment.’’ Sec. 2(3) of
the Act defines ‘‘employee’’ to include employees whose work has
ceased due to a labor dispute.
charge these employees after Sun Alma Kang informed him
that employees were unwilling to work at the going piece
rate. John Kang stated that the reason he discharged them
was because ‘‘the price they were asking, I couldn’t pay, and
. . . if I lose my due date, which I promise the customer I
finish the product by then, I lose everything. I can’t get paid
. . . I didn’t want that to happen. So if they can’t do it for
me I have to find someone that could do it.’’
Given Ramiro Rodriguez credible testimony regarding
being fired and the history of work stoppages and employer
reactions, Respondent’s failure to call Pepe Kang to testify
about his alleged disabling of the machines, and Sun Alma
Kang’s unconvincing denial of these events, I find that on
July 13, 1993, Pepe Kang disabled the machines of Ramiro
Rodriguez, Santiago Rodriguez, and Jose
´
Alonzo Jiminez,
told them to go home, and fired them.
Counsel for the General Counsel argues that Santiago
Rodriguez, Ramiro Rodriguez, and Jose
´
Alonzo Jiminez were
fired on July 13, 1993, for engaging in a protected work
stoppage, and that they were not permitted to continue work-
ing at Respondent’s facility thereafter.
Respondent argues that Santiago Rodriguez, Ramiro
Rodriguez, and Jose
´
Alonzo Jiminez voluntarily terminated
their own employment with Respondent and, therefore, were
not terminated for a proper work stoppage protest. The Re-
spondent argues in the alternative that, even if these employ-
ees were terminated, they were ‘‘terminated due to their re-
fusal to accept the piece work rate.’’
Respondent’s primary argument that Santiago Rodriguez,
Ramiro Rodriguez, and Jose
´
Alonzo Jiminez voluntarily ter-
minated their employment is contradicted by Respondent’s
judicial admissions. In particular, the complaint, at paragraph
7(a), states that:
About July 13, 1993, Respondent discharged employees
Santiago Rodriguez, Ramiro Rodriguez, and Jose
´
Alonzo Jiminez.
During the hearing, when questioned about the meaning of
omissions and/or ambiguities in the Respondent’s answer to
the complaint, Respondent’s counsel stated as follows, con-
cerning this allegation:
JUDGE HERZOG: Paragraph 7(a) is to be admitted by
Respondent.
MR. COMPARET: Correct, Your Honor.
Accordingly, Respondent’s argument on brief that Santiago
Rodriguez, Ramiro Rodriguez, and Jose
´
Alonzo Jiminez had
‘‘already decided to voluntarily terminate their employ-
ment,’’ will be disregarded, as it is clearly an attempt to un-
fairly raise an argument previously waived by Respondent’s
judicial admission.
Regardless of Respondent’s counterargument, however, the
primary question here is whether the discharge violated Sec-
tion 8(a)(1) of the Act, as alleged.
Under long-established legal principles, employees who
engage in a peaceful work stoppage to protest unacceptable
terms or conditions of employment are engaged in protected
concerted activity within the meaning of Section 7, and a
labor dispute with the meaning of Section 2(9) and Section
2(3) of the Act.8 NLRB v. Washington Aluminum Co., 370
U.S. 9 (1962). Therefore, employers who discharge workers
for engaging in this type of protected activity violate Section
8(a)(1) of the Act. NLRB v. Washington Aluminum Co., ibid.;
Quality C.A.T.V., 278 NLRB 1282 (1986); Cristy Janitorial
Service, 271 NLRB 857 (1984); Go-Lightly Footwear, 251
NLRB 42 (1980).
Further, this same result can be derived by using the
Board’s general 8(a)(1) test, as enunciated in Meyers Indus-
tries, 268 NLRB 493 (1985). Under this test, the General
Counsel succeeds in demonstrating a prima facie case that an
employer has violated Section 8(a)(1) when evidence shows
that:
1. The employee has engaged in concerted activity
(acting with or on the authority of other employees).
2. The employer knew of the concerted nature of the
activity.
3. The concerted activity was protected by the Act.
4. The adverse employment action was motivated by
the employee’s protected concerted activity.
Id. at 497 fn. 23 (1984), remanded sub. nom. Prill v. NLRB,
755 F.2d 941 (D.C. Cir. 1985), reaffd. 281 NLRB 882
(1987); Morton International, 315 NLRB 564 (1994).
There is no question that counsel for the General Counsel
has met the first requirement that the activity be concerted.
This is amply demonstrated by Sun Alma Kang’s admission
that seven employees simultaneously came to her office as
a group to protest the piece rate. After leaving the meeting
three of these employees immediately engaged in a simulta-
neous work stoppage. Therefore, this case presents a clear
example of employees acting together to deal with their em-
ployer when seeking to improve their wages. Such actions
are obviously at the very core of concerted activity.
In addition, counsel for the General Counsel has dem-
onstrated that Respondent had knowledge of the concerted
nature of the activity. As shown just above, Respondent read-
ily admitted that a number of workers were involved in a
meeting with Supervisor Sun Alma Kang, and that the sub-
ject of the meeting was the effort of the employees to de-
mand higher piece rates. Throughout Sun Alma Kang’s testi-
mony she continually referred to this group of employees
with the pronoun ‘‘they,’’ showing that she, herself, viewed
the employees as a group acting collectively. Nor is there
any question that following the meeting some of the employ-
ees were seen by Respondent’s agents simply standing by
their machines, rather than working. Finally, Respondent re-
acted to the ensuing work stoppage by simultaneously dis-
charging a group of three employees.
In each instance just cited, Respondent was shown to have
observed first hand the activities of its employees as they en-
gaged in protected, concerted activities. Therefore, I find that
Respondent had knowledge of the concerted nature of the ac-
tivity.
Because the protest pertained to wages, each of the activi-
ties is clearly within Section 2(9)’s definition of a labor dis-
pute, which includes ‘‘any controversy concerning terms,
926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tenure or conditions of employment.’’ NLRB v. Washington
Aluminum Co., supra at 15.
The law has long been clear that, barring an infringement
on the employer’s private property rights (an element not
even claimed to be present in this case, because the evidence
is clear that the employees promptly and peacefully left when
told to do so), this type of concerted activity is fully entitled
to protection under the Act. NLRB v. Washington Aluminum
Co., ibid. at 15; Hundgens v. NLRB, 424 U.S. 507, 522
(1976); NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112
(1956); Cambro Mfg. Co., 312 NLRB 634 (1993); United
Enviro Systems, 301 NLRB 942 (1991).
Finally, it appears clear that the discharge of these em-
ployees was motivated by the employees’ protected activities.
Motivation can be demonstrated by the timing of discharges
soon after a work stoppage. City Dodge Center, 289 NLRB
194 (1988); Goebert Mechanical Corp., 302 NLRB 185
(1991). NLRB v. Rain-Ware, Inc., 732 F.2d 1349 (7th Cir.
1987). Timing alone may suggest antiunion animus as a mo-
tivating factor in an employer’s action. In this case the dis-
charge occurred during a work stoppage, making an ex-
tremely clear demonstration that the employees’ protected ac-
tivity, i.e., the stoppage, was the cause of the discharge.
Therefore, counsel for the General Counsel has succeeded in
establishing a prima facie violation of Section 8(a)(1) of the
Act.
Once a prima facie case of discrimination has been estab-
lished, the burden shifts to the Respondent to establish that
these employees would have been discharged regardless of
the discrimination. See discussion of Wright Line, infra. To-
wards this goal, Respondent’s closing brief relies primarily
on the argument that Santiago Rodriguez, Ramiro Rodriguez,
and Jose
´
Alonzo Jiminez voluntarily quit, and were, there-
fore, not discharged at all. As I have found above, however,
this argument is contrary to Respondent’s admissions, and
should be disregarded for that reason. Moreover, any such ar-
gument is inconsistent with virtually all the testimony given
at trial, including that of Respondent’s witnesses.
Alternatively, Respondent put forth the argument that even
if these employees were terminated, they were ‘‘terminated
due to their refusal to accept the piece work rate.’’
First of all, it has been demonstrated that Santiago
Rodriguez, Ramiro Rodriguez, and Jose
´
Alonzo Jiminez were
engaged in concerted activity, protected under the Act.
Therefore, Respondent’s argument that Santiago Rodriguez,
Ramiro Rodriguez, and Jose
´
Alonzo Jiminez ‘‘were termi-
nated due to their refusal to accept the new piece work
rate,’’ even if taken as true, would not be a defense. Instead,
it serves as an admission by Respondent to a violation of
Section 8(a)(1) of the Act.
But, even more important, there is not a shred of evidence
to support the statement. The only evidence in the record is
to the effect that during a protected work stoppage employ-
ees were informed that they were fired, and given the choice
of abandoning their protected work stoppage or going home.
Simultaneously, their machines were disabled by the Re-
spondent. Under such circumstances, the offenses were com-
plete when they were told they were fired, and given an ille-
gal choice to make. Thus, it makes no difference legally that
they did not thereafter seek reemployment. Nevertheless, the
fact that Respondent made no effort to have the employees
return to their work, unlike its practice in the past, serves
only to reinforce the conclusions I have reached above.
Therefore, I find that Respondent has failed to present any
persuasive evidence or argument that the employees would
have been discharged regardless of the demonstrated pro-
tected concerted activities.
Accordingly, I also find that Respondent violated Section
8(a)(1) of the Act by discharging Santiago Rodriguez,
Ramiro Rodriguez, and Jose
´
Alonzo Jiminez, and I shall
order an appropriate remedy therefor.
D. The Discharges of José Luis Mora Rodriguez and
Alma Aleman
Jose
´
Luis Mora Rodriguez and Alma Aleman began work-
ing for Respondent in April and May 1992, respectively.
Both employees had been involved with the Union as early
as August 1992, and had attended weekly union meetings,
occasionally leaving work earlier than usual to do so. Re-
spondent, specifically Pepa Kang, understood that these
meetings had to do with the Union, and Jose
´
Luis Mora
Rodriguez was uncontradicted in his testimony that Super-
visor and Owner Pepa Kang would tease the workers by ask-
ing them if they ‘‘were going to the Center where [they]
would see [their] mothers, Adriana and Isaura [Lucero, union
organizers].’’
During the hearing Respondent presented what it claimed
was a warning to Jose
´
Luis Mora Rodriguez, dated Novem-
ber 23, 1992. By this warning, signed by John Kang, Jose
´
Luis Mora Rodriguez was alleged to have been ‘‘disobeying
orders given by the owner and the manager,’’ to have en-
gaged in ‘‘disrespectful conduct by throwing [a] bundle of
pants at the owner,’’ and having his wife punch his timecard
when he was not at the factory. John Kang testified that
when he confronted Jose
´
Luis Mora Rodriguez with this
warning that Jose
´
Luis Mora Rodriguez told him that ‘‘he is
going to bring trouble to my place.’’ Jose
´
Luis Mora
Rodriguez denied any knowledge of any warning, denied
throwing anything at the owner, and denied ever having his
wife punch his timecard, all in credible fashion.
Around that same time, Jose
´
Luis Mora Rodriguez con-
tacted Isaura. Isaura Lucero testified that she spoke several
times, as early as November 24, 1992, to Respondent’s rep-
resentatives about labor matters involving Jose
´
Luis Mora
Rodriguez and Alma Aleman. Isaura Lucero said that she
told Pepa Kang and Pepe Kang that the purpose of the No-
vember 24, 1992 meeting was to stop the harassment which
Jose
´
Luis Mora Rodriguez and Alma Aleman were allegedly
receiving (especially on union meeting days), as well as to
stop their being prevented from talking to other workers.
During this meeting Isaura Lucero testified she then gave
Pepa Kang and Sun Alma Kang a letter which stated that:
The International Ladies Garment Workers
Union/Justice Center, has been informed that you are
unlawfully discriminating against Mr. Jose
´
Luis Mora
Rodriguez, Mrs. Alma Aleman and Benito Crisanto, be-
cause of their Justice Center membership and activities.
I find from the above testimony, which I found to be cred-
ible, that Respondent was well aware that Jose
´
Luis Mora
Rodriguez and Alma Aleman were union sympathizers and
activists by November 1992.
927WORLD FASHION
As to the incident when Jose
´
Luis Mora Rodriguez alleg-
edly threw a bundle of pants at one of the supervisors, I find
this event to be too far removed in time from Jose
´
Luis Mora
Rodriguez’ and Alma Aleman’s terminations to convincingly
provide a rationale for Jose
´
Luis Mora Rodriguez’ eventual
discharge in August 1993.
In February 1993, Jose
´
Luis Mora Rodriguez was sus-
pended for 1 day shortly after the broadcast of a television
interview in which Alma Aleman and Jose
´
Luis Mora
Rodriguez discussed the conditions of garment workers.
Isaura Lucero credibly testified that when she talked to
Respondent about this, Respondent claimed that Jose
´
Luis
Mora Rodriguez had been suspended for refusing to do cer-
tain types of work. Jose
´
Luis Mora Rodriguez credibly testi-
fied that he was told to go home after he complained about
piece rates that had been offered. These versions of the meet-
ing are not incompatible. In fact, it appears to have been the
policy of Respondent to on occasion suspend, and in at least
one instance discharge, individual workers or groups of
workers who complained about piece rates for particular
jobs.
Jose
´
Luis Mora Rodriguez was laid off for 3 days because
of this incident. Jose
´
Luis Mora Rodriguez complained about
this layoff to the Union, which caused Isaura Lucero to go
to meet with Sun Alma Kang at the factory. At this meeting
Jose
´
Luis Mora Rodriguez’ layoff was discussed and Re-
spondent agreed to pay Jose
´
Luis Mora Rodriguez for 1 of
the 3 days of the layoff.
Isaura Lucero and Sun Alma Kang also discussed an inci-
dent involving a physical altercation between Jose
´
Luis Mora
Rodriguez and the Respondent. Regarding this incident, it is
clear that Alma Aleman’s work station was being photo-
graphed by Respondent for some unknown reason having to
do with Alma Aleman’s collection of aluminum cans. Alma
Aleman went to John Kang’s office to determine why this
had occurred. Jose
´
Luis Mora Rodriguez, apparently seeing
the events unfold from afar, headed toward John Kang’s of-
fice as well. When Alma Aleman arrived, John Kang had
asked his father, Pepe Kang, to leave the office. Pepe Kang
got to the door just when Jose
´
Luis Mora Rodriguez arrived.
John Kang testified that Jose
´
Luis Mora Rodriguez tried
to enter the office, and that Pepe Kang, who was blocking
the way, told Jose
´
Luis Mora Rodriguez not to come in. John
Kang said that Jose
´
Luis Mora Rodriguez then forced his
way into the office and escorted Alma Aleman out of the of-
fice. In support of Respondent’s version of the events, Re-
spondent presented a ‘‘Notice of Warning to Employee,’’
written for Jose
´
Luis Mora Rodriguez and dated February 10,
1993, for ‘‘repeatedly disobeying orders given to you and
showing disrespectful conduct and pushing the owner of this
company.’’ This document is not signed by Jose
´
Luis Mora
Rodriguez and the document states on its face that ‘‘Jose
´
Luis Mora Rodriguez refuse [sic] to sign.’’ It is, however,
signed by John Kang, who is listed as ‘‘supervisor,’’ and
Moreno Conception, who is listed as a ‘‘witness.’’
In contrast to the above testimony, Jose
´
Luis Mora
Rodriguez claimed that Pepe Kang and a ‘‘representative
from another company’’ grabbed him by his pants and shirt
and took him out of the office, ripping his shirt and pants
in the process. Jose
´
Luis Mora Rodriguez denied any wrong-
doing, and denied ever pushing Pepe.
Isaura Lucero testified that Respondent had asked Jose
´
Luis Mora Rodriguez to sign a blank warning sheet during
this time period, and that Sun Alma Kang admitted to this
during a meeting with Isaura Lucero. This seems in conform-
ance with Jose
´
Luis Mora Rodriguez’ denial of having ever
seen any such warning. In fact, it seems likely that the blank
warning sheet which Jose
´
Luis Mora Rodriguez would not
sign was later filled in and became an exhibit proffered by
Respondent. Isaura Lucero further testified that as a result of
her meeting with Sun Alma Kang, Respondent agreed to pay
Jose
´
Luis Mora Rodriguez for 1 day of Jose
´
Luis Mora
Rodriguez’ suspension and agreed not to give Jose
´
Luis
Mora Rodriguez a disciplinary warning.
Regarding this incident, I conclude neither Jose
´
Luis Mora
Rodriguez nor Respondent’s witnesses are fully credible. It
seems most likely to me that whatever physical contact oc-
curred in February was minor, and was viewed that way by
all parties at that time. Otherwise, it seems unlikely that an
incident of physical abuse, had it actually occurred, would
have gone unpunished at the time that it occurred. Uncontra-
dicted testimony by Isaura Lucero suggested that Respondent
had agreed to drop disciplinary actions against Jose
´
Luis
Mora Rodriguez regarding the incident. This seems to me to
be the most likely explanation for why Jose
´
Luis Mora
Rodriguez was allowed to continue in his position and why
he was paid for 1 of the 3 days for which he was suspended.
Therefore, Respondent’s use of this unsigned form to justify
its eventual discharge of Jose
´
Luis Mora Rodriguez in late
August is suspect, and raises an inference that Respondent
was seeking to magnify the disciplinary record of its em-
ployee. An employer’s distortion and magnification of an
employee’s deficiencies cast a deep shadow over a claim that
mere business judgment was involved in the employee’s ter-
mination. Postal Service, 256 NLRB 736, 738 (1981).
Respondent presented another alleged warning, dated Feb-
ruary 10, 1993, entitled ‘‘Notice of Warning’’ to Alma
Aleman for violating company policy by ‘‘repeatedly show-
ing disrespect and disobeying given orders.’’ The document
states on its face that ‘‘Alma Aleman doesn’t acknowledge
this incident,’’ is not signed by Alma Aleman, and Alma
Aleman testified that she never saw this document. The doc-
ument, however, is signed by John Kang as ‘‘supervisor’’
and Moreno Conception, who is listed as a ‘‘witness.’’
I find that Alma Aleman’s testimony was credible. It
seems likely to me that Respondent decided not to present
this ‘‘Notice of Warning’’ to Alma Aleman, and dropped any
thought it may have had of taking disciplinary action against
Jose
´
Luis Mora Rodriguez. Therefore, Respondent’s use of
this unsigned form to justify its eventual discharge of Jose
´
Luis Mora Rodriguez in late August is suspect, and results
in another inference unfavorable to Respondent. Postal Serv-
ice, ibid.
Up through August, Jose
´
Luis Mora Rodriguez continued
complaining about the piece rates. During this same period
Alma Aleman complained to the Union about Respondent’s
treatment of Jose
´
Luis Mora Rodriguez. In response, the
Union organized a meeting with Respondent. This meeting
apparently did not resolve the tension at the factory, and
after this meeting, Pepa Kang and Sun Alma Kang would
sarcastically tell Alma Aleman to ‘‘go and complain [to her]
mothers, Isaura Lucero and Adriana,’’ and would call her a
‘‘mucho loco corazon negro.’’ (A very crazy black heart.)
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 This sentence was clarified by the interpreters immediately after
this sentence shows up in the record. In the clarification, the word
‘‘go’’ appears.
10 Erroneously referred to at least one point in the record as her
cousin.
Also during this period, signaling rising tensions at the
factory, Alma Aleman testified without contradiction that
John Kang had gotten angry at her because of her complaints
about piece rates and had tossed a cone of thread at her
head. Alma Aleman complained about the incident to the
Union, which sent Isaura Lucero to intervene on Alma
Aleman’s behalf. Despite the obvious tensions arising at the
factory, I find that Respondent provided no credible evidence
that Jose
´
Luis Mora Rodriguez or Alma Aleman had received
written warnings, or that they were in any way deficient in
their employment duties.
Twice in August, Alma Aleman and Jose
´
Luis Mora
Rodriguez were interviewed on camera by television crews
regarding labor issues amongst garment workers.
The first of these television interviews occurred on August
12, 1993, and corresponded to Alma Aleman’s and Jose
´
Luis
Mora Rodriguez’ involvement in union demonstrations and
hearings held to publicize an alleged lack of minimum wage
adjustments in the piece rate garment industry. On the morn-
ing of August 12, Alma Aleman and Jose
´
Luis Mora
Rodriguez asked to get off work to run some errands and
were given permission by Pepa Kang. Both Jose
´
Luis Mora
Rodriguez and Alma Aleman then proceeded to participate in
a protest, a union organized demonstration. Further, Alma
Aleman gave testimony to the state agency and was inter-
viewed that day for television cameras.
The next day, August 13, Alma Aleman went to work late
that morning. On her way into the plant another employee
mentioned that she had seen Alma Aleman on television and
then proceeded to discuss the interview with Alma Aleman.
Alma Aleman testified that Pepe Kang was present and could
have heard this conversation. Later Alma Aleman saw Pepe
Kang talking with several other employees, who were look-
ing and pointing to her. Finally, when Alma Aleman was
leaving for the day Pepa Kang called her into his office and
Alma Aleman testified that Pepa Kang said, ‘‘There is no
more work for you. You are to [go] collect unemployment
benefits.’’9
Q. And what did you say to her?
A. (Through Interpreter) I said, ‘‘Why are you send-
ing me home when there is too much work?’’
Q. And what did she say?
A. (Through Interpreter) She said, ‘‘You are too
much problem. There is no more work.’’
Alma Aleman then asked Pepa Kang if she could complete
the work that she had started. Pepa Kang granted this request
and she began to finish this project the next day, August 14.
Alma Aleman worked regularly until August 20. More-
over, on August 23, she was called by her husband, at Pepa
Kang’s request, to repair some of her previous work, a task
which she began at 12:30 p.m. that day. On August 24, she
came to work to continue with the repairs. That evening she
was again interviewed on television about minimum wage
violations in the garment industry. On August 25, Alma
Aleman asked if she was to be paid for her time doing the
repairs, to which Sun Alma Kang responded ‘‘no,’’ because
‘‘all the workers had to repair the work that they do wrong
without pay.’’
Alma Aleman complained to Isaura Lucero of the Union
about not being paid for this work. Isaura Lucero then called
Sun Alma Kang to resolve this problem. That night Alma
Aleman was again filmed by television crews when she left
work. Alma Aleman was uncontradicted in her testimony that
this filming was seen by Pepa Kang, as she watched from
the door of the factory.
Alma Aleman continued working until she finished her as-
signments at 1 p.m. on August 27. At that point, Alma
Aleman and her husband,10 Jose
´
Luis Mora Rodriguez, and
well as two other women were called into Sun Alma Kang’s
office and discharged. Unlike the other women, Alma
Aleman testified that she and her husband were paid on the
spot. When she asked Pepa why she had been fired, Pepa
said that there was ‘‘no more work’’ and that that was the
reason the other two ladies were leaving as well.
Jose
´
Luis Mora Rodriguez stated that the Respondent
never told them that they should call back to see if work was
available. Regardless, Alma Aleman testified that she re-
turned to the factory soon after these events and asked Sun
Alma Kang for work. This request was not granted. Alma
Aleman testified that she also telephoned in September ask-
ing for work and was again denied reemployment. Jose
´
Luis
Mora Rodriguez, on the other hand, admits having never re-
turned or called about further employment.
On August 30, 1993, Isaura Lucero called to complain that
the two other women who were discharged with Jose
´
Luis
Mora Rodriguez and Alma Aleman, ‘‘Carmen’’ and
‘‘Imelda,’’ had already been rehired, although Jose
´
Luis
Mora Rodriguez and Alma Aleman were not rehired. To pro-
test this perceived injustice, the Union demonstrated in front
of the factory on September 17. Sun Alma Kang testified
that she thought that the other women’s names were
‘‘Maria’’ and ‘‘Delfina,’’ and that they were not rehired for
about 3 or 4 months. Respondent failed, however, to present
any documentary evidence in this regard.
I find that the Respondent’s failure to submit such evi-
dence to clarify the issue of when the other discharged em-
ployees were rehired raises an inference that the evidence
would have been unfavorable to it. For it is settled law that
failure to testify about a point which would normally elicit
a response, or failure of a party’s counsel to ask a witness
about an important point, raises an inference that the testi-
mony would have been unfavorable to the party. Advanced
Installations, 257 NLRB 845, 849 (1981). Further impairing
Respondent’s ability to successfully argue this point, I find
that Sun Alma Kang’s testimony was evasive on this issue.
Considering the contentiousness of the events that unfolded
shortly afterwards including a protest over the rehirings it
seems extremely unlikely that she would not be aware of the
date in which she rehired the other discharged employees.
On the contrary, I find that Alma Aleman’s testimony was
credible. Therefore, I find that the employees discharged
with Jose
´
Luis Mora Rodriguez and Alma Aleman were re-
hired within a few days of this discharge.
Respondent proffered two documents as evidence that
Alma Aleman and Jose
´
Luis Mora Rodriguez were dis-
929WORLD FASHION
11 John Kang testified that Respondent’s largest customer, Chero-
kee, went into Chapter 11 bankruptcy during late 1992, and went out
of business sometime in 1993. Further, John Kang said that Philipo,
Respondent’s second biggest customer, closed in 1993.
charged for lack of work or other nondiscriminatory reasons.
First, Respondent submits the unfilled unemployment insur-
ance claim forms in which Jose
´
Luis Mora Rodriguez and
Alma Aleman gave as reasons for leaving their jobs, ‘‘Me
descansarjo,’’ and ‘‘Falta de trabajo’’ (lack of work). Jose
´
Luis Mora Rodriguez explained that he responded in this
way because ‘‘that’s the reason they gave us for firing us.
They said there was no more work and go to the unemploy-
ment office.’’
John Kang, despite not being at the office that day, took
credit for the discharges and provided insightful testimony as
to the reason underlying the discharge of Jose
´
Luis Mora
Rodriguez and Alma Aleman, as he says that he decided in
June to fire them because of their ‘‘bad attitude[s].’’
JUDGE HERZOG: But you didn’t act on it until the
end of August?
THE WITNESS: Yes. Because, well, Alma, I would
talk to her and she would talk back to me. I talk to her
several occasions just one on one. I feel like may[be]
I could talk to her. To Jose
´
Luis Mora Rodriguez, I
refer to him as bad attitude. He always had bad attitude.
So I figure this guy is someone I can’t try to work out
with.
John Kang also testified that Alma Aleman’s discipline
problems consisted of her ‘‘complaining about the prices of
the majority of the goods that I need to produce.’’ Later
when asked why Sun Alma Kang had not called Jose
´
Luis
Mora Rodriguez and Alma Aleman back to work after their
discharges, he testified as follows:
THE WITNESS: Because things would be better with-
out them having working in my company.
JUDGE HERZOG: Could you tell the record why that
would be?
THE WITNESS: Because I feel that they were not
helping my company, but the opposite of that. They
were disrupting my business.
When asked to explain, John Kang testified that Jose
´
Luis
Mora Rodriguez ‘‘would go out of his way to cause prob-
lems for my company,’’ and ‘‘he was very difficult to work
with.’’ John Kang added that part of the difficulty was Jose
´
Luis Mora Rodriguez ‘‘was lagging.’’ Respondent, however,
provided no evidence of Jose
´
Luis Mora Rodriguez ‘‘lag-
ging,’’ nor did it present evidence as to warnings ever issued
concerning this alleged deficiency.
In contrast, Sun Alma Kang testified that she had had sev-
eral discussions about Alma Aleman dealing with what she
called ‘‘disciplinary problems.’’
Q. Do you remember what the disciplinary problems
were?
A. Sometimes they complain about price, sometimes
problem with slow, no work, and sometimes they com-
plain about bathroom is dirty, like this.
Q. Those were complaints that they were making
right?
A. Yes.
Q. Did you have discussions with Alma Aleman
about complaints that the company had with her per-
formance?
A. No.
I find John Kang’s testimony relating to Jose
´
Luis Mora
Rodriguez’ ‘‘lagging,’’ unconvincing. I credit, however, his
implicit admission that the November and February discipli-
nary actions against Jose
´
Luis Mora Rodriguez and Alma
Aleman did not play a central role in Jose
´
Luis Mora
Rodriguez’ and Alma Aleman’s discharges. Further, I accept
Sun Alma Kang’s testimony as an admission that Respondent
had at no time considered Alma Aleman’s performance to be
a problem. Finally, I find that the disciplinary reasons put
forth for Jose
´
Luis Mora Rodriguez and Alma Aleman’s dis-
charges are limited to complaints that Jose
´
Luis Mora
Rodriguez and Alma Aleman complained, were hard to work
with, would talk back to the supervisors, and that Jose
´
Luis
Mora Rodriguez and Alma Aleman had ‘‘bad attitudes.’’
In attempting to demonstrate an absence of available work,
John Kang testified that two of Respondent’s biggest cus-
tomers went out of business over the relevant period of
time.11 This is confirmed by the decline from approximately
160 employees in March 1993 to 80 employees in October
1993 with the majority of the decline occurring after May
1993. Further, by February 1994, Respondent had itself gone
out of business. This general decline is confirmed by Re-
spondent’s exhibits demonstrating that over the relevant pe-
riod several discharged employees wrote on unemployment
compensation forms that they left their employment with Re-
spondent because of lack of work.
In contrast, Ramiro Rodriguez testified that about 150 per-
sons were working for Respondent when he started in 1988,
and that there were about 200 persons working there both in
January 1993 and in July 1993, thereby indicating that there
had been no decline in employment.
I find that Respondent’s evidence of its economic decline
is credible. Therefore I find that there existed a need for the
Respondent to reduce its labor force over the period in ques-
tion. I also find, however, that the Respondent provides no
evidence to support the method it chose to employ in select-
ing which employees to discharge, nor any evidence suggest-
ing that Respondent had selected particular departments or
job categories to discharge.
Counsel for the General Counsel asserts that Jose
´
Luis
Mora Rodriguez and Alma Aleman were discharged for their
engagement in union and other protected activities in viola-
tion of Section 8(a)(1) and (3) of the Act.
Respondent argues that Jose
´
Luis Mora Rodriguez and
Alma Aleman were ‘‘terminated, along with others, for lack
of work and need for their services.’’
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board announced the following causation test in all cases al-
leging violations of Section 8(a)(3) or violations of Section
8(a)(1) turning on employer motivation.
First, the General Counsel must make a prima facie
showing sufficient to support the inference that pro-
tected conduct was a ‘‘motivating factor’’ in the em-
ployer’s decision.
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 For example, on November 24, 1992, Isaura Lucero gave Re-
spondent a letter dated that same day containing the following pas-
sage: ‘‘The International Ladies Garment Workers Union/Justice
Center, has been informed that you are unlawfully discriminating
against Mr. Jose
´
Luis Mora, Mrs. Alma Aleman and Benito
Crisanto, because [of] their Justice Center membership and activi-
ties.’’
Second, upon such a showing, the burden shifts to
the employer to demonstrate that the same action would
have taken place even in the absence of the protected
conduct.
The United States Supreme Court approved and adopted
the Board’s Wright Line formulation in NLRB v. Transpor-
tation Management Corp., 462 U.S. 393, 399–403 (1983).
In order to establish a prima facie case of a violation of
Section 8(a)(1) or (3) counsel for the General Counsel must
demonstrate:
1. That the employee was discharged.
2. Knowledge on the part of the employer that the
employee was engaged in union activity.
3. That the discharge of the employee was caused by
this activity.
Wheeling-Pittsburgh Steel Corp. v. NLRB, 618 F.2d 1009
(1985).
Since Respondent judicially admitted the terminations of
Jose
´
Luis Mora Rodriguez and Alma Aleman, the only con-
tested elements involve Respondent’s knowledge of their
union activities and motivation in discharging these employ-
ees.
In this case there was substantial evidence both that Jose
´
Luis Mora Rodriguez and Alma Aleman engaged in union
activities over a long period of time, and that the employer
knew of Jose
´
Luis Mora Rodriguez and Alma Aleman’s ex-
tensive union activity. For example, Jose
´
Luis Mora
Rodriguez and Alma Aleman had been attending meetings
since August 1992 and there was testimony recounting how
Pepa Kang had made fun of both employees for ‘‘going to
the [Union] Center.’’ Union organizers representing Jose
´
Luis Mora Rodriguez and Alma Aleman either phoned or
met with Respondent on several occasions and as early as
November 1992 gave Respondent written notice of Jose
´
Luis
Mora Rodriguez’ and Alma Aleman’s union activities.12 Fur-
ther, just prior to their discharges, Jose
´
Luis Mora Rodriguez
and Alma Aleman participated in union organized dem-
onstrations, hearings, and television interviews to which John
Kang admitted to having knowledge. Hence, it is clear that
Respondent had knowledge of Alma Aleman’s and Jose
´
Luis
Mora Rodriguez’ union activities.
Further, the timing of the discharges indicates that the em-
ployer was motivated by antiunion animus. Animus is estab-
lished by evidence suggesting that an employer has an un-
lawful reason for the discharge, usually to discourage union
or other protected activity. In this case several witnesses
were uncontradicted in their testimony that Respondent had
made derogatory remarks about Jose
´
Luis Mora Rodriguez
and Alma Aleman going to see their ‘‘mothers.’’ Further, at
the time of the discharge, Respondent’s had already dis-
charged Santiago Rodriguez, Ramiro Rodriguez, and Jose
´
Alonzo Jiminez for concerted action in violation of Section
8(a)(1), had told employees not to talk to Alma Aleman and
Jose
´
Luis Mora Rodriguez because of their union involve-
ment, and had interrogated an employee about his union ac-
tivities.
Hence, I find that counsel for the General Counsel has
made a sufficient showing of union animus. It follows that
she has also made out a prima facie case, 8(a)(3) and (1)
violations regarding Respondent’s discharge of Jose
´
Luis
Mora Rodriguez and Alma Aleman.
The establishment of a prima facie case shifts the burden
to the employer to demonstrate ‘‘that the same action would
have taken place even in the absence of the protected con-
duct.’’ Respondent appears to take the following approaches
towards meeting this burden:
1. Respondent argues that Alma Aleman and Jose
´
Luis Mora Rodriguez were discharged because of eco-
nomic necessity.
2. Respondent argues that Alma Aleman and Jose
´
Luis Mora Rodriguez were discharged because of their
disciplinary history.
As noted above, I have credited Respondent’s testimony
that Respondent’ s business was required to make work force
reductions over the period in question. Granting this point,
however, to the Respondent does not satisfy the Wright Line
requirement that the same discharge action ‘‘would have
taken place even in the absence of the protected conduct.’’
A mere need for labor force reductions does not grant an em-
ployer permission to eliminate union activists from a
business’s work force. Hinkle Metal Supply, 305 NLRB 522
(1991).
Respondent provides no credible evidence which might
provide a rationale for its selection of Jose
´
Luis Mora
Rodriguez and Alma Aleman for discharge. Indeed, the testi-
mony about disciplinary problems serves to show just the op-
posite. For an employer’s distortion and magnification of an
employee’s deficiencies casts a deep shadow over a claim
that mere business judgment was involved in the employee’s
termination. Postal Service, supra at 738.
There are, additionally, several factors which suggest that
Respondent’s claims are untrue. First, neither employee ever
received any warning or notice informing of any lack of pro-
ductivity. Second, there is uncontradicted testimony that Sun
Alma Kang told Isaura Lucero that both Jose
´
Luis Mora
Rodriguez and Alma Aleman were ‘‘good workers.’’ Third,
during the period between August 13 and 27, Alma Aleman
was given a special ‘‘emergency project.’’ The assignment of
this project suggests that there was a shortage of labor supply
during this period, or is tantamount to recognition of Alma
Aleman’s adequate or superior skills. Either of these possi-
bilities undermines Respondent’s argument that Alma
Aleman was selected to be discharged for economic reasons.
Further, Respondent gave no explanation for its timing of
the discharges. The initial discharge of Alma Aleman on Au-
gust 13 came on the heels of Alma Aleman’s highly public
union activities, which included a protest, testimony at a
hearing, and a television interview. This discharge was ap-
parently converted into a threat to discharge when Respond-
ent not only allowed Alma Aleman to continue in the piece
work project that she had started, but gave her another
project, and later called her to complete corrections on the
first job. Alma Aleman’s permanent discharge, as of August
27, occurred within a few days of a television interview and
931WORLD FASHION
13 Respondent argues that, ‘‘where economic reasons for termi-
nation exist, coupled with that which, as here amounts to a mere sus-
picion that termination occurred for improper and protected reasons,
the economic factors must prevail.’’ citing NLRB v. Freeman Co.,
471 F.2d 708 (8th Cir. 1972). Respondent’s reliance on Freeman is
misplaced.
First, although some of the message of Freeman may be still valid,
it has long since been superseded by the Board’s and the Supreme
Court’s Wright Line test for causation. Unfortunately, nowhere in
Respondent’s brief is the Wright Line test mentioned. Nor are any
of the elements of the test discussed. Nor is Respondent’s reliance
on Freeman harmonized with the Board’s current reliance on the
Wright Line test.
Second, the facts of Freeman are not supportive of Respondent’s
case. Indeed, they support a conclusion opposite to that of Respond-
ent’s. In Freeman union bargaining members claimed to have been
discriminated against in cutbacks of their hours of work. The Eighth
Circuit relied on the fact that the ‘‘company acted company-wide
with a uniform policy and reduced the hours of all employees.’’ In
this case, however, no testimony was given about how Respondent
reached the decision to carry out its required layoffs. Further, rather
than a mere ‘‘naked suspicion,’’ The General Counsel has estab-
lished the required Wright Line prima facie case.
photography session related to working conditions amongst
garment workers, an interview which took place in front of
Respondent’s factory just immediately following the Union’s
contact with Respondent to collect wages for time Alma
Aleman spent making corrections.
Although Jose
´
Luis Mora Rodriguez was not as active in
his union activities as was Alma Aleman, he did attend the
protest meeting conducted by the Union on August 13, 1993,
with Alma Aleman. Further, Jose
´
Luis Mora Rodriguez’ ac-
tivities need to be viewed within the context of his wife
Alma Aleman’s union activities. As the Fourth Circuit has
recently held, when layoffs are economically justified, the in-
validation of a single impermissible discharge will not serve
to similarly invalidate all contemporaneous terminations,
Goldtex, Inc. v. NLRB, 14 F.3d 1008 (4th Cir. 1994), and
where the employees are husband and wife, discharging an
employee in retaliation for his or her spouse’s union activi-
ties is an unfair labor practice. In this case it is reasonable
to infer that Jose
´
Luis Mora Rodriguez’ discharge, which oc-
curred simultaneously with that of his wife, a vocal union ac-
tivist, was at least partially a retaliation against Alma
Aleman’s activities. As such it constitutes a violation of Sec-
tion 8(a)(3) and (1) of the Act, and was designed to interfere
with employees’ rights to self-organization guaranteed by
Section 7 of the Act. Tecmec, Inc., 306 NLRB 499 (1992);
Waterbed World, 286 NLRB 425 (1987); Pony Express Cou-
rier Corp., 283 NLRB 868 (1987).13
E. Violations of Section 8(a)(1) of the Act
1. Instructing employees not to talk to union activists
The complaint alleges that sometime in late July or early
August 1993, Pepa Kang instructed employees not to talk to
known union adherents.
Francisco Maldonado testified in uncontradicted testimony
that the first such incident occurred after a meeting in July
1993, held between Supervisors Pepa Kang, Pepe Kang, Sun
Alma Kang, employees Alma Aleman and Jose
´
Luis Mora
Rodriguez, and Union Organizer Isaura Lucero. After this
meeting Pepa Kang stated to Francisco Maldonado that Alma
Aleman and Jose
´
Luis Mora Rodriguez were ‘‘too much
problem,’’ that they were very bad (‘‘mucho malo’’), and
that they had black hearts (‘‘corazon negro’’):
Q. Did she say anything about your talking to them?
A. (Through Interpreter) Yes, she told me not to talk
to them because they were bad.
Q. After that, did Pepa say that to you again?
A. (Through Interpreter) Yes she told me that several
times.
Q. How often did she say that to you?
A. Sometimes two or three times a day.
Francisco Maldonado testified that these instructions con-
tinued through August during work and break times.
These instructions were limited initially to Francisco
Maldonado, but was later made to other employees as well
as Francisco Maldonado. As Francisco Maldonado testified,
Pepa Kang spoke to Francisco Maldonado and several other
employees in early August 1993, as follows:
Q. What did Pepa say to this group of five or six
employees?
A. (Through Interpreter) That Jose
´
and Alma had
been saying bad things about them.
Q. What did Pepa tell the employees about that?
A. (Through Interpreter) No, she would say not to
talk to them.
Q. Did Pepa repeat that to you also?
A. (Through Interpreter) Yes.
Q. How often?
A. (Through Interpreter) Sometimes two or three
times a day, the same thing.
Q. Did she say anything to you as you clock out at
the end of the day?
A. (Through Interpreter) The same thing she would
say again, not to talk to them because they were too
bad and black heart.
I find Francisco Maldonado to be a generally credible wit-
ness. Additionally, all such testimony was uncontradicted by
any of Respondent’s evidence. Specifically, Respondent
failed to call Pepa Kang to testify on these matters. It is a
well-accepted rule that ‘‘when a party fails to call a witness
who may reasonably be assumed to be favorably disposed to
the party, an adverse inference may be drawn regarding any
factual question on which the witness is likely to have
knowledge.’’ International Automated Machines, 285 NLRB
1122, 1123 (1987) (citing 2 Wigmore, Evidence § 286 (2d
ed. 1940); McCormick, Evidence § 272 (3d ed. 1984); Greg
Construction Co., 277 NLRB 1411 (1985); Hadbar, 211
NLRB 333, 337 (1974). An inference that the witness would
have testified adversely to the party may be inferred in these
situations especially where the missing witness is the a mem-
ber of family and management alleged to have been the vio-
lator. I therefore accept Francisco Maldonado’s account of
these events. This account demonstrates that Respondent told
employees on several occasions not to talk to employees who
were union activists because, in Respondent’s view, such
employees were ‘‘bad’’ and had ‘‘black hearts.’’
In my opinion, Pepa Kang’s reference to Jose
´
Luis Mora
Rodriguez and Alma Aleman’s ‘‘black hearts,’’ and to their
being ‘‘bad,’’ are terms, which like ‘‘bad attitude,’’ were no
932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Francisco Maldonado understood her question to be aimed at
whether he was going to the Union’s Justice Center.
more than euphemisms for those harboring union sympathies.
Cf. L. S. Ayres & Co., 221 NLRB 1344 (1976).
The Board finds that the right of employees to organize
for collective bargaining is a strong Section 7 right, ‘‘at the
very core of the purpose for which the NLRB was enacted.’’
New Process Co., 290 NLRB 704, 705 (1988). In any litany
of the ways in which employees organize themselves for col-
lective bargaining, their day-to-day discussions and inter-
change of ideas must surely rank very high. For this reason
it is regarded as protected activity. Thus, an employee’s ef-
forts to speak with and convince others of the validity of his
ideas and feelings about the cause of unionism must gen-
erally be regarded as protected as well.
The right of employees to communicate with each other
concerning the desirability of organizing is one which is pro-
tected by Section 7 of the Act. For, the effectiveness of orga-
nization rights ‘‘depends in some measure on the ability of
employees to learn the advantages and disadvantages of or-
ganization from others. Early in the history of the administra-
tion of the Act the Board recognized the importance of free-
dom of communication to the free exercise of organization
rights.’’ Central Hardware v. NLRB, 407 U.S. 539, 543
(1972). ‘‘Direct personal contact is the most truly effective
means of communicating not only the option of collective
bargaining, but the most compelling reasons for exercising
that option.’’ Belcher Towing Co., 256 NLRB 666 (1981).
Consequently, in seeking to discuss the desirability of select-
ing the Union as their bargaining representative, the employ-
ees exercise a right guaranteed to them by Section 7 of the
Act.
‘‘No restriction may be placed on the employees’ right to
discuss self-organization among themselves, unless the em-
ployer can demonstrate that a restriction is necessary to
maintain production or discipline.’’ (Citation omitted.) NLRB
v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1956). The fa-
cility where employees work has long been recognized as a
‘‘place uniquely appropriate’’ for exercise of that right of
employees. Republic Aviation Corp. v. NLRB, 324 U.S. 793,
801 fn. 6 (1945).
Thus, absent a valid rule, or special circumstances, em-
ployees are protected in such discussions. Hambre Hombre
Enterprises, 228 NLRB 136 (1977).
Through the years the Board has balanced the rights of
employees to organize against the legitimate property right of
employers to have their workplaces be as productive as pos-
sible. As a consequence, the Board’s Rule is that an em-
ployer may forbid employees to talk about a union during
periods when the employees are supposed to be actively
working, if that prohibition also extends to all other subjects
not associated or connected with their work tasks.
An employer may lawfully forbid employees to talk about
a union during periods when they are supposed to be work-
ing, if that prohibition also extends to all other subjects not
associated or connected with their work tasks. Orval Kent
Food Co., 278 NLRB 402, 405, 407 (1986). However, where
the instruction is discriminatorily promulgated the instruction
is violative of Section 8(a)(1). Teksid Aluminum Foundry,
311 NLRB 712 (1993).
Here, where the sole instruction was to avoid talking with
certain union activists, the discriminatory promulgation is ob-
vious on its face. Further, it is uncontested that Respondent
made no distinction between working and nonworking time
in its instruction not to talk to Jose
´
Luis Mora Rodriguez and
Alma Aleman. Thus, the instruction was violative of Section
8(a)(1) of the Act. Stoddard-Quirk Mfg. Co., 138 NLRB 615
(1962).
Therefore, I find that Pepa Kang’s direction to Francisco
Maldonado and other employees not to talk to Jose
´
Luis
Mora Rodriguez and Alma Aleman was a violation of Sec-
tion 8(a)(1) of the Act.
2. Interrogation
The complaint alleges that sometime during mid to late
August 1993, Sun Alma Kang, at the facility, interrogated
employees about their union affiliation and support and about
their fellow employees’ union activities and support.
The evidence which counsel for the General Counsel ad-
duced in support of this allegation is found in Francisco
Maldonado’s testimony as to one event.
Francisco Maldonado was uncontradicted in his testimony
that when going to pick up an order ticket in Sun Alma
Kang’s office, Sun Alma Kang questioned Francisco
Maldonado about whether he planned to go with Jose
´
Luis
Mora Rodriguez to the union meeting (‘‘Centro’’).14 When
he told Sun Alma Kang that he was not going, Sun Alma
Kang responded that it was very good that he was not going
to attend.
I find Francisco Maldonado’s uncontradicted testimony to
be credible and accept his testimony about the content and
character of this meeting.
Interrogation of an employee concerning his union senti-
ments is not a per se violation of the Act. In determining
whether or not a violation of Section 8(a)(1) has occurred the
Board looks at whether under all the circumstances the inter-
rogation reasonably tends to interfere with, restrain, or coerce
employees in the exercise of their Section 7 rights. Emery
Worldwide, 309 NLRB 185, 186–187 (1992). Factors which
the Board has examined include:
1. The history of employer hostility towards, or dis-
crimination against, union supporters.
2. Whether the employer’s statements were made in
a context free of other unfair labor practices.
3. The length and threatening nature of the question-
ing.
4. Whether there was any threat of retaliation.
5. Whether the conversation was casual and amica-
ble.
6. The supervisory level of the interrogator. [Id.]
If this event had occurred in a context absent other evi-
dence of the circumstances in which this conversation oc-
curred I would find that this incident fell within the realm
of permitted employee interrogation. In this instance, how-
ever, the interrogation occurred shortly after three employees,
active in union meetings, had been discharged for protected
concerted activities in violation of Section 8(a)(1). Further,
the employer repeatedly made derogatory statements about
union supporters as being ‘‘black hearts’’ and ‘‘bad’’ on a
nearly daily basis, and teased union supporters who were de-
parting the factory to attend union meetings. Further, after
933WORLD FASHION
Francisco Maldonado responded to an inquiry that he was
not planning on attending an upcoming union meeting, Sun
Alma Kang, according to uncontradicted testimony, told
Francisco Maldonado that it was ‘‘very good that [Francisco
Maldonado] was not going.’’ Given that Sun Alma Kang was
a part owner and Francisco Maldonado’s supervisor, it is dif-
ficult to imagine that this conversation would not have a co-
ercive effect on an employee.
Therefore, I find that the Respondent’s interrogation of
Francisco Maldonado constituted a violation of Section
8(a)(1) of the Act.
3. Threats of termination
The complaint alleges that about August 13, 1993, Pepa
Kang, at the facility, threatened employees with termination
because they engaged in union activities or supported the
Union.
In support of this allegation counsel for the General Coun-
sel offered the testimony of Alma Aleman, concerning the
events of August 13, 1993, approximately 2 weeks prior to
her final discharge:
Q. And what did Pepa say to you?
A. (Through Interpreter) She called me to the office
and told me, ‘‘There is no more work for you. You are
to collect unemployment benefits.’’
Q. And what did you say to her?
A. (Through Interpreter) I said, ‘‘Why are you send-
ing me home when there is too much work?’’
Q. And what did she say?
A. (Through Interpreter) She said, ‘‘You are too
much problem. There is no more work.’’
Q. And do you recall having a conversation with
Pepa the next day about your appearance on TV?
A. (Through Interpreter) Yes. She told me that my
husband and I did not need to work at the factory any-
more because we were imitating the TV stars.
I find Alma Aleman’s testimony credible as pertains to
this conversation. Opposing it, there is no testimony offered
by Respondent to oppose this version of the events. Re-
spondent failed to call Pepa Kang as a witness despite Pepa
Kang’s obvious ability to rebut Alma Aleman’s testimony.
Therefore, I find that the above conversation occurred as
Alma Aleman testified.
Rather than being immediately discharged, Alma Aleman
was allowed to finish the project that she had started. In fact,
Respondent assigned her further work, prior to releasing her
on August 27.
Therefore, I find that the conversation on August 13 was
not a notice of discharge, but was instead a threat, intended
to operate as a ‘‘cocked pistol’’ to make Alma Aleman cease
her union activities. This interpretation is supported by Alma
Aleman’s discharge on August 27, immediately after she ap-
peared on television to discuss working conditions amongst
garment workers and had the Union represent her on obtain-
ing wages for ‘‘correction’’ work.
It is well established that statements that a known union
activist employee causes problems, or is a troublemaker, ab-
sent actual documentation of these incidents, are regarded as
simply euphemisms, demonstrating an employer’s dissatisfac-
tion with an employee’s union activities. L. S. Ayres & Co.,
221 NLRB 1344 (1976); NLRB v. Shawnee Industries, 333
F.2d 221 (1964). Respondent made numerous and continual
references to Alma Aleman in testimony, as causing prob-
lems and complaining. In fact, on August 13, in the same
sentence in which Sun Alma Kang explained the reason for
the discharge to Alma Aleman as related to not having work,
Sun Alma Kang also stated that ‘‘You are too much prob-
lem.’’
Inconsistently, Respondent allowed Alma Aleman to con-
tinue working on the project she had just started, gave her
a new assignment, and then called Alma Aleman back to
complete ‘‘corrections’’ on the first assignment. Therefore, I
find that despite the explicit language to the contrary, the
August 13 discharge was in fact, a threat to discharge for
continued union activity. This threat was carried out when
Alma Aleman, 2 weeks later was interviewed in front of the
factory by television stations as part of a union effort to en-
force the minimum wage in the garment industry, and after
Union Organizer Isaura Lucero intervened to collect wages
for the time Alma Aleman spent making corrections. Re-
spondent has made no attempt, either on brief or through tes-
timony at the hearing, to refute this allegation.
I find and conclude that counsel for the General Counsel
has demonstrated that a threat was made against Alma
Aleman with the intent of coercing her into not exercising
her Section 7 rights, all in violation Section 8(a)(1).
Summarizing, I find and conclude that counsel for the
General Counsel has proven each allegation made or con-
tained in the complaint.
CONCLUSIONS OF LAW
1. Respondent is now, and at all times material has been,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is now, and at all times material has been,
a labor organization within the meaning of Section 2(5) of
the Act.
3. Sun Alma Kang, Pepe Kang, Pepa Kang, and John
Kang are, and at all material times have been, supervisors of
Respondent within the meaning of Section 2(11) of the Act,
and have been, and are now, agents of Respondent within the
meaning of Section 2(13) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by dis-
charging employees Santiago Rodriguez, Ramiro Rodriguez,
and Jose
´
Alonzo Jiminez.
4. Respondent violated Section 8(a)(3) and (1) of the Act
by laying off and discharging employees Alma Aleman and
Jose
´
Luis Mora Rodriguez.
5. Respondent violated Section 8(a)(1) of the Act by its
instructions to employees not to talk to union adherents.
6. Respondent violated Section 8(a)(1) of the Act by
threatening to fire Alma Aleman on August 13, 1993, prior
to her final discharge.
7. Respondent violated Section 8(a)(1) of the Act by inter-
rogating an employee concerning the employee’s union ac-
tivities, sympathies, or leanings.
THE REMEDY
Having found that the Respondent has violated the Act, it
shall be ordered to cease and desist therefrom, and to take
certain affirmative actions, including the posting of an appro-
priate notice, designed to effectuate the purposes of the Act.
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
16 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.
17 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.’’
Respondent shall be ordered to rescind its unlawful layoffs
and discharges of its employees, Santiago Rodriguez, Ramiro
Rodriguez, Alonzo Jose
´
Jiminez, Alma Aleman, and Jose
´
Luis Mora Rodriguez, and to offer them immediate, full, and
unconditional reinstatement to their former positions of em-
ployment or, if those positions no longer exist, to substan-
tially equivalent positions, and to make them whole for all
losses of pay and benefits, including seniority and other
rights and privileges sustained by them as a result of Re-
spondent’s unlawful actions against them. Backpay and bene-
fits shall be with interest, computed in the manner prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).15 Respondent shall also expunge from its
records all references to the unlawful layoffs and discharges
of the above-named employees, and shall inform them in
writing that this has been done and that such unlawful ac-
tions will not be used against them in any manner in the fu-
ture. Respondent shall also preserve all necessary records for
backpay and benefits, and make them available to the Re-
gional Director for Region 21 or his representatives.
On these findings of fact and conclusions of law, and on
the entire record, I issue the following recommended16
ORDER
The Respondent, World Fashion, Inc., Los Angeles, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Laying off and/or discharging its employees, Santiago
Rodriguez, Ramiro Rodriguez, and Jose
´
Alonzo Jiminez, be-
cause of their having engaged in concerted activities.
(b) Laying off and/or discharging its employees, Alma
Aleman and Jose
´
Luis Mora Rodriguez, because of their sup-
port for the Garment Workers’ Justice Center, International
Ladies’ Garment Workers’ Union, Western States Region,
AFL–CIO or other engagement in union activities.
(c) Interrogating employees concerning their own union
activities and/or the union activities of their fellow employ-
ees.
(d) Instructing employees not to talk to union adherents.
(e) Threatening to discharge employees for their union ac-
tivities.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative actions which are nec-
essary to effectuate the policies of the Act.
(a) Rescind the unlawful layoffs and discharges of employ-
ees Santiago Rodriguez, Ramiro Rodriguez, Jose
´
Alonzo
Jiminez, Alma Aleman, and Jose
´
Luis Mora Rodriguez, and
offer each of them full and unconditional reinstatement to
their former positions of employment or, if those positions
no longer exist, to substantially equivalent positions, and
make them whole for all losses of wages and benefits, with
interest, as set our in the remedy section, and restore all
rights and privileges, including seniority, to them.
(b) Expunge from its files any references to the unlawful
actions taken against Alma Aleman and Jose
´
Luis Mora
Rodriguez on August 27, 1993, and the unlawful actions
taken against Santiago Rodriguez, Ramiro Rodriguez, and
Jose
´
Alonzo Jiminez on July 13, 1993, and inform these em-
ployees in writing that this has been done, and that these un-
lawful acts will not be used against them in the future in any
manner.
(c) 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
record and reports, and all other records necessary to analyze
the amount of backpay due under the terms of this Order.
(d) Post at its facility in Los Angeles, California, copies
of the attached notice marked ‘‘Appendix, both in English
and in Spanish.’’17