Circle Import Export Co.

National Labor Relations Board - Board Decisions

Aug 16, 1979

244 N.L.R.B. 255 (N.L.R.B. 1979)

CIRC('LE IMP'ORI IXPORI (()OMPANY'
Unihorld General, Inc.. d/h/a Circle Import Export
Compan / Kel in Inlernationale and I.os Angeles
Joint Board of International Ladies' Garment
Workers' Union. AFL-CIO. ases 21 CA 16803,
21-CA 17066. 21 CA 17106 1, 21 ('A 17106 2.
21 CA 17150. and 21 CA 17271
August 16. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On May 7, 1979, Administrative Law Judge Jerrold
H. Shapiro issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief, and Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent.
Uniworld General, Inc., d/b/a Circle Import Export
Company/Kelvin Internationale, Los Angeles, Cali-
fornia, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
I. Substitute the following for paragraph I(d):
"(d) In any like or related manner interfering with,
restraining, or coercing employees in the excerise of
the rights guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
In the absence of exceptions, Member Murphy adopts pro orma the
Administrative Law Judge's holding (part II. A. of his Decision). that Re-
spondent violated Sec. 8(aX I) by telling a striker that he was either dismissed
or laid off from work because someone had been hired to replace him.
I Pursuant to Hickmott Foods, Inc. 242 NLRB 1357 (1979). we find that a
narrow order rather than a broad order is appropriate to remedy the viola-
tions found herein
APPN[: I) X
Noic( To EPOYEils
Pos I L) BY ORDI) R ()I 1I11
NAIIONAI LAB()R RtI.AII()NS BARI)
An Agency' of the United States Government
W- wiL. NoI suspend or otherwise discrimi-
nate against any employee for engaging in pro-
tected concerted activities within the meaning of
Section 7 of the National Labor Relations Act,
as amended.
WE WI'lL.. 't)I notify striking employees that
thes have been dismissed or laid off because the!
have been replaced.
WI: wVLL. NOt refuse to bargain collectivel\
with Los Angeles Joint Board of International
Ladies' Garment Workers' Union, AFI. CIO, by
unilaterally changing the wages or other terms
and conditions of employment of the employees
employed in the appropriate bargaining unit
without prior consultation and bargaining with
the Union and by making false representations
to the employees for the purpose of undermining
the Union's representative status. The appropri-
ate bargaining unit is:
All production and maintenance employees.
shipping and receiving employees employed
by our Los Angeles, California facilits: ex-
cluding all other employees, office clerical em-
ployees, salesmen, professional employees.
guards and supervisors as defined in the Act.
WE WILl. NOx in anv like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WIlll pay Jesus Camacho for wages he lost
because of his suspension. plus interest.
UNIWORLD) GENERAL, INC(.. D/B/A CIRCLE
IMPORt EXPORI COMPANY/KELVIN INIER-
NATIONAl.F
DECISION
STATEMENT OF TIHF CASE
JERRI.I) H. SHAPIRO, Administrative Law Judge: The
consolidated proceeding herein is based upon unfair labor
practice charges filed by Los Angeles Joint Board of Inter-
national Ladies' Garment Workers' Union, AFL-CIO.,
herein called the Union. on June 20. 1978 (Case 21-CA
16803): September 14. 1978 ICase 21 CA- 17066): Septem-
ber 26, 1978 (Case 21 CA-17106 1 and Case 21-CA
171062)}: October 10. 1978 (Case 21 -CA- 17150): and No-
vember 14, 1978 (Case 21 CA- 17271. as amended January
22, 1979). On January 31. 1979, the General Counsel of the
244 NLRB No. 43
2S5
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board, herein called the Board.
issued an amended consolidated complaint in these cases
alleging that Uniworld General, Inc., d/b/a Circle Import
Export Company/Kelvin Internationale, herein called Re-
spondent, has engaged in unfair labor practices within the
meaning of Section 8(a)(1), (3), and (5) of the National La-
bor Relations Act, herein called the Act. Respondent filed
an answer denying the commission of the alleged unfair
labor practices.' On February 15 and 16, 1979, I conducted
a hearing in this proceeding.
Upon the entire record,2 from my observation of the de-
meanor of the witnesses, and having considered post-hear-
ing briefs. I make the following:
FINDINGS OF FACT
I. THE SETING AND QUESTIONS TO BE DECIDED
Respondent maufactures souvenirs-i.e., "T" shirts,
sweat shirts, beach towels, at its facility in Los Angeles,
California. On December 9, 1977, a majority of its employ-
ees voted for the Union as their exclusive bargaining repre-
sentative in a Board-conducted representation election. On
April 17, 1978, the Board certified the Union as the em-
ployees' exclusive collective-bargaining representative. On
May 26; June 12; August 11, 22, and 29; and September I1,
1978, the representatives of the Union and Respondent met
to negotiate the terms of a collective-bargaining contract.
The complaint alleges, in substance, that late in September
and early October 1978 Respondent attempted to wean the
employees away from the Union and to deal directly with
them, thereby violating Section 8(a)(5) and (1) of the Act.
The aforesaid negotiations did not result in a collective-
bargaining agreement, so on October 9, 1978, the Union
called a strike, and approximately 18 of the employees
ceased work in support of the strike which was still in pro-
gress on the dates of the hearing in this proceeding. It is
undisputed that during October 1978, November 1978, and
January 1979 virtually each employee who worked for the
Company received merit pay raises. The complaint alleges
that these pay raises constitute impermissible unilateral
conduct in violation of Section 8(a)(5) and (1) of the Act.
Likewise, the complaint alleges that during the strike Re-
spondent solicited striking employees to return to work and
threatened them with discharge if they did not, thus violat-
ing Section 8(a)(1) of the Act.
The Union's negotiating committee was comprised of ap-
proximately 14 employees. Two of them, Ernest Camacho
and Jaime Leyva, were suspended from work for I week in
September 1978; another, Jesus Camacho, was suspended
from work for I week in June 1978; and a fourth committee
member, Aurora Hernandez, was laid off from work on
September 1, 1978. The complaint alleges that these em-
ployees were suspended and laid off from work due to their
union or protected concerted activities.
I In its answer Respondent admits that the Union is a labor organization
within the meaning of Sec. 2(5) of the Act. Respondent also admits that it is
an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of
the Act and meets the Board's applicable discretionary jurisdictional stan-
dard.
2 General Counsel's unopposed motion to correct transcript is granted.
1. HE ALI.EGEI) UNFAIR I.ABOR PRAC(IIES
A. Respondent Informs a Striker That He Has Been
Dismissed or Laid Off From Work
It is undisputed that employee Apolinar Caronel, during
the week of October 2, 1978, was on vacation from work.
He was scheduled to report back Monday, October 9, the
day that the strike commenced. Caronel did not report back
to work as scheduled: instead he joined the strike (see J.
Exh. 2). Caronel testified that on approximately October 14
and 15, 1978, he spoke over the telephone to Respondent's
supervisor Alfredo Gastelum.3 Caronel testified that Gas-
telum did not ask him to return to work but told Caronel
that he was either dismissed or laid off from work because
someone had been hired to replace him. Caronel's testi-
mony was uncontroverted and credible.
I am of the opinion that Gastelum's statement that Caro-
nel had been either discharged or laid off from work be-
cause he had been replaced was calculated to lead Caronel
to believe that strikers who were replaced by Respondent
had absolutely no right to reinstatement. This is an incor-
rect recitation of the law and was calculated to coerce strik-
ers such as Caronel from exercising their statutory right to
support the Union's strike. By engaging in this conduct
through its supervisor, Gastelum, Respondent violated Sec-
tion 8(a)(1) of the Act.4
B. Respondent Attempts to Undermine the Union's
Representative Status
In August 1978, in response to suggestions by representa-
tives of Respondent that they felt progress in the contract
negotiations was being hindered by the large size of the
Union's employee negotiating committee and by the mili-
tancy of the committee, union representative Philip Russo
mentioned to Respondent's president, Leo Keligian, that
representatives of the Union would not be opposed to meet-
ing privately with Keligian for lunch or dinner, without the
employee bargaining committee, if Keligian thought that
this would help the parties reach an agreement. Thereafter,
on September 27, 1978, Russo phoned Keligian and again
suggested that representatives of the Union, without the
employee bargaining committee, meet for dinner with Kel-
igian in order to resolve some of the outstanding bargaining
issues separating the parties. Russo explained to Keligian
that the essence of collective bargaining was compromise,
with each party ultimately getting somewhat less than it
hoped for, and that the Union was willing to compromise
so long as it could reach an agreement acceptable to the
employees who would ratify any agreement. Keligian was
noncommital about meeting privately with the union repre-
sentatives.
I Respondent admits that Gastelum is a statutory supervisor and is an
agent acting on Respondent's behalf.
' Although this unfair labor practice finding is not encompassed in haec
verba by any allegation of the complaint, I am of the view that it is suffi-
ciently encompassed by the complaint's allegation that in October 1978 Gas-
telum solicited strikers to return to work and threatened them with dis-
charge.
256
CIRCLE IMPORT EXPORT COMPANY
On September 29. 1978. Keligian informed employee
Lonnie Ross, who was a member of the Union's employee
negotiating committee, that he had proof that the Union
and union representative Russo were no good. Keligian
stated that he would furnish this information to Ross in
Keligian's office during the lunch break. Ross that day vis-
ited Keligian's office during his lunchbreak. Keligian
showed him a tape recording and explained that by playing
the recording he could prove to Ross that the Union was no
good, and that union representative Russo was a bastard.
Keligian stated that he was furnishing Ross this informa-
tion because Ross was the smartest employee on the
Union's negotiating committee. The tape recording which
Keligian had in his hands was a recording of Russo's Sep-
tember 27 phone conversation with Keligian, described su-
pra, which Keligian had surreptitiously recorded. He now
played a small portion of that conversation for Ross,
namely the part where Russo invited Keligian to dinner so
that they could discuss the terms of the collective-bargain-
ing contract outside of the presence of the Union's em-
ployee negotiating committee. After playing this part of the
recording Keligian told Ross that Union Representative
Russo was attempting to meet with Keligian without the
employees in order to sign a sweetheart contract at the em-
ployees' expense. Keligian stated that Russo felt that the
company was so small that the employees did not really
need union representation but could represent themselves,
and that the only thing that the Union was interested in was
a contract which required the employees to join the Union
and pay dues. Keligian asked Ross to meet that day in the
Company's conference room with the rest of the employees
who comprised the Union's negotiating committee, to tell
them what Keligian had told him, but not to tell them
about the tape recording.
Later that day at the end of the workday Ross met with
several members of the Union's negotiating committee in
the Company's conference room and told them that Keli-
gian had furnished him with evidence that the Union was
no good. But since it was payday and the end of the work-
week everyone was in a hurry to leave, so nothing further
was discussed about the matter.
On Monday, October 2. 1978, Ross informed Keligian
that he had thought about what Keligian had stated to him
about the Union and decided that he would like another
employee, Jesus Camacho, who was also a member of the
Union's negotiating committee, to listen to the tape record-
ing. Keligian indicated that this was acceptable to him, so
Ross brought Camacho into Keligian's office. Keligian
played the same portion of his September 27 telephone con-
versation with Union Representative Russo that he had
played for Ross the previous Friday. Camacho asked to
hear more of the conversation. Keligian stated that he did
not understand why Camacho needed to hear more inas-
much as it was clear from the part that he had played that
Russo was attempting to make a deal with the Company
outside of the employees' presence, and that Russo was not
concerned about the employees' interests but just wanted
Keligian to sign a sweetheart contract which would require
the employees to join the Union and pay dues. Ross and
Camacho indicated that they did not accept Keligian's as-
sertion and stated that before they could ever agree with
Keligian they would have to talk to Russo and get his side
of the story.
I am of the opinion that Respondent violated Section
8(a)(l) and (5) of the Act by attempting, through Keligian,
to undermine the Union and wean the employees away
from the Union. Respondent's president, Keligian, at-
tempted to disparage the Union in the eyes of the employ-
ees by deliberately misrepresenting union representative
Russo's invitation that Keligian meet with the union repre-
sentatives, without the employees being present, to discuss
the terms of a collective-bargaining contract. Thus. Kellig-
ian surreptitously tape recorded the contents of a telephone
conversation between himself and union representative
Russo and then, by playing a selected portion of this re-
cording, attempted to persuade the employees that the rea-
son for Russo's invitation was that the Union wanted to
sign a sweetheart contract with the Company at the em-
ployees' expense, and that the Union was not interested in
representing the employees but only in their dues. This oc-
curred despite the fact that there is no evidence that in
seeking a private meeting with Keligian that Russo or the
Union reasonably led Keligian to believe that the Union
was motivated by a desire to enter into a so-called sweet-
heart contract at the employees' expense. Quite the con-
trary, the portion of Russo's phone conversation with Keli-
gian which Keligian failed to play for the employees made
it perfectly clear to Keligian that any agreement reached
between Respondent and the Union outside of the presence
of the employees would have to be submitted to the em-
ployees for their approval and ratified by them. In short.
Keligian deliberately conveyed to the employees the false
impression that the Union was not interested in their wel-
fare but in negotiating a sweetheart contract at their ex-
pense. Under these circumstances Keligian did more than
simply inform the employees of the discussion between
himself and Russo as Respondent contends. Rather, his
conduct was a patent attempt to create dissension with the
Union and was designed to disparage the Union. His con-
duct tended to weaken the authority of the Union as the
employees' bargaining representative and its ability to func-
tion in that role. Such conduct violates Section 8(a)(5) and
(I) of the Act.' See General Electric Conompan. 150 NLRB
192, 194-195 (1964): General Athletic Products CompanY.
227 NLRB 1565, 1575 (1977): Kellwood Companv. Oten-
heimer Division v. N.L.R.B., 434 F.2d 1069. 1073 (8th Cir.
1970).
C. The Unilateral Grant of Wage Incrcasce
It is well settled that the statutory duty "to bargain col-
lectively" defined in Section 8(d) of the Act enforced
through Section 8(a)(5) of the Act is violated when an em-
ployer unilaterally changes employment conditions without
notifying its employees' bargaining representative and af-
fording it an opportunity to bargain about the proposed
I reject Respondent's contention that since Keligian's statements and
communications do not in themselves contain any "threat of reprisal or force
or promise of benefit." the Board may not, uinder Sec. 8(c) of the Act, rely
upon them as a violation of the Act. See General Eleciric Conmpanv. 150
NLRB 192, 281 (1964), enfd, on this point 418 F.2d 736, 760 (2d Cir. 1969).
257
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
change. N.L.R.B. v. Benne Katz, d/bha Williamsburg Steel
Products Co., 369 U.S. 736, 743 (1962). Thus an employer
violates Section 8(a)(5) of the Act by unilaterally granting
wage increases if such conduct alters the status quo.
N.L.R.B. v. Katz, supra. In the instant case, it is not dis-
puted that after the Union's certification as the employees'
exclusive bargaining representative that during October.
November, and December 1978 and January 1979 Respon-
dent unilaterally granted numerous merit wage increases to
its employees without notifying the Union. Under the fore-
going principles this conduct clearly violated Section 8(a)(5)
and (I) of the Act.
In concluding that the Company's merit wage increases
were unlawful I note there is no evidence that the increases
were granted after a bargaining impasse. In fact, at the
hearing Respondent conceded that the parties had not bar-
gained to an impasse on this particular subject. In any
event, the record establishes that the disputed merit wage
increases were not encompassed within the Company's
merit wage proposal made to the Union during contract
negotiations.'
I also note that the extensive number of merit increases
unilaterally granted by the Company after the strike was
not a continuation of an established wage or compensation
system. In N.L.R.B. v. Katz, supra, the United States Su-
preme Court distinguished between merit increases which
accorded with an employer's longstanding practice---i.e.,
"merit raises which are in fact, simply automatic increases
to which the employer had already committed himself' and
those which were not-i.e., merit raises which were "in no
sense automatic, but were informed by a large measure of
discretion." Id. at 746. Here the Company's merit increases
are plainly of the latter variety. Thus, the Company's pres-
ident, Keligian, testified that the merit increases in question
herein depended wholly on an employee's job performance
and were not automatic. He further testified that whether
the raises were to be given or withheld, the amounts, and
the timing were not governed by any set policy but by the
particular circumstances and at the discretion of the Com-
pany's several supervisors.
Based upon the foregoing I find that Respondent's unilat-
eral grant of wage increases to its employees during the
period from October 1978 through January 1979 violated
Section 8(a)(5) and (1) of the Act.
D. Respondent Suspends Jesus Camacho
On June 14, 1978, Respondent suspended employee Jesus
Camacho for I week without pay. The complaint alleges
that he was suspended because of his union or other pro-
* During the contract negotiations Respondent proposed that every 4
months, starting from an employee's date of hire, that the employee's work
performance be evaluated for a 25-cent-per-hour merit pay raise. The merit
raises granted by Respondent herein were not 25 cents per hour, but ranged
from 10 cents to 60 cents per hour. Moreover, it is clear from the testimony
of the Company's president, Keligian. that they were not based on a proce-
dure whereby employees' wages were reviewed every 4 months.
tected concerted activities. An examination of the evidence
reveals the following:7
Jesus Camacho was employed in the Company's art de-
partment. His brother, Ernest Camacho, was also employed
there. Their immediate supervisor was Bob Rivers. On June
14, 1978. at the start of the workday, while talking to Rivers
in the art department, Ernest complained to him that he
and Jesus were being assigned by Rivers to work in the
darkroom too frequently and asked whether they could be
assigned to more creative work. Rivers answered that there
was nothing he could do about their darkroom assignments.
Jesus, who was present, stated that he agreed with the sen-
timents expressed by his brother, and he stated that even
though they had complained to Rivers previously about the
darkroom assignments that he and his brother were still
being assigned by Rivers to work in the darkroom to which
they objected. In response Rivers indicated that he was fed
up with hearing the complaints expressed by the Camacho
brothers and abruptly left the department. When he re-
turned in approximately 10 minutes he informed Jesus and
Ernest Camacho that they were discharged. Jesus advised
Rivers not to be so hasty and asked to talk with Keligian,
the Company's president. Rivers stated that Keligian was
not in the plant, but he indicated that he would discuss the
matter with the Company's other owner. Leo Vincent, and
left the department.
Later that day Jesus Camacho was called into Leo Vin-
cent's office. Also present were two sales representatives
and the plant manager. Vincent asked Camacho to state
what had taken place that day between Rivers and himself.
Camacho recited what had occurred, as described supra,
and admitted that he had informed Rivers that he did not
want to fbllow his instruction to work in the darkroom.
Vincent stated that River's decision to discharge him was
too harsh, that Vincent had calmed him down, that Cama-
cho would be suspended for I week without pay for insub-
ordination, but that before this penalty was imposed he
wanted Camacho to speak with Rivers. Later that same day
Jesus Camacho and Rivers met in Vincent's office. Vincent
informed Camacho that he would leave it up to Rivers
whether to suspend Camacho. He asked whether Rivers
was willing to forget about what had taken place. Rivers
replied that he was not willing to forgive Camacho and
wanted him to be suspended. Camacho was suspended for I
week without pay.
As described supra, the Camacho brothers believed that
they should not be assigned by their supervisor, Bob Rivers,
to do darkroom work so frequently but should be assigned
to do more creative work as befitted their positions as artists
for the Company. On June 14, 1978, as described supra.
they expressed this sentiment to Rivers. In response, Rivers
indicated that he was fed up with their complaints and then
abruptly infbrmed them that they were discharged. Later
the same day the discharges were revoked, but Rivers sus-
pended Jesus Camacho from work for I week without pay.
It is plain that the subject matter of the June 14 com-
plaint, which the Camacho brothers expressed to Supervi-
7 In view of my ultimate conclusion herein I have not examined the evi-
dence with a view toward determining whether Camacho's suspension was
motivated in whole or part by his union activities
258
CIRCLE IMPORT EXPORT COMPANY
sor Rivers (inasmuch as it involved their work assignments).
was directly related to their terms and conditions of em-
ployment. Likewise, it is also plain that in complaining to
Rivers about being assigned to work in the darkroom that
the brothers were acting in concert, and that Rivers knew
this. Therefore, if Rivers suspended Jesus Camacho be-
cause, with his brother Ernest, he complained to Rivers
about being assigned to work in the darkroom, the dis-
charge violated Section 8(a)(1) of the Act. N.L.R.B. v.
Washington Aluminum Company, Inc., 370 U.S. 9 (1962). In
my opinion the context in which the suspension occurred
warrants no other inference. On June 14 Rivers expressed
his animosity toward the Camacho brothers for objecting to
him about their darkroom assignments, and it was virtually
simultaneous with their joint protest about this work assign-
ment that Jesus Camacho was notified of Rivers' decision to
first discharge and then to suspend him. These circum-
stances establish prima facie that Rivers, in suspending
Jesus Camacho, was motivated by the fact that Jesus, to-
gether with his brother, complained about being assigned to
do darkroom work rather than more creative work.8 Re-
spondent failed to call Rivers to rebut this prima facie show-
ing.
In summation, based upon the foregoing I am persuaded
that the conduct of Jesus Camacho and Ernest Camacho on
June 14, 1978, when they protested to Supervisor Rivers
about their darkroom work assignments was protected con-
certed activity within the meaning of Section 7 of the Act,
and that Jesus Camacho was suspended on June 14 for
engaging in this conduct in violation of Section 8(a)(1) of
the Act.
E. Respondent Suspends Ernest Camacho
Ernest Camacho was employed in the Company's art de-
partment as an artist. He was a member of the Union's
negotiating committee and, on September 19, 1978, for the
first time, wore a union emblem openly at work. On that
date he was suspended from work for I week for insubordi-
nation. General Counsel contends that the real reason for
the suspension was his union activities. An examination of
the circumstances surrounding this suspension reveals the
following:9
On September 19, 1978, Camacho delivered film from the
art department to the screening department. In delivering
the film it was necessary for him to walk through the sewing
department. On his way back from the screening depart-
ment one of the employees in the sewing department asked
Camacho why he was wearing the union emblem. Camacho
stopped and talked with the employee for about 4 or 5
minutes. He was observed talking by President Keligian,
who immediately spoke to Camacho about the matter. Kel-
igian told Camacho that he did not mind if he visited the
* There is no evidence that on June 14, 1978. or on any other day that
Jesus Camacho was insubordinate to Rivers in the sense that he refused a
specific order from Rivers to work in the darkroom.
I Ernest Camacho and the Company's president. Leo Keligian, were the
only witnesses called to testify about the circumstances surrounding Cama-
cho's suspension. Keligian impressed me as the more credible witness; thus,
whenever there is a conflict in their testimonies I have relied upon Keligian's
version.
employees in the sewing department so long as it was dur-
ing break periods and lunch, but that Camacho should not
disturb them while they were working. Camacho answered
in a belligerent manner. He swore at Keligian, called him a
son-of-a-bitch, and stated that Rivers, the art department
supervisor, not Keligian was the person he took his orders
from. '° Keligian left the area and notified Rivers about this
encounter. Keligian, accompanied by Rivers, spoke to Ca-
macho a second time about the matter. Camacho took the
same position as he had previously, namely, that Keligian
was not his boss and thus could not tell him what to do.
The conversation ended in a heated argument. Later that
day, in Keligian's office. Keligian once again asked Cama-
cho not to stop and visit with the employees in the sewing
department during working time but to do so only during
breaks and lunch. Camacho refused to comply with this
request. He stated that he had been doing this for quite
some time and did not see why he should not stop and talk
to the sewing department employees when they were the
ones who initiated the conversation. Keligian stated that
Camacho did not have to stop and answer them but could
simply say that he was too busy and keep right on walking.
It was at this point that Keligian suspended Camacho from
work for I week without pay for insubordination. He testi-
fied that his reason for imposing this discipline was that
Camacho had refused to follow his instruction and had
sworn at him.
In summation, on September 19, 1978. when Keligian
instructed Ernest Camacho not to visit with the employees
in the sewing department during working time but to visit
with them during break periods and lunchtime, Camacho
refused to obey his instruction. In expressing his refusal
Camacho swore at Keligian, called him a son-of-a-bitch,
and stated that Keligian, who was Respondent's president.
lacked the authority to give him orders. Plainly. Keligian
had ample justification for disciplining Camacho for insub-
ordination. And the record does not establish that in pro-
hibiting Camacho from visiting with the sewing department
employees during working time Keligian was treating him
disparately. Nor does it establish that Camacho's insubordi-
nation was used by Keligian as a pretext to enable him to
discipline Camacho because of his union activities. It is tbr
these reasons that I reject the General Counsel's contention
that Respondent suspended Ernest Camacho because of his
union activities. Accordingly. I shall recommended that this
allegation be dismissed.
F. Respondent Suspends Jaime Leyva
Jaime Leyva was I of the approximately 14 employees
who comprised the Union's negotiating committee. In Au-
gust 1978 the Union informed the Company that it did not
object to all of the Company's employees receiving a 25-
cent-per-hour pay raise. On August 10 Respondent granted
such a pay raise to all employees except Leyva who, on
I 1 note that Camacho was unable to specifically dens that he informed
Keligian he refused to take orders from Keligian because Risers sas his
boss Likewise, he was unable to specifically deny that in speaking to Keli-
gian he used profane or obscene language but admitted that "there might
have been" such language used by him
259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 29, 1978, had already received a pay raise. On Septem-
ber 11, 1978, at the negotiating session held that day Leyva
asked why he had not been granted the August 10 pay
raise. Respondent's president, Keligian, explained that
Leyva had only recently received a pay raise. The represen-
tatives of the Union asked Keligian to grant Leyva the Au-
gust 10 raise, and Keligian agreed without objection."
In May 1978 the Company's plant manager, George Par-
igian, discovered that Leyva, who at the time was employed
on a job for which he was paid by the piece, had overstated
the amount of his piecework by approximately $50 in I
week. Parigian confronted Leyva, who admitted having de-
liberately falsified his piecework records. On May 25, 1978,
Parigian issued Leyva a written disciplinary warning for
this misconduct.
On September 21, 1978, it is undisputed that Leyva, who
was then not assigned to a piecework job, left his work
station and, without the permission of a supervisor, assisted
an employee who was performing piecework, thus enabling
this employee to increase his piecework earnings. Respon-
dent's president, Keligian, observed Leyva assisting this
employee and asked if he had been granted permission to
do this work. Leyva did not answer this question but stated
that he was without work of his own. In response to Keli-
gian's further questioning Leyva admitted that when he was
out of work that he was supposed to go to his supervisor for
another job assignment. If Leyva knew this, Keligian asked,
why had he not gone to his supervisor for a work assign-
ment instead of helping an employee who was doing piece-
work? Leyva was unable to answer this question, at which
point Keligian suspended him for I week without pay.'
Keligian testified that the severity of the discipline meted
out to Leyva for his misconduct on September 21 was influ-
enced by the fact that only recently Leyva had received a
disciplinary warning, described supra, for deliberately over-
stating his piecework earnings.
In summation, in late May 1978 Leyva was issued a dis-
ciplinary warning for falsifying his piecework earnings.
Then, on September 21, 1978, Respondent's President Kel-
igian discovered Leyva assisting another worker who was
paid by the amount of work he performed, thus increasing
this employee's piecework earnings while at the same time
Leyva was receiving his usual hourly rate of pay. Leyva was
unable to explain this conduct to Keligian who, in view of
Leyva's prior disciplinary warning for falsifying his piece-
work earnings, suspended him for I week without pay.
Plainly, Keligian had ample justification for imposing this
discipline. And the record does not establish that Leyva's
misconduct was used by Keligian as an excuse to discipline
him on account of his union activities." It is for these rea-
" Leyva testified that while Keligian expressed no opposition to the
Union's request and agreed to it, Keligian looked angry.
12 Leyva and Keligian were the only witnesses who testified about the
circumstances surrounding Leyva's suspension. Keligian impressed me as the
more credible witness; thus, whenever there is a conflict in their testimonies
I have relied upon Keligian's version.
13There is insufficient evidence that in the past, when he was without
work. Leyva, on his own initiative, with the approval of supervision, would
assist employees performing piecework. Moreover, if this was the case I am
convinced that on September 21, in response to Keligian's questioning.
Leyva would have mentioned this past practice.
sons that I reject the General Counsel's contention that Re-
spondent suspended Jaime Leyva because of his union ac-
tivities. Accordingly, I shall recommend that this portion of
the complaint be dismissed.
G. Respondent LaYs OJJ Aurora Hernandez
On September 1, 1978, Respondent laid off employee Au-
rora Hernandez. General Counsel contends that she was
laid off because she was a member of the Union's negotiat-
ing committee. An examination of the evidence reveals the
following:
Respondent manufactures souvenirs for tourists. As a re-
sult, it is busy during June, July, and August, but in Sep-
tember its business drops by one-third and continues to de-
creased until the summer months when school is out. Each
year in September. at the end of its season, Respondent's
complement of production workers decreases significantly.
If normal attrition and the termination of the workers who
were hired for just the summer season do not adequately
reduce the level of its work force, Respondent then lays off
workers. In deciding who to lay off Respondent has always
relied upon ability. Only if employees are of equal ability
does seniority govern.
The record establishes that in 1978 from the last week in
July through August approximately 10 of Respondent's em-
ployees terminated their employment, either voluntarily or
involuntarily, and were not replaced. This was consistent
with Respondent's policy of cutting back its employment
complement toward the end of its season. Nevertheless, on
September 1., 1978, Respondent concluded that there was
insufficient work for the current complement of workers in
employee Hernandez' department and decided to lay off
one worker. Hernandez was the one selected for layoff. She
was among the least senior of Respondent's employees,
having been hired in April 1978. Also during her brief his-
tory of employment she was once reprimanded by supervi-
sion for spending too much time in the restroom and on two
other occasions was reprimanded by Company President
Keligian for talking instead of working. Also, an employee
had informed Keligian that while at work Hernandez had
offered the employee a drink of hard liquor.'4 And on an-
other occasion Keligian smelled what appeared to be liquor
on Hernandez' breath.
On September 1. 1978, before President Keligian advised
Hernandez about her layoff, he spoke to employee Mario
Aguilar about the matter. Keligian informed Aguilar that
he was forced to lay off Hernandez because of a lack of
work, and that she had been spending a lot of time in the
restroom. Aguilar questioned whether there was a lack of
work. Also, Aguilar, who was a member of the Union's
negotiating committee, reminded Keligian that at one of
the bargaining sessions Keligian had proposed to lay off
employees by seniority. Keligian went to his office and re-
' Based upon the credible testimony of employee Rosa Areyan, who testi-
fied that in approximately June 1978, while at work Hernandez offered her a
drink which smelled and looked like liquor, and that she informed Keligian
about this, I reject Hernandez' denial that this episode took place. Areyan
impressed me as the more credible witness.
260
(IRC(E IMPOR I EXPORI ('O1PANY
turned shortly with a slip of paper which contained the
names of between 12 to 15 employees who apparentl1
worked in lernandez' department with their hire dales. lie
showed Aguilar the paper. Aguilar pointed out that two of
the employees listed. "Maria" and "Ophelia."" were hired
after Hernandez. and thus should be laid off prior to ler-
nandez if Keligian was using seniorit' to select employees
for layoff. Keligian acknowledged that they had less senior-
ity than Hernandez, but he stated that he intended to trans-
fer them into the stamping department?
Later that day. which was the end of the workweek, Her-
nandez was notified about her layoff. She immediatel\ went
to Keligian's office and asked him why she was fired and for
a letter explaining the reasons. Hernandez has a limited
understanding of English since Spanish is her native lan-
guage. Keligian speaks no Spanish. Thus. Keligian and
Hernandez apparently had difficulty communicating with
one another. In response to Hernandez' questioning Keli-
gian assured her that she was not fired but was only laid off
due to lack of work and was eligible to collect unemploy-
ment compensation benefits. Hernandez repeatedly asked
for a letter explaining her discharge. At this point employee
Aguilar entered the office. Keligian asked Aguilar. who was
bilingual, to tell Hernandez that she was not fired but only
laid off. Aguilar communicated this message in Spanish to
Hernandez. who stated that she knew this but wanted a
letter from Keligian explaining the reasons for her layoff.
Aguilar relayed this message to Keligian who replied that
he was not required to give Hernandez the reasons for her
layoff in writing. Aguilar stated that he did not believe the
real reason for Hernandez' layoff was due to a lack of work
or the fact that she spent too much time in the restroom.
but informed Keligian that he thought she had been laid off
because she was a member of the Union's negotiating com-
mittee. Keligian denied this. Aguilar pointed out that Keli-
gian had previously said that employees would be laid off
according to seniority, and if this was a true statement then
Hernandez should not have been the one selected for layoff.
Keligian replied that his lawyer had informed him that he
had the right to lay off whomever he wanted. Aguilar at this
point left the office, whereupon Keligian and Hernandez
discussed the reasons why Hernandez had been selected for
layoff. Keligian indicated that he thought she had been
drinking on the job and also indicated that she had been
observed talking instead of working. Hernandez admitted
that she had been drinking on the job but stated that other
workers were also guilty of this and, as far as talking in-
stead of working, stated that a lot of employees "goofed-
off' at work, and she thought it was unfair that she should
be the one who was penalized for this conduct, The conver-
sation ended with Keligian learning that Hernandez had
worked for a prior employer in the shipping department.
'1 Apparently referring to Mireya de la Torre and Ophelia Ponce. who
were hired in May 1978.
'6 The description of this conversation between Aguilar and Keligian is
based upon Aguilar's uncontroverted testimony. I note that Keligian testified
that he had informed employees that he planned to transfer certain employ-
ees from Hernandez' department into the stamping department. a position
which required a comprehension of English which Hernandez lacked: the
transfers were never effected due to the strike.
lie indicated that lernandez was eligible for reinstatement
and might be recalled to work in the shipping department.
He also informed her that the Company 'as obligated to
pa' her for tLabor Day and told her to return to the plant
for a paycheck for this day's pay. Finall> Keligian. who had
taken notes of his interview with lHernandez, asked lernan-
dcz to sign them, but she declined."
T'he following week, when llernandez returned for her
Labor Day pay. Keligian asked why she had complained
about her layoff to the Union inasmuch as she had admit-
ted in her conversation with him that she had been drinking
at work and had received warnings by supervision. Hernan-
dez denied making these admissions. The discussion ended
with Keligian stating that Hernandez would not gain any-
thing by going to the Union.'l
That same week Keligian informed several employees
that at her termination interview Hernandez had confessed
to various acts of misconduct. Keligian read to the employ-
ees from the notes he had taken of that interview but re-
fused to show them the notes.!'
Assuming, argsuendo, that Respondent was hostile toward
llernandez because she was a member of the Union's nego-
tiating committee, I am unable to agree with the General
Counsel's contention that this was the reason for her layoff.
Keligian. who impressed me as a credible witness, testified
that the reason why someone from Hernandez' department
was laid off on September 1. 1978. was due to a lack of
work. General Counsel failed to adduce any evidence to
controvert this testimony. Quite the contrary, the record
shows that Hernandez was not replaced b a new hire.
Also, the record shows that during August. September, and
October. to the date of the strike, Respondent hired only
one employee (on September 18) who from his rate of pay,
was obviously not hired to work in Hernandez' department,
nor does the General Counsel advance such a contention.
In short, Respondent had a valid business reason for laying
off of an employee in Hernandez' department. And there is
a lack of evidence that Hernandez' selection for layoff was
discriminatory. There is insufficient evidence that during
the normal course of business one of the other employees in
the department would have been selected for layoff instead
of Hernandez absent Hernandez' union activities.' 0 Quite
the opposite, the record reveals that Hernandez was one of
the Company's least senior employees, and that supervision
had expressed dissatisfaction with her and thought she was
drinking liquor on the job. It is for these reasons that I shall
t The description of what was stated at Hernandez' termination interview
is based upon a composite of the testimony of Keligian and Aguilar. which
do not conflict. I have rejected Hernandez' testimony in its entirety inasmuch
as she did not impress me as a credible or reliable witness.
I Based upon Hernandez' uncontroserted testimony.
' I reject Aguilar's testimony that Keligian told the employees Hernandez
had signed a statement confessing her misconduct. Keligian impressed me as
the more credible witness on this point.
20 As indicated supra, during contract negotiations Respondent, as a part
of its bargaining proposals, had apparently indicated to the Union that it
was prepared to change its existing layoff procedure which was based on
merit to one based upon senionty. However. the fact that in laying off Her-
nandez Respondent chose not to implement this bargaining proposal but
continued to use its existing layoff procedure does not establish that Hernan-
dez was discriminated against.
261
I)I:( ISI()NS ()F: NAIIONAI lABOR R.ATIO()NS BOAR[)
recommend that the allegation pertaining to Hernandez'
layoff he dismissed in its entirety.2
I pon the basis of the foregoing indings of fact and the
entire record. I make the following:
C,()I( I SI)oNS 01 .
I. Respondent is an employer engaged in commerce
within the meaning of Section 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. All production and maintenance employees and ship-
ping and receiving employees employed by Respondent at
its facility in Los Angeles. Calilbrnia: excluding all other
employees, office clerical employees, salesmen, professional
employees, guards, and supervisors as defined in the Act.
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. Since December 9. 1977. the Union has been and is
now the exclusive representative of all employees in the
aforesaid bargaining unit ftr the purposes of' collective bar-
gaining within the meaning of Section 9 (a) of the Act.
5. By notifying a striker that he had been dismissed or
laid off because he had been replaced Respondent has en-
gaged in unfair labor practices within the meaning of Sec-
tion 8(a)(1 ) of the Act.
6. By falsely representing to employees that a union rep-
resentative indicated that the Union was not interested in
representing the employees but was only interested in sign-
ing a sweetheart contract at the employees' expense Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)( I) and (5) of the Act.
7. By unilaterally granting wage increases to employees
without prior consultation and bargaining with the Union
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(5) and ( I ) of the Act.
8. By suspending employee Jesus Camacho for I week
for engaging in protected concerted activities, Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)( 1) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(1)
of the Act by unlawfully suspending employee Jesus Cama-
cho for I week, I shall recommend that Respondent make
21 In reaching this conclusion I have considered the fact that the record
reveals that Hernandez was the only employee laid off for lack of work
during the time material to this case, and that when questioned about the
number of employees who were laid off Keligian's testimony can only be
described as vague and evasive. These circumstances make the layoff sus-
pect, but on balance I am persuaded that the General Counsel did not prove
a case of discrimination.
him whole lir any loss of earnings he may have suffered by
reason of his suspension by payment to him of' a sum of
money equal to that which he would have earned during
the period of his suspension, less any interim earnings dur-
ing this period, with the backpay computed in the manner
established in F:. WU Woolworth (ComplV, 90 NLRB 289
(19501) with interest to be computed in the manner set forth
in kflorid Sel Corporcrlion 231 NLRB 651 (1977). See.
generally. l.si.% Plumbing & ttualing C(o., 138 NRB 716
(1962).
Upon the foregoing findings of' fact, conclusions of law.
and the entire record, and pursuant to Section 10(c) of the
Act. I hereby issue the following recommended:
OR[)ER2
The Respondent. Uniworld General. Inc.. d/h/a Circle
Import Export Company/Kelvin Internationale. Los Ange-
les. California, its officers, agents, successors, and assigns.
shall:
I. Cease and desist from:
(a) Suspending from work or otherwise discriminating
against any employee for engaging in protected concerted
activities.
(b) Notifying striking employees that they have been dis-
missed or laid off because they have been replaced.
(c) Refusing to bargain collectively with Los Angeles
Joint Board of International Ladies' Garment Workers'
Union. AFL CIO. by unilaterally changing the wages or
other terms and conditions of employment of the employees
employed in the appropriate bargaining unit without prior
consultation and bargaining with the Union and by making
false representations to the employees for the purpose of
undermining the Union's representative status. The appro-
priate bargaining unit is:
All production and maintenance employees, and ship-
ping and receiving employees employed by Respon-
dent at its facility in Los Angeles. California; exclud-
ing all other employees, office clerical employees,
salesmen, professional employees, guards and supervi-
sors as defined in the Act.
(d) In any other manner from interfering with, restrain-
ing. or coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Make Jesus Camacho whole in the manner set forth
in the portion of this Decision entitled "The Remedy" for
any loss of earnings sustained as a result in his suspension.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel files and reports, and all other records necessary
22 In the event no exceptions are filed as provided in Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings. conclusions. and Order. and all objections thereto shall be deemed
waived for all purposes.
262
CIRCI E IMPORI EXPORT COMPANY
to analyze the amount of backpay due under the terms of
this Order.
(c) Post at its Los Angeles. California, facility copies of
the attached notice marked "Appendix."23 Copies of said
notice, on forms provided by the Regional Director for Re-
gion 21. in English and Spanish. after being duly signed hb
21 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted h Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
Respondent's authorized representative. shall he posted by
Respondent immediately upon receipt thereof, and be
maintained b it for 60 consecutive dass thereafter, in con-
spicuous places. including all places where notices to em-
ployees are customarily posted. Reasonable steps shall he
taken by Respondent to insure that said notices are not
altered. defaced. or covered by other material.
(d) Notify the Regional Director for Region 21. in writ-
ing, within 20 days from the date of this Order. what steps
Respondent has taken to complb herewith.
1 IS FURtl'RIR O()RtRlRE) that the complaint be dismissed
as to those allegations not specificallN found herein.
263