Great Chinese American Sewing Co.Download PDFNational Labor Relations Board - Board DecisionsJan 28, 1977227 N.L.R.B. 1670 (N.L.R.B. 1977) Copy Citation 1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Great Chinese American Sewing Company; Esprit de Corp and San Francisco Joint Board , International Ladies Garment Workers Union , AFL-CIO. Cases 20-CA-9369 and 20-CA-9424 January 28, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND WALTHER On December 2, 1975, Administrative Law Judge David G. Heilbrun issued the attached Decision in this proceeding. Thereafter, Respondents filed excep- tions and a supporting brief. The General Counsel filed limited cross-exceptions and a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that, al- though Respondents suffered substantial economic loss in an 8-month period preceding their shutdown of the Great Chinese American Sewing Company plant (GCA) and had been urged repeatedly by their accountant to close the GCA operation, the reason for the GCA closure was not solely economic. That i Respondents have excepted to certain credibility findings made by the Administrative Law Judge It is the Board 's established policy not to overrule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings The Administrative Law Judge dismissed certain paragraphs of the complaint alleging violations of Sec 8(axl). See fns 6 and 8 of the Administrative Law Judge's Decision As no exceptions have been filed to these conclusions , we adopt them pro forma 2 We adopt the Administrative Law Judge's findings and conclusions that Respondents ' business was integrated not only as to ownership but also as to financial and other operations , including control of labor relations, through Esprit de Corp's president, Tompkins (who was also Great Chinese American Sewing Company's vice president) We find no merit in Respon- dents' contention that these cases are controlled by Milo Express Inc and Keystone Lawrence Transfer Company, 212 NLRB 313 (1974), in which the Board found that the respondents were separate businesses Unlike the subject case , in Milo Express the only significant evidence to support a single or joint enterprise finding was that of common ownership In finding that Esprit and GCA constitute a single employer, the Administrative Law Judge relied, inter aha, on Altemose Construction Company, 210 NLRB 138 (1974), enforcement denied on unrelated grounds 514 F 2d 8 (C.A. 3, 1975) The Board's decision on the single-employer issue in that case remains valid 3 Cf Town & Country Mfg Co v NLRB , 316 F.2d 846 (C A 5, 1963), enfg. 136 NLRB 1022,1028-31 (1%2) Member Fanning would adopt the Administrative Law Judge's recom- mendation that Respondents be ordered to reopen the Great Chinese American Sewing Company plant, reinstate its employees with backpay, and 227 NLRB No. 248 the precipitating reason was the advent of the Union. He therefore found that the GCA plant closure with the consequent termination of employees violated Section 8(a)(3) of the Act. To remedy the unfair labor practices, he ordered that Respondents reopen GCA and recognize and bargain with the Union. Respondents argue, inter alia, that the recommend- ed Order to reopen is punitive because it would cause undue economic hardship. They argue that the order to bargain is unwarranted because union representa- tives and members had been guilty of flagrant strike misconduct. Apart from arguing that Esprit has sufficient domestic production for GCA, the General Counsel does not refute Respondents' arguments of economic hardship that reopening would entail. He states in his brief, "To be sure, the Judge's recom- mended order imposes substantial expense upon Respondents, but this is merely the cost of remedying the consequences" of Respondents' illegal acts. The Administrative Law Judge adopted this view. We do not adopt the Administrative Law Judge's recommended Order that Respondents reopen the GCA plant because, we hold, compliance with such Order under the facts of this case would likely be unduly burdensome3 and is unnecessary to effectuate the policies of the Act.4 Rather than force the reestablishment of an unprofitable operation, we find that the policies of the Act will be sufficiently fulfilled in this case by our full make-whole order covering the employees of the terminated plant. We agree with the Administrative Law Judge that Respondents' unfair labor practices have been exten- recognize and bargain with the Union as their exclusive representative. That plant was an integral part of Respondents ' domestic production operations, and Respondent Esprit de Corp continues to engage in such operations by using subcontractors. Moreover, Respondents were willing and desirous of continuing to operate that plant, provided only that its employees desisted from their union activities , as is clearly shown by their unlawful offer of substantial wage increases conditioned on the employees ' rejection of the Union's overtures Such offer was made notwithstanding Respondents' concern for the operating losses they were then mcurnng Although Respondents contend that purchasing equipment necessary to resume operations will impose an undue economic burden on them , much , if not all, of those costs have already been offset by the proceeds of the sale of the equipment upon the discriminatory closing of the plant Whatever shortfall there may be is a result of Respondents' unfair labor practice, and should not operate as a justification for not requiring Respondents to take the actions necessary to remedy the unfair labor practices found herein In all the circumstances of this case, Member Fanning is persuaded that resumption of the discriminatorily closed operations is necessary if the Board is to provide a remedy for all of the unfair labor practices committed by Respondents. 4 The Administrative Law Judge's reliance on cases in which the Board ordered reopening is misplaced . Townhouse T. V. & Appliances, 213 NLRB 716 (1974), not enforced on this point 531 F.2d 826 (C.A. 7, 1976), and N C Coastal Motor Lines, Inc, 219 NLRB 1009 (1975), enfd. 542 F.2d 637 (C A 4, 1976) In Townhouse, supra, the Board found that the employer 's business had been economically profitable and a substantial outlay was not required to start anew (The Court of Appeals for the Seventh Circuit denied enforce- ment on this point, holding that the capital outlay ($16,000 ) and other costs attendant on resumption of operations would be too financially burdensome to the employer ) In N C Coastal Motor Lines, supra, the employer had not entirely discontinued its trucking operation and the Board determined that resumption would cause only minimal problems. GREAT CHINESE AMERICAN SEWING CO. sive and pervasive, preventing a free election. Ac- cordingly, we will issue a bargaining order to remedy the unfair labor practices found. The record shows that Respondents closed GCA without giving the Union, the employees' majority representative, an opportunity to bargain with respect to the plant closure before it was effected. We find that this conduct violated Section 8(a)(1) and (5) of the Act.5 AMENDED CONCLUSIONS OF LAW In view of the above, the Administrative Law Judge's Conclusions of Law are amended to add the following paragraph as Conclusion of Law 5: "5. By their unilateral action in closing the Great Chinese American Sewing Company plant and con- tracting out the work previously performed by GCA employees without prior bargaining with the Union concerning the decision to contract out the work or the economic effects thereof on them, Respondents have violated Section 8(a)(1) and (5) of the Act." AMENDED REMEDY We shall require that Respondents recognize and bargain collectively with the Union, at the Union's request, including bargaining concerning the decision and effects of the plant closure on the GCA employ- ees .6 We shall order Respondents to make whole all employees employed at the Great Chinese American Sewing Company who were discriminatorily termi- nated on account of Respondents' closing GCA, for any loss of pay suffered by reason of the discrimina- tion against them by paying to each of them a sum of money equal to the amount he or she would normally have earned as wages from July 17, 1974, when Respondents discharged the strikers, until such time as each secures , or did secure, substantially equiva- lent employment with other employers, computed in accordance with the Board's usual formula set forth in F W. Woolworth Company, 90 NLRB 289 (1950), s Schwab Foods, Inc, d/b/a Scotts IGA Foodliner, 223 NLRB 394 (1976), ALJD, 11,C,3, pars. 7, 8, 9; Trading Port, Inc., 219 NLRB 298, 300 (1975). 6 We adopt the Administrative Law Judge 's determination that the circumstances of this case warrant a broad bargaining order . We find that Respondents ' unfair labor practices were so pervasive as to tend to undermine the Union's majority support We do not find that the strike misconduct demonstrates "a total disinterest" by the Union in pursuing the "peaceful legal process provided by the Act ..." Herbert Bernstein, Alan Bernstein, copartnership d/b/a Laura Modes Company, 144 NLRB 1592, 1596 (1963) It does not warrant withholding an otherwise appropriate remedial bargaining order. We do not condone the Union's misconduct The incidents found by the Administrative Law Judge are attributed mostly to unidentified pickets but also to union agents Strike misconduct in this case was the subject of a settlement agreement with respect to unfair labor practice charges against the Union Other misconduct attributed to this Union in another case before the Board, Triumph Curing Center, Inc., 222 NLRB 627 (1976), was settled by court order enjoining the Union A further repetition of like conduct attributable to the Union in any cases coming before the Board will be scrutinized with a view to withholding our remedial processes 1671 and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In the event that Respondents reopen the Great Chinese American Sewing Company operation, we shall order that Respondents offer to each of the aforesaid discriminatorily terminated employees rein- statement to his or her former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his or her seniority or other rights and privileges. The strikers' backpay shall be based upon the earnings which they normally would have received from July 17, 1974, when Respondents discharged the strikers,7 to the date of Respondents' offer of reinstatement less any net interim earnings, and shall be computed on a quarterly basis in the manner set forth in F W. Woolworth Company, supra, and Isis Plumbing & Heating Co., supra.8 In ordering backpay and reinstatement for Frankie Ma, whom Respondents discriminatorily discharged on July 9, 1974, our Order directs that his backpay will commence from July 9, 1974. In other respects, backpay and reinstatement obligations imposed by this Order on Respondents with respect to employees discharged by virtue of the GCA plant closing are equally applicable to Frankie Ma. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Great Chinese American Sewing Company and Esprit de Corp, San Francisco, California, their officers, agents , successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their activi- ties on behalf of the Union. (b) Threatening to discharge employees for engag- ing in activities in support of the Union. 7 We modify the Administrative Law Judge 's recommended remedy which dated the backpay period for the strikers from August 2, 1974, when, he found, they applied at Esprit de Corp for reinstatement . Our modification establishes the backpay period from July 17, 1974, when the employees were discharged by virtue of the GCA plant closure . It is the Board 's rule that employees who are discharged while on strike must make an unconditional application for reinstatement to establish their right to their jobs and resumption of wages, unless there is a showing that such application would have been futile. Valley Oil Co, Inc, 210 NLRB 370 (1974) We find on this record that any application would have been futile-the GCA plant having closed 8 The record shows that , after the GCA plant closure, Respondents transferred a few GCA employees to Esprit de Corp to complete GCA's garment production . These employees are also entitled to the same reinstatement rights and backpay as are the other GCA employees. However, we shall order that their backpay commence from the date of their layoff from Esprit after completion of the GCA work 1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Threatening employees that their paychecks will be withheld unless they turn over to Respondents any authorization cards they execute for the Union. (d) Promising and then granting employees a pay raise to induce abandoning support of the Union. (e) Informing employees that the Great Chinese American Sewing Company will close its plant unless they abandon support of the Union. (f) Discharging any employee for engaging in concerted protected activity or for soliciting authori- zation cards for San Francisco Joint Board, Interna- tional Ladies Garment Workers Union, AFL-CIO, or any other labor organization. (g) Terminating any of their operations in retalia- tion for activities of their employees in support of the Union. (h) Refusing to bargain in good faith with San Francisco Joint Board, International Ladies Garment Workers Union, AFL-CIO, including bargaining about the decision to close the Great Chinese American Sewing Company plant at San Francisco, California, and the effects of said decision on the unit employees. (i) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with San Francisco Joint Board , International Ladies Garment Workers Union, AFL-CIO, as the exclusive bargaining repre- sentative of their employees in the appropriate collective-bargaining unit, including bargaining con- cerning their decision to close the Great Chinese American Sewing Company's San Francisco, Califor- nia, plant and the effects of the plant closure on their employees. The appropriate collective-bargaining unit is: All production and maintenance employees at Great Chinese American Sewing Company's San Francisco plant, excluding office clerical employ- ees, guards, and supervisors as defined in the Act. (b) Offer backpay and reinstatement to Frankie Ma and all persons employed on July 12, 1974, at the Great Chinese American Sewing Company (includ- ing any on layoff status with reasonable expectancy of recall or otherwise possessing employee status on this date), and make them whole for any losses they suffered by reason of the discrimination against them in the manner set forth in the section of this Decision entitled "Amended Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at their premises in San Francisco, Califor- ma, and forthwith mail to all affected employees, copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondents' authorized representative, shall be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dents to insure that said notices are not altered, defaced, or covered by any other material. A copy of said notice, duly signed in the same manner, shall be immediately mailed to the last known address of each person formerly employed (as described in par. 2(b) above) at the Great Chinese American Sewing Company. (e) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. 9 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 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discrimi- nate against any employee because of activities on behalf of San Francisco Joint Board, Internation- al Ladies Garment Workers Union, AFL-CIO (herein ILGWU), or any other labor organization. WE WILL NOT terminate any of our operations in retaliation for activities of our employees in support of ILGWU, or any other labor organiza- tion. WE WILL NOT interrogate employees concerning their activities on behalf of ILGWU, or any other labor organization. WE WILL NOT threaten to discharge employees for engaging in activities in support of ILGWU, or any other labor organization. WE WILL NOT threaten to withhold paychecks from employees unless they turn over to us any authorization cards they have executed for ILGWU, or any other labor organization. GREAT CHINESE AMERICAN SEWING CO. 1673 WE WILL NOT promise and then grant employ- ees a pay raise to induce abandoning support of ILGWU, or any other labor organization. WE WILL NOT inform employees that the Great Chinese American Sewing Company will close its plant unless employees abandon support of ILGWU, or any other labor organization. WE WILL make whole Frankie Ma, who was discharged on July 9, 1974, and those persons discharged when we closed the Great Chinese American Sewing Company plant in July 1974, for any loss of pay resulting from their discriminatory discharge. Backpay will run from the date of discharge until such time as the aforesaid employ- ees secure substantially equivalent employment with other employers or, in the event we reopen the Great Chinese American Sewing Company plant, until we reinstate them. WE WILL, in the event we reopen the Great Chinese American Sewing Company plant, rein- state each of the aforesaid employees to his or her former position or, if such position no longer exists, to a substantially equivalent position. WE WILL bargain, upon request, with San Francisco Joint Board, International Ladies Gar- ment Workers Union, AFL-CIO, as exclusive representative of employees in the appropriate bargaining unit, including bargaining about our decision to close the Great Chinese American Sewing Company plant and the effects upon our employees. The appropriate bargaining unit is: All production and maintenance employees of Great Chinese American Sewing Compa- ny, San Francisco, California, excluding office clerical employees, guards, and super- visors as defined in the National Labor Relations Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights protected under the National Labor Relations Act. GREAT CHINESE AMERICAN SEWING COMPANY; ESPRIT DE CORP 11 and 31, 1974 (the earlier one amended March 7, 1975), and amended consolidated complaint issued on April 9, 1975, alleging that Great Chinese American Sewing Com- pany and Esprit de Corp (called GCA and Esprit, respec- tively, and collectively called Respondents) violated Sec- tion 8(a)(l) and (3) of the National Labor Relations Act, as amended, by creating the impression of surveillance of employees' activities on behalf of San Francisco Joint Board, International Ladies Garment Workers Union, AFL-CIO, herein called the Union, interrogating employ- ees concerning their union activities and those of fellow employees, promising and then granting employees a pay raise to induce abandoning support of the Union, threaten- ing to discharge employees for engaging in activities in support of the Union, threatening employees that their paychecks would be withheld unless they turned over to Respondents any authorization cards they had executed for the Union, informing employees that GCA would close its plant unless they abandoned support of the Union; by discharging Frankie Ma because he engaged in union or other protected concerted activities and by terminating operations of GCA on July 17, 1974, with attendant discharge of all employees, in retaliation for their activities supporting the Union. Upon the entire record in this case, including my observation of the witnesses, and upon consideration of briefs filed by General Counsel and Respondents, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENTS AND THE LABOR ORGANIZATIONS INVOLVED Esprit, a corporation engaged in manufacturing women's apparel at its facility in San Francisco, California, annually purchases supplies valued in excess of $50,000 directly from suppliers located outside the State of California and annually sells goods and services valued in excess of $50,000 directly to purchasers located outside the State of California. GCA, a corporation formerly engaged in sewing apparel at its facility in San Francisco, California, sold goods and services valued in excess of $50,000 to Esprit during calendar year 1974. I find that Esprit and GCA are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union and its parent, International Ladies Garment Workers Union, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act.' II. THE ALLEGED UNFAIR LABOR PRACTICES DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge: This case was heard at San Francisco, California, on various dates during July 8-31, 1975, based on charges filed on July ' Par . IV of the amended consolidated complaint names three entities as labor organizations jointly engaged in a representational plan. Of these, Local 101 was not the subject of evidence and bears no further treatment Reference to the International Union is only formalism based on admimstra- Facts and Discussion Esprit designs, produces, and distributes women's junior fashion garments at premises on Minnesota Street. Its stockholders are Douglas Tompkins (jointly with his wife), Jane Tise, and Allen Schwartz. For domestically produced tive notice See International Ladies' Garment Workers ' Union, AFL-CIO (Georgetown Dress Corporation), 214 NLRB 706 (1974) The convenient abbreviation "Umon" is limited to the San Francisco Joint Board (ILGWU), as this entity solely emerges from the proofs with significant party standing 1674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD apparel lines Esprit utilizes sewing contractors to finish garments from quantities of cut fabric.2 GCA originated with ownership divided between Esprit, Carole Livingston, Esprit's production manager, and interests of Jim Chin, a sewing contractor. Corporate minutes treating ownership participation by Esprit recite that "a principal business of [GCA] will be . . . to provide preferred sewing services for the requirements of [Esprit]." Subsequently GCA incorpo- rated and Esprit purchased additional interest establishing an ownership configuration from early 1973 onward of 90 percent by Esprit and 10 percent by Carole Livingston. Near that time Mike Kozak was employed as president and general manager of GCA, which occupied premises on Washington Street outfitted with modern sewing machines and related equipment necessary to handle, sew, trim, and press garments. Virtually all GCA's work was provided by Esprit as part of the latter's overall domestic production.3 Initial capitalization of GCA was $20,000 and at all times during 1973 and 1974 working capital was infused by loans payable to its stockholder Esprit 4 The outstanding loan balance fluctuated from a low of $1,237 shown in the unaudited financial statement for September 1973 to a high of $100,014 shown similarly for July 1974. The March 1974 statement, transmitted July 22, 1974, showed net operating loss for the month of $18,872 and a loan balance payable to Esprit at the time of $75,157. During June 1974 Tompkins (president of Esprit; vice president and treasurer of GCA) created a management team to analyze deficiencies in GCA's functioning and to propose corrective action.5 Members were Larry Sanders, Esprit's night manager for quality control and shipping, Gerda Kainz, Esprit's assistant production manager, and Henry Gruchacz, assistant to Esprit's president and substi- tute general manager . Sanders assumed full-time operation- al management of GCA, Kainz was to appear part-time reviewing piecework sewing rates and recommending production improvements while Gruchacz was to assess general effectiveness of the program. Overt functioning by the team commenced approximately July 1. Kozak was directed to vacation at that time while subsidiary functions of Floor Supervisors Handa Lai (Pui Yee) and Yook Yung Lee (referred to formally in the record as Zock Zung Lee and otherwise as Lani or Lonnie Lee) were theoretically unaffected by the change. On July 4 Frankie Ma had commenced extensive distribution and collection of union authorization cards among employees. This was primarily achieved on the July 2 The industry recognizes two modes of performance by such contractors. unit shop technique whereby a garment is sewn to completion by one person and section shop technique whereby a series of sewers, each performing repetitive subassembly, produce the completed garment. 3 During a representative period GCA performed 17.6 percent of all Esprit 's contract sewing Esprit also marketed several lines of imported apparel which were completely produced overseas 4 Respondents' financial statements from the time of GCA's October 1972 incorporation were received in evidence During the period September 1972 to October 1973 GCA's gross income was inflated with production bonuses totaling $66,104 paid it by Esprit for finished lots For convenience only the years 1973 and 1974 are described in greater detail since a pattern or financial management had sufficiently emerged to make those years representative of operational losses S All dates and named months hereafter are in 1974, unless indicated otherwise 6 This observation by Handa is the basis for subpar . X(a) of the amended 4 holiday (a Thursday), the weekend following, and at GCA on July 5 and 8. Employees Lily Lee, Lam Bick Chung, and Nam Hing Leung assisted him in the endeavor. Ma testified without contradiction that while at work during the morning of July 8 he was pointedly observed from 20 feet by Handa Lai in the act of receiving one of the authoriza- tion cards (blue green in color) back from an employee.6 Ma delivered an accumulation of executed authorization cards to the Union's office and a resultant written demand for recognition was sent GCA on July 12. Recognition was declined by letter of GCA's counsel dated July 15 and the Union filed a representation petition the following day. GCA employed 102 persons during its payroll period ending July 12 (including those working only a partial workweek). This total included supervisors, specialty sew- ers, bundlers, sewing machine mechanic, payroll bookkeep- er, operators, trimmers , pressers, and janitors. An addition- al 25 persons were shown on the payroll without earnings for the week. By July 12 cards clearly authorizing the Union to serve as collective-bargaining representative had been signed by 83 persons, including 16 of the group with "zero gross pay." GCA employees performed garment assembly with commonality of supervision, wages, benefits, and conditions of employment. A production and maintenance unit with customary exclusions of office clerical employees, guards, and supervisors is here appropriate for purposes of collective bargaining. Mark J. Gerry, Inc. d/b/a Dove Manufacturing Company, 128 NLRB 778 (1960). Kozak was obviously a supervisor within the meaning of the Act while Handa Lai is similarly excluded on the basis of testimony, including her own, showing unroutine supervisory func- tions involving independent judgment in assignment of work to numerous sewers and their layoff or recall according to production needs. Elizabeth Tan is excluded as an office clerical employee. Deletion of these three from the active payroll total of July 12 leaves a majority based on 67 cards in a unit of no more than 99 persons.? Ma had been employed by GCA as a bundler since May 1972. His duties entailed unbundling cut garment compo- nents and rebundling them, by size and color with appro- priate ticketing, into a grouping sufficient to produce one finished garment. Such bundles were supplied to operators in commencement of the factory process leading to final output. Sanders testified that within a few days of the management team's appearance he focused on Ma's bundling technique as an inefficient impediment to ade- quate production. He visualized instead bundling together consolidated complaint, alleging unlawful creation of the impression of surveillance Without proof that she deliberately stationed herself to make such observation, as contrasted to random glancing , this allegation fails as a matter of law 7 Pik Yu Ko and Joseph E Sena were suggested to be supervisors but their status is disregarded since it is without consequence to determination of majority. Yook Yung Lee is excludedfor purposes of determining majority on grounds that, while arguably a statutory supervisor , she signed an authonza- tion card Her particular duties were not adequately described and a finding either way would not affect the Union's majority No other purpose is served by treating the issue of her supervisory status as assertion that she tainted other cards by solicitation is wholly without evidentiary support Any card- signing employee among the 67 who appeared with earnings on the July 12 payroll, but did not work on the actual date of July 12 itself, is shown by uncontradicted evidence to have been on temporary layoffstatus unaffecting inclusion in the unit Each of the 67 card-signing employees is listed by name in the first portion of attached "Appendix A" [omitted from publication]. GREAT CHINESE AMERICAN SEWING CO. 1675 components for approximately 15 identical garments and using this as the primary unit of handling during sewing operations. Sanders testified to approaching Ma and by adequate language communication stating he "would like to institute a new bundling procedure because the one that was happening was too slow and was very inefficient." He recalled that Ma aggravatingly refused to change and Kainz was enlisted to seek the change. Kainz testified that she spoke inconclusively to Ma on a day following the July 6-7 weekend. She relayed his unwillingness to change after "doing it for 3 years" to Sanders in completion of her "part of it." Gruchacz testified that he ultimately spoke pleading- ly with Ma on the subject (without recalling "the chronolo- gy of it" but believing the discussion occurred on July 3), finally extracting an assent (of which he advised Sanders) to "do the new method." Sanders monitored the change on July 5 and concluded Ma was resisting by withholding normal dexterity and performing slowly. He described then determining to recommend Ma's termination following an emotional outburst among employees on July 8, reportedly attributed to Ma's rumoring that Kozak would not return. Sanders told this to Gruchacz who in turn contacted Tompkins, leading to a mutual decision terminating Ma. Sanders implemented this before Ma started work on July 9. Ma testified that he initially debated the wisdom of switching bundling methods with Sanders, but ultimately agreed to a contest which demonstrated his way was speedier. He recalled appearing for work on July 9 to be told by Sanders of layoff for stated lack of work. On July 10 Tompkins caused preparation of a document, written in English and Chinese, setting forth his position on 8 Shortly before this, it was reported to Tompkins that Handa Lai was at odds with Yook Yung Lee and that the latter was promoting unionism On or about July 10 Tompkins summoned Yook Yung Lee, together with her daughter Lily Lee, to his office at Esprit Lily Lee testified that on this occasion he asked if they (addressing mother and daughter) were involved with union activity, stated that "If you scratch my back, I'll scratch yours," and advised he would grant a raise to employees Tompkins denies these matters in testimony describing Lily Lee's presence as needed for translation and that his purpose in so conferring was to sooth apparent frictions, to deter Yook Yung Lee from soliciting for a union, and to advise that pay rates might be elevated as part of a general effort toward improving operations. Gruchacz, also present, generally corroborates Tompkins I credit Tompkins' testimony respecting this incident and discredit Lily Lee, who was demon- strated to be a highly unreliable witness By accepted facts the meeting did not go beyond permissible objectives nor may it be said that reference to a higher pay rate was associated with the Union I find insufficient proof to support subpars X(b) and (c) of the amended consolidated complaint 9 Most of GCA's employees are Chinese with slight or limited fluency in the English language . The language principally used by these employees is the Cantonese dialect of Chinese. The mode of converting Tompkins' remarks was interpretation and translated reutterance by Handa Lai from English to Cantonese . On particular subjects Elizabeth Tan would, for clarity, convert Tompkins ' English to the Mandarin dialect (in which Handa Lai was also fluent) before final expression of meaning in Cantonese Gruchacz , Sanders, and Kainz were each present at this meeting. is This testimony is primarily the comprehension of Handa Lai's Cantonese translation The testimony of record (through an interpreter) was that a raise of 25 cents per hour would be given if employees did not join the Union and that if they did join Tompkins would close GCA. Lam Bick Chung , Gin Song Leung , and Sara Svidovsky also claim to have compre- hended the same meaning from Tompkins ' English utterances before translation (Tompkins concedes some departure from the prepared text of the described document and the adding of "subtle points"). I believe the employee witnesses are truthfully and accurately recalling what was communicated in Cantonese by Handa Lai. I also accept their testimony that it coincided in meaning with Tompkins' English version (referring only to Lam Bick Chung , Gin Song Leung, and Sara Svidovsky) Their facility with GCA's status and business future.8 This document formed the outline for remarks he made to assembled employees of GCA over the course of an approximately 45-minute meeting held at the premises in late morning of July 12.9 Moon Har Chan Wong, Lam Bick Chung, Wai Fong Wong Lam, Gin Song Leung, Sara Svidovsky, and Bione Y. Sue each credibly testified that the translation of Tompkins' remarks expressed a promise to raise the base hourly wage of Tompkins' by 25 cents if they would, generally, collec- tively forsake the Union, and a threat to close the business if they persisted in seeking representation by the Union.io Additional testimony of Lam Bick Chung and Wai Fong Wong Lam relates to subparagraphs X(d), (e), and (f) of the amended consolidated complaint. Chung recalled that, after Tompkins' speech, Handa Lai appeared in the department carrying paychecks. Chung exhibited expecta- tion of receiving her check but instead experienced Handa Lai's request that she sign her name, with associated inquiry whether Chung had signed the Union's card. Chung denied having done so and Handa Lai left without distributing checks. After an interval she returned from the lower floor to release checks and asked employees to sign their names and addresses in replacement of lost records. Chung further testified that subsequently on the same day Handa Lai stated that, if an employee signed the Union's "greenish- bluish" card then "on Monday you do not need to return to work," while if they had not signed such card then "return to work as usual ." Lam testified that on July 12 Handa Lai requested a group of employees to give her any signed "green" cards. Lam recalled that Chung, among those present, asked for paychecks to which Handa Lai replied English was demonstrated by cross-examination to be limited , but not so as to cast doubt on this aspect of testimony Further, the more spontaneous thrust of testimony by Tan, Kamz, and particularly Gruchacz tends to confirm what the three employee witnesses thought was spoken in English Bione Y. Sue testified in much the same vein, however, I am unconvinced that her comprehension of English is sufficient to give weight to this aspect of her recollection Significantly the document's text expresses $2 25 (a 25-cent hourly increase) as management's "intention" respecting minimum wage for operators and relates such a wage to "both union & non-union" factories, alluding also to the prospect of "no" sewing shop absent profitability - a condition which "shall" cause closing I am convinced the presence of such key words and passages was the foundation from which bilingual threats and promises arose Implicit in this factual resolution is my further belief that Respondents ' witnesses are deceitful in their litanistic denials . As to Handa Lai I emphatically discredit her denial that the Cantonese version was not as testified to by six witnesses . I recognize the critical nature of this determina- tion and the unusual dynamics present during the controlling moments of July 12. Tompkins, a figure of some awe among personnel of GCA as their big "boss," was appearing somewhat extraordinarily in the context of union activities complicating the sudden presence of a management team While the Chinese version of prepared text (established in the record as essentially similar to what was composed in English and presumably available to, and comprehensible by, Handa Lai) was extant, it is also true that Tompkins and Handa Lai were interacting for the first time Handa Lai exhibited plain bias in favor of Respondents and a nature that would suggest boldness in her dominion over rank-and-file employees. She did, I believe, convey Tomp- kins' message of a direct promise that wages would increase in exchange for cessation of union activities and an express threat of plant closure retaliatory of the employees' then known support for the Union. Of greatest importance is Handa Lai's own understanding of Tompkins ' remarks, as clearly she felt he was saying the plant would close upon advent of a union Thus viewed, the statement concerning higher pay is a promise constituting violative restraint while the threat of plant closing is a prediction of adversity without objective factual basis. See Hertzka and Knowles, 206 NLRB 191 (1973 ), and cases there cited. Accordingly, I find that probative evidence supports subpars X(g) and (h) of the amended consolidated complaint. 1676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "After you give me your signed [green ] cards" and walked away. i i On July 13 a meeting occurred at the Union's offices with approximately 100 GCA employees in attendance. Union Representative Ralph Smith moderated while Ma (then terminated) and certain operators spoke of Respondents' actions during the week. Discussion traversed principles of protected union activity, potential unlawfulness of plant closing , circumstances of Ma's termination , and Handa Lai's remarks to employees concerning authorization cards. In this context a strike vote was affirmatively taken. The strike at GCA commenced on July 15 and continued there an additional 2 days. On July 17 Tompkins decided to close the plant and a notice to that effect was posted. This caused the Union to shift primary attention to Esprit (approxi- mately 4 miles distant) where picketing and related activity commenced on July 18. Esprit sought legal relief in proceedings culminating August 6 with issuance of a preliminary injunction that limited the manner of picketmg and restrained obstruction of business ingress and egress by persons or vehicles.12 On October 11 the Union informed Tompkins that its strike was "officially terminated immedi- ately" upon his "acknowledgement" that approximately 75 listed strikers would be returned to work. The strike and its spillover to Esprit had required prompt improvisation by management. Sewing work in progress was diverted to other contracters. Selected nonstriking employees were employed briefly at Esprit premises over a short adjustment period . During the fashion seasons following strike com- mencement , Esprit's domestic output fell sharply in relation to overseas production.13 Respecting the decision to close GCA, Tompkins narrat- ed the considerations involved in testimony containing the following passages: The problems facing the shop . . . were principally financial; but . . . for reasons that we didn't entirely 11 Lam 's described testimony is past recollection recorded. I attach weight to it because of inherent probability from the overall fact situation, because it is corroborated in substance by the persuasively accurate memory of Chung, and because it is consistent with Handa Lai's inquisitiveness concerning the extent of signing on "greenish -bluish" cards according to credible testimony of Mee Yuet Yee Accordingly, I find that probative evidence supports subpars X(d), (e), and (I) of the amended consolidated complaint 12 Respondent contends that, irrespective of whether a majority was established by the Union among GCA employees and other justification present , no bargaining order should obtain because of conduct occurring in connection with the strike and picketing This specific defense is premised on Herbert Bernstein et al d/b/a Laura Modes Company, 144 NLRB 1592 (1963) Proven facts relating to this defense cover several episodes or forms of characteristic conduct On July 15 Union Representative Richard Sorro pugnaciously forced William Oetinger, Esprit's quality control inspector, against an outside wall at GCA and briefly prevented him (in front of gathered pickets) by physical restraint from entering the plant On July 16 Union Representative Willie March angrily accused employee Fritz Schulz of dropping a single edge razor blade toward him from a second floor window of the GCA plant March followed this accusation by repeatedly punching Schulz The beating occurred outside GCA' s rear entrance as Schulz sought to reach work the second morning of the strike . Also on July 16 an attempt was made by Gruchacz , Sanders, and Peter Yee, a truckdnver employed by Esprit , to carry garments into GCA for pressing Persons known to be striking employees intercepted this effort and grabbed at garments carried by Gruchacz as he strode toward the building He attempted to break their holds by vigorous swiveling action , then chose to return his armload of garments to the vehicle in which they were brought On July 18 the first of many obstructive episodes occurred at Esprit A van understand . . . this incentive system was not working .... We'd hoped to instill some of it by raising the base salary [and] convincing our employees that the rates were fair . . . but we also considered that the shop was in a precarious balance of whether we were going to win this sense by each employee of getting behind, enthusiastically behind, this system and making it work for them; and, in light of the strike, a strike that frankly took us totally unaware ... . ... There was my summing up of the strike and of the activities of the strike and especially the mood and a point of view that I saw employees taking at GCA and on the street, on the picket line, to me demonstrated that the - that our abilities to convince people to get behind the system and to work for it, that the attitudes didn't exist to make the system work immediately in the future, and it was going to be a series of continual losses and just putting us further and further into the hole and with sort of the violent attitudes that I thought the Union was taking in their approach to it, was not encouraging any kind of good working, future working, relationships between just the shop and the employees, that people were polarized and divided into camps at that point, and this was just a shroud that hung over the entire business; and, m light of having lost money continually, I felt that it was tine in terms of my business responsibilities to my company, of which I act as the president, that we would take our losses at that point and call it quits, and it was on that basis that I made my decision. This summation by Tompkins provides an ideal point of departure for decisional rationale. The several 8(a)(1) allegations are principally disposable by ordinary resolu- tion of credibility respecting utterances, where evidence is present in support.14 The allegation of majority representa- tion is supported through extensive proof of authentic cards driven by Michael Snead, Esprit's shipping manager, was blocked from backing completely to the loading dock edge by several pickets as two of these literally climbed onto the vehicle's rear floor area and lay there until removed by police The following week Snead drove to a postal facility and upon arrival experienced an attempt by Union Representatives Phil Russo and Sorro, following in a car, to deliberately cut off access to a parking space On an occasion in early 1975 police officers were at Esprit responding to one of many calls that they clear pickets blocking vehicle passage and a group of several pickets openly assaulted one policeman A further incident near that time occurred at GCA where equipment was being removed by Gruchacz and a crew The truck used for this purpose was beaten upon with clubs, objects were hurled at Gruchacz' group, and he himself was punched by an unidentified person. 13 During the "holiday '74" season the value of imports exceeded, for the first time, the value of all domestically produced lines . This preponderance repeated for "spring '75" and by "summer '75" onward the former value more than doubled the latter 14 In addition to 8(a)(l) dispositions appearing above, the allegation of subpar X(i) is independently validated by sufficient proof. The violative promise to raise pay occurred on the last regular workday of GCA's operations and payroll records covering that week show apparent implemen- tation. Of the 64 sewers (payroll codes 2000 and 3000) employed that week, the gross pay of 35 was $90 (or $90.01) which is arithmetically $2 25 for a 40- hour week. While many earned less than this amount, their total hours ("make-up" - or plain hourly - plus such hours as were spent on actual piecework time) are not shown on the payrolls in evidence. Any who worked from a fractional hour to several hours less than 40 for the week would have received a high $80 figure in minimum gross pay earnings, which obtains in many of the remaining cases Although this ambiguity exists in the records, both Wai Fong Wong Lam and Sara Svidovsky testified without contradic- GREAT CHINESE AMERICAN SEWING CO. executed by a sufficient number of employees with knowl- edgeable understanding of their purpose as to establish designation of the Union for the appropriate bargaining unit . The remaining issues (outside those pertaining to remedy) arise under the 8(a)(3) branch of the case, one singularly affecting Ma and the other of sweeping signifi- cance to GCA's general work force. On both planes, that of viewing individual circumstances concerning Ma and sifting the overall dynamics that obtained during the critical period of early July, I draw inferences which reject Respondents' defenses.15 Ma had been employed without known incident for over 2 years. Gruchacz observed the ostensibly inefficient bundling method in March during an orientation visit at GCA, Livingston viewed fabric handling as a principal influence on sewing production, and Kainz testified that Handa Lai had stated the "bundling system [could not produce ] enough work." This background provides context for the corrective endeavors undertaken by management team members. In this setting, the efforts of Sanders were tentative at best. I believe he has embellished the facts by now describing his dismay over Ma's resistance to change as bona fide confrontation with an insubordinate employee. Regardless of Respondents' obvious entitlement to manage the factory and to expect responsive compliance with supervisory directives, the fact situation here does not permit moving to conclusions based on mechanistic appli- cation of these powers. First, it is clear that Sanders passed the problem to Gruchacz (through Kainz) and at this point Ma concededly agreed to undertake the change. Aside from the compounding presence of an insufficient language vehicle, and individual perceptions of whether an experi- mental contest was mounted and not grudging acquies- cence to authority, Ma did not persist to a point beyond simple surprise and undertook endeavors recognized by Sanders as at least superficial fulfillment of new bundling techniques. The time sequence is scrambled by Respon- dent's witnesses as Kainz is persuasively positive she first spoke to Ma on July 8, while Gruchacz (supposedly contacted after this effort) insistently testified he sought to resolve the problem on July 3. Given Kainz' version, Ma would have had a suspiciously brief time in which to show adeptness at new tasks. Finally, the activating event on tion that they actually received the higher rate. The timing of this raise, absent convincing evidence that one was planned as to fact and effective date prior to sudden support for the Union among employees, corresponds to established theory holding such action to be a violation Cf Texas Transport & Terminal Co, Inc 187 NLRB 466 (1970) Accordingly, I have included a provision in the recommended remedial Order that Respondents cease and desist from such conduct This should not be construed as a requirement that such increases as were granted be rescinded . See Steel-Fab, Inc, 212 NLRB 363 (1974). 15 The general employment setting in this case is flavored with two distinct factors The first concerns bizarre circumstances of a large produc- tion facility beset with definite, if not sudden, default in managerial effectiveness . This comment relates to Kozak , whose functional personality was revealed sufficiently in characterizations of both Gruchacz and Tomp- kins to show that aberrant business behavior was manifested as of early July. Thus, Gruchacz found him "having a very difficult time ... both health- wise and mentally" for which "both Doug and I had been very stem in our request that he do take a vacation and that he stay away," while Tompkins more descriptively saw him "in a very precarious emotional condition" whose "charisma" among employees was counterbalanced by "alienat[ion I" fostered in key executive Livingston Kozak obviously projected an awkward presence which the management team sought to artfully mimmize in its 1677 which Respondents rely is the claim that Ma alarmed emotionally sensitive employees with an unfounded rumor of Kozak's fate. Implausibility permeates this contention as Kozak himself "went out there and talked [by the factory's sewing operation machinery ] to a few people," yet Sanders asserts he determined to recommend Ma's discharge without confrontation on the point and in claimed reliance on impaired language skills of unfamiliar (and now unidentifiable) employees. General Counsel has successful- ly established a prima facie case of discrimination through interrelated testimony, coupled with the entire record, permitting the inference which I draw to the effect that Ma was effectively discharged because of his known union activities. He was most prominently active, in fact, Tomp- kins (approver of Ma's termination) was generally aware of union activities at GCA and Handa Lai acquired specific knowledge (imputable generally to Respondents) on July 8, by seeing Ma handling cards contemporaneously known to her as the Union' s green (or greenish-bluish) signature cards.16 Respondents' propensity to act in this manner is established through their hostility to unionism, demon- strated by the plant closure 1 week later. Cf. JFB Manufac- turing, Inc., 208 NLRB 2 (1973). The timing of Ma's discharge, occurring after only 1 full working day from the peak of his inplant and community exposure as chief card solicitor, supports this conclusion. Overall it would offend informed inferential reasoning not to believe that Ma was eliminated in a deliberate attempt to abort the fast-spread- mg interest in unionization. By this conclusion, I consider the entire matter of change in bundling technique either contrived by Respondents' supervisory hierarchy in hurried anticipation of moving against Ma or mere coincidence as a matter arising within the management team's area of concern as to operational improvement. What remains is whether termination of GCA's opera- tions was in retaliation for employees rallying to the Union. This issue permits a purer form of interpretation from uncontested facts. There is utter failure of persuasion in Respondents' contention that a valid economic basis was the sole motivation for closure of GCA on July 17. The financial statements in evidence may be taken at face value. They reveal, most significantly,17 an aggregate net operat- ing loss over the October 1973-June period of $68,739. It is initial protocols with employees . Secondly, there is a thread of paternalism traceable to Tompkins in the conception , operation, and abrupt closing of GCA as a section shop. Here the theme is first suggested by the quality equipping and elaborate subsidizing of GCA, but is more nimbly seen in sophisticated phrasing that a "distinctive experiment" was consciously attempted as a "sort of model sewing shop in the social sense of the words " It behooves one to weigh the likely effect of these factors Proper application of employment expertise warrants belief that such overtone of idealism suggests the ease by which wrath could descend in response to perceived ingratitude Such a course of reasoning , if valid as I believe it to be, runs counter to accepting either Respondents ' explanation of why Ma was discharged or that continuing financial losses were the sole reason for shutting GCA when done. 16 This inferential finding of 8(a)(3) violation incorporates the subsidiary factor of employer knowledge by amalgamating the credible testimony of Ma that Handa Lai saw him handle a card of patently greenish cast with that of Lam Bick Chung and Wai Fong Wong Lam to the effect that at the end of the week Handa Lai openly referred to such an object as something supportive of the Union. See Mid-City Wholesale Meat Co, Inc, 202 NLRB 627 (1973) 17 Each month showing a 5-digit loss was affected by unusual cost items October 1973 showed an extraordinarily high payroll of $73,664, December (Continued) 1678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not enough to show the fact of such loss when compelling evidence persuades that but for the advent of large scale support for the Union among employees the business would not have closed when it did. As of early July, nothing was radically different from general affairs at GCA upon which Edward G. Willheim, Respondent's certified public ac- countant and business adviser, had repeatedly urged abandonment . The management team was freshly commis- sioned in optimism and miscellaneous indicators pointed to continuation.18 Tompkins' explanation of the decision to close is no more than faintly concealed resentment that the work force chose to stake after his personal appeal for solidarity. Any other conclusions would naively distort the true thrust of meaning as to Respondents' inability "to convince people to get behind the system" coupled with despairing references to "attitudes" and "polarized" em- ployees. On similar grounds the Board has rejected superfi- cial business justification where an enterprise suffered retaliatory closure because of union activities. Saginaw Aggregates, Inc., 191 NLRB 553 (1971); D.M. Rotary Press, Inc., 208 NLRB 366 (1974). It is further amply clear, as alleged, that Esprit and GCA constitute a single employer within the meaning of Board decisional law. A. M. Andrews Company of Oregon and A. M. Andrews of Illinois, Inc., 112 NLRB 626 (1955), enfd. 236 F.2d 44 (C.A. 9, 1956); Sakrete of Northern California, Inc., 140 NLRB 765 (1963Xsupplementing 137 NLRB 1220 (1962)), enfd. 332 F.2d 902 (C.A. 9, 1964); Altemose Construction Company and Energy Contracting Co., 210 NLRB 138 (1974). To the extent of Esprit's domestic production, GCA was intended to be, and in fact was, an entity wholly integrated within the business operation of mass producing women's apparel. The physical separation of the two facilities is immaterial as labor relations policy was solidly centralized in Esprit.19 General management affairs reflected Esprit's 90-percent ownership as Tomp- kins, chief authority within Esprit itself, monitored operat- ing matters (production awards, quality control, equipment needs) through Livingston and financial matters through Willheim. GCA was never free from the slightest or greatest effects of Tompkins' control and this case, largely con- cerned with the closing, is but a reflection of that sole managerial power. The single-employer finding also relates to my rejection of Respondents' defense based on Textile Workers Union of America v. Darlington Manufacturing Co. et al., 380 U.S. 263 (1965). The essential nature of Respondents' action was not a Darlington-type closing but instead discriminatory sub- contracting (or substitute contracting). As a garment manufacturer, Esprit had flexible discretion to enlarge or diminish the amount of work in progress at any sewing 1973 was affected (as was March) by substantial reduction (leading to increased cost of operations) of contract costs in progress during the period, while March itself was the month of expending $8,347 in business taxes. Working capital at March 31 was $12,376, a plus figure in this regard being traceable largely to stockholder (Espnt) loans totaling $43,302 during the fiscal year in progress Beyond the stark financial figures themselves, it is shown that substantial income tax advantage existed by the incorporation and operation of GCA along with "advantages" of business depreciation 18 Principal among these were Tompkins' own act of exhorting assembled employees on July 12, that sewing operator layoffs were executed with routine advice of work temporarily lacking and purchase of a new piece rate ticket machine signifying business as usual contractor with whom it dealt. Thus viewed, Esprit merely reallocated finishing services on cuts without change to this integral part of its overall garment production. This preemptive change was not a permanent closing and discontinuation of partial operations as contemplated by Darlington. See Walker Company, 183 NLRB 1322 (1970). In contrast to the prompt and formalistic dissolution in Darlington, no similar steps were taken here 20 and GCA remains a viable entity with associated financial statement current to June 30, 1975. For this reason (as well as intrinsically distinguishing facts) A. C. Rochat Company, 163 NLRB 421 (1967), and Motor Repair, Inc., 168 NLRB 1082 (1968), are inapplicable. Cf. George Lithograph Com- pany, 204 NLRB 431 (1973). CONCLUSIONS OF LAW 1. Respondents constitute a single employer within the meaning of Section 2(6) and (7) of the Act. 2. The Union, at all times since July 12, has represented a majority of employees in an appropriate unit consisting of all production and maintenance employees of GCA's San Francisco, California, facility, excluding office clerical employees, guards, and supervisors as defined in the Act. 3. Respondents, by interrogating employees concerning their activities on behalf of the Union, by threatening to discharge employees for engaging in activities in support of the Union, by threatening employees that their paychecks would be withheld unless they turned over to Respondents any authorization cards they had executed for the Union, by promising and then granting employees a pay raise to induce abandoning support of the Union, and by informing employees that GCA would close its plant unless they abandoned support of the Union, have engaged in unfair labor practices affecting commerce within the meaning of Sections 8(axl) and 2(6) and (7) of the Act. 4. Respondents, by discharging Frankie Ma on July 9 because he engaged in protected concerted activities on behalf of the Union and by terminating the operations of GCA on July 17 in retaliation for activities of its employees in support of the Union, have engaged in unfair labor practices affecting commerce within the meaning of Sec- tions 8(a)(3) and 2(6) and (7) of the Act. REMEDY I recommend that Respondents broadly cease and desist from their unfair labor practices, reinstate Frankie Ma with backpay as provided in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and post an appropriate notice.21 I 19 This factor is amply demonstrated by the role of Tompkins in addressing assembled GCA employees as he did on July 12, determining wage rate change , routinely tolerating interchange by custodial employees, summoning GCA employees to the office of Esprit at will, approving Ma's termination and installing the management team while Kozak, then holder of corporate office as president, was eased out of view. 20 California law requires stockholder action upon which a certificate of any voluntary winding up and dissolution shall be filed. West's Ann. Corp Code, pars . 4600,4603. 21 Because a substantial majority of employees affected by the remedy are only fluent in Chinese, the notice shall also be printed in that language See Monarch Tape Duplicating, A Division of Monarch Record Manufacturing GREAT CHINESE AMERICAN SEWING CO. further recommend that Respondents be required to resume operations of GCA22 and offer reinstatement with backpay, as provided in Woolworth and Isis, supra, to all persons employed in the described bargaining unit during the week ending July 12 (plus Elizabeth Tan) and to all persons otherwise determined by compliance proceedings to possess employment eligibility within such unit as of July 17.23 Finally, I recommend that Respondents' pervasive extensive violations be remedied by a bargaining order as the only effective means of counteracting conduct reaching this magnitude. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). The rationale here is based on employer conduct so flagrant as to undermine majority strength and impede the processes of a fair election. See American Map Company, Inc., 219 NLRB 1174 (1975). Respondents argue that Laura Modes, supra, should be applied in opposition to bargaining order entitlement. The key factor in Laura Modes, and subsequent related cases, is the notion that a labor organization totally rejects legitimate means of organizing and representing employees, employing instead maliciously violent conduct which would tend to intimidate any reasonably prudent employee and which casts doubt Corp., 205 NLRB 520 (1973); Czas Publishing Co., Inc., 205 NLRB 958 (1973). Effective dissemination of assurances to be contained in such notice warrants the further requirement that it be mailed to the last known address of each GCA employee 22 Respondents contend that obligatory reopening of GCA would be economically punitive This argument is readily rejected since Board remedies must be coextensive with the scope and nature of wrongdoing. To do otherwise here would be tantamount to placing a price on employee rights. The objective of requiring operational resumption is to restore status quo Respondents advance some showing of new market forces which, it is claimed , necessitate alleviating recognition. At this writing I have no basis to intimate that circumstances exist by which Respondents may fulfill this aspect of remedial relief other than with complete good-faith rejuvenation of GCA as a going business Cf. Townhouse T V & Appliances, 213 NLRB 716 (1974); N.C. Coastal Motor Lines, Inc, 219 NLRB 1009 (1975) 23 Backpay under the plant reopening aspect of my recommendations shall commence as of August 2, the date on which "80 or 90" employees of GCA were led to make application for work at Esprit. This conduct, aside from its tactical nuisance value, was a clear expression for purposes of determining scope of remedy for unfair labor practice strikers, that strike activity at the dormant GCA plant had ceased. From its inception, the strike 1679 on whether such labor organization is generally willing to assume and maintain representational obligations. Such is not remotely the case here. The Union acquired its majority during a swift campaign of customary solicitation directed to employees of the target employer. Prompt commence- ment of the strike was a strategy decision within the Union's discretion. It is not a condonation of sporadic physical violence and obstructive tactics to say that such unsatisfactory factory relief as Respondents seemingly might have received from allegations lodged under Section 8(b)(1)(A) of the Act, injunctive proceedings in court, or through civil and criminal precepts of law was the extent of their entitlement. While this decision states the facts of uncontradicted strike misconduct, it is misplaced reliance to claim that Laura Modes aids Respondents on this issue. Cf. C.A. Froedge Delivery and Trucking Service, Inc., 172 NLRB 46 (1968); World Carpets of New York, Inc., 188 NLRB 122 (1971); Ramona's Mexican Food Products, Inc., 203 NLRB 663 (1973); New Fairview Hall Convalescent Home, 206 NLRB 688 (1973), enfd. 520 F.2d 1316 (C.A. 2, 1975). [Recommended Order omitted from publication.] was in nature a protest of unfair labor practices , as sentiment to that effect coupled with causal connection has been shown. Cf Black Angus of Lauderhill, Inc., 213 NLRB 425 (1974). An earlier date argued for by General Counsel is not appropriate as discnnunatory plant closing, regardless of the depth to which that action violated Sec. 8(a)(3), did not disturb ordinary principles of when backpay entitlement arises following commencement of a strike . Here, as typically so, there must be shown termination of the strike and an unconditional offer to return to work. This is not established by self- serving reference in the Union's telegram of October 11 to the date July 19, but was prominently clear (Tompkins himself was involved in mechanics of handling the inordinately large group of persons appearing suddenly at Esprit's small reception area on August 2) from such mass action. It is unrealistic to expect proof that each individual who became a discnminatee by reason of the plant closing was present on this occasion, only that Respondents could not from and after that point reasonably believe that should they have chosen to reopen the GCA plant a complement of employees would not have been available for resumed operations. Compli- ance proceedings customarily preserve to Respondents the opportunity to establish in particular instances that specific persons declined the group action as sponsored by the Union or were otherwise unavailable for employment Copy with citationCopy as parenthetical citation