Holly Bra of California, Inc.

National Labor Relations Board - Board Decisions

May 26, 1967

164 N.L.R.B. 1112 (N.L.R.B. 1967)

1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Holly Bra of California , Inc., and Los Angeles
Dress and Sportswear Joint Board,
International Ladies' Garment Workers'
Union , AFL-CIO.
Holly Bra of California , Inc., and Los Angeles
Dress & Sportswear Joint Board, a
Subordinate Body of the International
Ladies' Garment Workers ' Union , AFL-CIO,
Petitioner . Cases 31-CA-373, 31-CA-442, and
31-RC-198.
May 26, 1967
DECISION AND ORDER AND DIRECTION OF
SECOND ELECTION
time as he deems that circumstances permit the free
choice of a bargaining representative.
[Text of Direction of Second Election' omitted
from publication.]
' An election eligibility bst , containing the names and
addresses of all the eligible voters, must be filed by the Employer
with the Regional Director for Region 31 within 7 days after the
date of issuance of the Notice of Second Election by the Regional
Director The Regional Director shall make the list available to all
parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary
circumstances Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper objections
are filed Excelsior Underwear Inc , 156 NLRB 1236
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On March 20, 1967, Trial Examiner Herman Marx
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. He further
found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint
and recommended dismissal as to them. Thereafter,
the Respondent filed exceptions to the Decision and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Holly Bra of California,
Inc., Los Angeles, California, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
IT IS FURTHER ORDERED that the election held on
March 31, 1966, among Respondent's employees be,
and it hereby is, set aside, and that Case 31-RC-198
is remanded to the Regional Director for Region 31
for the purpose of conducting a new election at such
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
HERMAN MARX , Trial Examiner : On March 31, 1966,
pursuant to "Stipulation for Certification upon Consent
Election" in Case 31-RC-198 between the Respondent,
Holly Bra of California , Inc. (herein the Company), and a
labor organization (herein the Union),' the National Labor
Relations Board (herein the Board) conducted an election
among employees of the Company in an appropriate
bargaining unit , with the result that 43 ballots were cast for
the Union , and 44 against it.2
Thereafter, on April 5, 1966, the Union filed 11
numbered "Objections" to alleged misconduct by the
Company affecting the election results. Objections 1, 4, 9,
and 11 were subsequently withdrawn by the Union. In the
remainder , it claims, in substance , that prior to the
election , the Company threatened employees with loss of
work or other reprisal if the Union won the election, or
because of their activities on its behalf (Objections 2.5.6,
and 7); interrogated them regarding membership of
employees in, and support of. the Union (Objection 3); told
employees that the Company knew the identity of
adherents of the Union. and warned them to vote against
the Union (Objection 8); and gave some employees wage
increases to induce them to vote against the Union
(Objection 10)
Based upon a charge filed by the Union on April 11.
1966. in Case 31-CA-373, and another filed by it on
July 11. 1966. in Case 31-CA-442, the Board's General
Counsel issued a complaint dated August 23. 1966.
alleging in substance that the Company had abridged
rights guaranteed employees by Section 7, of the National
Labor Relations Act, as amended (herein the Act).3 thus
' As used in this Decision the term "Union" refers to "Los
Angeles Dress And Sportswear Joint Board, International Ladies'
Garment Workers' Union. AFL-CIO," which is apparently the
same as an organization identified in the representation
proceeding as "Los Angeles Dress & Sportswear Joint Board, A
Subordinate Body Of The International Ladies Garment Workers
Union, AFL-CIO "
8 In addition , there were one void and four challenged ballots
The challenges are not within the issues here. two having been
sustained by the Regional Director of Region 31, and the other two
having been withdrawn at the hearing in this proceeding. For the
purpose of making findings pertaining to the history of the
representation proceeding. I have taken official notice of the
relevant documents in Case 31-RC-198
9 29 U S C. Sec 151. et seq
164 NLRB No. 151
HOLLY BRA OF CALIF. 1113
violating Section 8(a)(1) of the Act, and had violated
Section 8(a)(3) and (1) of the Act by harassing in her work,
and "constructively" discharging and refusing to
reinstate, an employee named Dulce Fumero because she
had engaged in union or other protected concerted
activities. The substance of Objections 2, 3, 5, 6, 7, 8, and
10, described above, is included in the allegations of unfair
labor practices contained in the complaint.
Following an investigation of the Objections, the
Regional Director of Region 31, in his "Report on
Objections," dated August 12, 1966, directed that a
hearing be held upon the Objections enumerated above,
and thereafter, by order dated September 14, 1966,
consolidated Cases 31-CA-373, 31-CA-442, and
31-RC-198 for hearing the matters raised by the
objections in question and the allegations of the complaint.
The Respondent has filed an answer denying the
commission of the unfair labor practices imputed to it in
the complaint.-'
Pursuant to notice duly served by the General Counsel
upon all other parties, a hearing was held before me as
duly designated Trial Examiner, at Los Angeles, California,
on November 15 and 16, 1966, upon the issues raised by
the complaint and answer and Objections 2, 3, 5, 6, 7, 8,
and 10. All parties appeared through counsel and were
afforded a full opportunity to adduce evidence, examine
and cross-examine witnesses , and submit oral argument
and briefs. I have read and considered the respective
briefs of the General Counsel and the Respondent filed
with me since the close of the hearing. The Union has not
filed a brief.'
Upon the entire record, and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. NATURE OF THE RESPONDENT'S BUSINESS;
JURISDICTION OF THE BOARD
The Company is a California corporation; maintains its
principal place of business in Los Angeles, California,
where it is engaged in the business of manufacturing and
selling women's undergarments and swimwear, and is, and
has been at all material times, an employer within the
meaning of Section 2(2) of the Act.
During the year preceding the issuance of the
complaint, the Company, in the course and conduct of its
business operations in California purchased and received
goods valued in excess of $50,000 directly from suppliers
located outside that State, and sold and shipped products
valued in excess of that sum directly to purchasers located
outside California. By reason of its said interstate
transactions , the Company is now, and has been at all
material times , engaged in commerce , and in operations
affecting such commerce, within the meaning of Section
2(6) and (7) of the Act. Accordingly, the Board has
jurisdiction over the subject matter of this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
As the record establishes, without dispute, the Union is,
and has been at all times material here, a labor
organization within the purview of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory Statement
The Company manufactures products both for direct
sale by it to retail outlets, and as a contractor for other
manufacturers. In its contracting capacity, it produces
swimsuits and beach robes for a manufacturer identified
in the record as Cole; and during the period material here,
it made brassieres and girdles, under contract, for a
manufacturing enterprise known as Olga.
Production operations are subject to , seasonal
fluctuation, the number of employees varying with the
season. In the early part of 1966, the number exceeded 90
at the height of seasonal operations. A substantial number
of the employees are women of Latin American origin,
speaking Spanish as a primary language, some possessing
little or no capacity to understand and speak English.
Machine operators engaged in swimwear production
work are under the immediate supervision of one Hazel
Smith who is of Latin American origin and speaks
Spanish. Another Spanish-speaking supervisor, Genovena
Sanchez, exercised immediate supervision over machine
operators engaged in contract production for Olga. Both
Smith and Sanchez are supervised by the plant manager,
Mitsuo Yoshida, who has overall responsibility for the
plant's production operations, and is subject, in turn, to
supervision by the Company's secretary-treasurer, David
Young, whose responsibilities include direction of the
plant 's contract operations. Yoshida, as he testified,
understands and speaks Spanish "fairly well." Young's
knowledg' of that language is negligible. Yoshida, Young,
Sanchez, and Smith are, and have been at all times
material here, supervisors within the meaning of Section
2(11) of the Act.
The Union began efforts to organize employees at the
Company's plant in or about the latter part of January
1966, holding a meeting of employees on February 10,
1966, in connection with its organizational campaign, at
the home of Dulce Fumero, employed by the Company as a
machine operator. Young and Yoshida were aware in
February 1966 that Fumero favored the Union, both
testifying, in fact, that prior to the day of the election,
Fumero was the only employee they had "reason to
believe" favored the labor organization. Fumero, it may be
noted, is Spanish-speaking, and testified in that language,
4 Copies of the charges , the Regional Director 's "Report on
Objections ," the complaint , and order of consolidation have been
duly served upon all parties entitled thereto.
5 The General Counsel has filed a motion dated December 20,
1966, seeking correction of the transcript of testimony in 15
specified particulars . The Union has submitted no position on the
motion . The Respondent opposes it only as to Items 3,4,6, 7, and
8 set forth therein . In the absence of opposition , the motion is
granted as to the undisputed items, and the transcript is corrected
in those particulars as requested . As to Items 3, 4, 6, 7, and 8, the
General Counsel, in a letter dated January 3, 1967, addressed to
me (and hereby made part of the record), concedes that the
transcript accurately transcribes the reporter 's shorthand notes,
but he argues that the respective contexts in which the relevant
words appear demonstrate that the notes are in error . This is a
non sequitur , since witnesses on occasion misspeak themsleves,
and in such instances , words they use may run counter to their
context . Thus, the motion as to Items 3, 4, 6 , 7, and 8 must be, and
is, denied . This, I note, does no more than hold that the absence of
a showing of inaccuracy of the reporter's notes requires a denial
of the motion as to the disputed items; it does not preclude any
party or the factfinder from departing from the literal meaning of
the words in question and reading , and giving effect to, them in
the light of their respective contexts, as may be appropriate.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through an interpreter, because, as I conclude from
observation and her answers to test questions put to her,
she is unable to speak English adequately
The Union filed its petition (in Case 31-RC-198) seeking
certification of the unit employees on February 21, 1966,
and the upshot was the consent election on March 31,
1966, with the results previously described.
During the month of March preceding the election,
Young convened several meetings of employees at the
plant, attended by substantially all of them, and by
supervisory personnel, including Yoshida. At three such
meetings, the last held on the day before the election, the
management read and distributed to the employees copies
of a circular (or "letter") addressed to "Everybody at Holly
Bra," varying in content from one meeting to another, but
each, in substance, expressing views and arguments
against union representation, and, by implication, at least,
in the first of the circulars, and expressly in the second
and third, requesting the employees to reject the Union in
the election. The last of the circulars also included an
assurance that the election would be by secret ballot A
Spanish translation of each circular was also read and
distributed at the relevant meeting. On the day before the
election, in addition, Young and Yoshida went through the
plant telling the employees in groups (using a Spanish
translation where deemed necessary) that there was no
truth to a "rumor" that those who voted for the Union
would be discharged, that they could vote as they pleased,
and that the management had no way of knowing how they
voted. According to Young, this was done because he had
been informed by Yoshida that such a "rumor [was]
rampant in the shop."
There is no claim in this proceeding that the Company
overstepped the bounds of permissible comment in the
views and arguments against union representation
expressed by it in the circulars . What is in issue is the
legality of preelection wage increases ; whether in the
period preceding the election the management , principally
through Yoshida and Young , unlawfully interrogated, and
made coercive statements and promises of benefit to,
individual employees ; and whether the Company
unlawfully forced Fumero to give up her employment,
through harrassing tactics, because she was an active
adherent of the Union. Findings and conclusions on these
issues follow.
B. The Alleged Preelection Misconduct
The allegations of preelection improprieties, apart from
the wage increases, center, in the main, on conduct
imputed by various employees to Yoshida and Young.
According to Fumero, within a week after the meeting at
her home, Yoshida raised the subject of unionization with
her at the plant, asking her what she knew about the Union
and how it was going, and, in substance, in the course of
the ensuing discussion, she told him that she would not
deny her union affiliation, and that she favored
unionization because it would bring her more benefits, and
he said that the Union would not keep promises it made,
and that if she desired such benefits, she should seek
employment where they were available.
Fumero testified that at a later point in February, Young
came to her machine and (speaking in English, as is
evident from Fumero's testimony, if credited, that only she
and Young were present) asked Fumero if she remembered
what a unionization attempt had done to another
establishment (called Rose Marie Reed, where she had
once worked), and said that she would be laid off when
work became slack.
A few days later, according to Fumero, Young, while at
the former's machine with Smith and Sanchez, told Smith
(in English, as I infer) that Fumero should personally bring
her "tickets" (specifying piece rates for her work) to his
office for a week, so that he could check her earnings to
enable him to determine why she was not producing more;
and that Fumero was going to be paid a minimum daily
rate of $14 instead of her then current rate of $12.
On an occasion preceding the election, Fumero
testified, Yoshida summoned her and, speaking through
Sanchez as interpreter this time, told Fumero that she was
"the initiator of the [union] problem at the plant," and
that he "wanted [her] not to be seeking out anyone or
winning anyone with these problems"; and said that the
Company would have preferred to give the employees a
$60 fee it "was going to pay an attorney," whom it
intended to retain, and that "after everything would be
over" the management "would try to better ... wages,"
but did not "want that kind of a problem" at the plant.
According to Fumero, too, on the morning of the
election, Yoshida summoned her to his office, and, again
using Sanchez as an interpreter, told Fumero that "at that
hour" he was precluded from talking "to anybody about
the union," and "wished" that she did not do so.
Fumero testified, too, that between the meeting at her
home and the election, Yoshida talked to her in his office,
"every week" about the Cole and Olga contracts, telling
her, among other things, that in the event of unionization
of the factory, Cole and Olga would discontinue their
contracts since "they were not willing to do business with
the union "; and that if the Union won the election, that did
not mean that the Company was "going to do business"
with it.
Fumero also quotes Young in much the same vein as she
does Yoshida on the subject of discontinuance of the Cole
and Olga contracts and doing business with the Union,
stating that Young made such remarks to her on three or
four occasions between the date of the union meeting at
her home and the election. In addition, according to
Fumero, Young told the employees assembled at the
meetings he convened that the Company "might" lose the
contracts "because Olga and Cole were not willing to
negotiate with the union."
Another employee, Geraldine Wilson, who is of the
Negro race, testified that on the morning after a union
meeting she attended about 2 or 3 weeks before the
election, Yoshida called her to his office, stated that there
was a "rumor going through the shop" that there had been
"a meeting among the colored girls," and asked her if she
knew anything about it; and that she replied that she had
no knowledge of such a meeting.
Wilson also stated that on the day before the election, on
the occasion when Yoshida and Young went among them
in small groups, Yoshida, speaking to three employees,
including herself and a Spanish-speaking employee named
Juana Yanez, told them that the management was "aware
of those who had signed cards and sent them into the
union ," and had "ways of finding out things just like the
union has "; and expressed the hope that they would make
"the right decision" in the election.6 Under cross-
6 At one point , Wilson imputed this statement to Young , but satisfied the relevant reference to Young was an inadvertence
she attributed it to Yoshida at a number of places, and I am
HOLLY BRA OF CALIF.
examination by the Respondent, Wilson conceded that on
the occasion in question, Yoshida told the group that the
ballot was secret, and that there would be no reprisals
against employees "regardless of how they felt about the
union "7
According to Wilson, Young, also, spoke to her about
unionization in the period of union activity preceding the
election. In that regard, she testified that on one occasion,
Young asked her how "the girls" felt about the Union; told
her on another that if the Union won the election, the
Company "would just as soon close down the shop and
forget it, because they couldn't meet union demands"; and
said on one or more occasions that Cole and Olga had no
knowledge of the union organizational attempt, that he
"didn't know what their reaction would be" if they knew,
and that there was a possibility that "they would withdraw
their contract, because they were not union shop
themselves."
Yanez testified in Spanish, through an interpreter, that
during the Union' s organizational campaign, Yoshida
summoned her to his office and told her that he wished to
make sure that the employees understood what they were
doing regarding unionization , and that if the plant were
unionized, Cole and Olga would terminate their contracts,
in which event "many people," including two cousins of
Yanez, would lose their employment.
One of the cousins, Carmen Sepulveda, also testifying
through the interpreter, stated that while she was at work
about 2 or 3 weeks before the election she overheard Hazel
Smith, in Spanish, telling individual employees
(unidentified, except an employee named Elaina Miteff)
that in the event of unionization of the plant, Cole and Olga
would cancel their contracts.
Another employee, Etta Barnes, testified that on one
occasion several days before the election, in the course of
a conversation with Young about her work, she raised the
subject of the Cole and Olga work, asking Young what
would happen to the contracts in the event of unionization'
of the plant; and he replied that in that case, the Company
would probably lose the contracts.
According to an employee named Beulah Hayes, the day
before the election, on the occasion when management
personnel spoke to small groups of employees, Yoshida,
speaking to her group, consisting of two unidentified
employees and herself, told them that he was "disturbed
by certain rumors" (of reprisals against employees who
voted for the Union, according to the sense of the
testimony), that they should not worry about the matter
since the ballot would be secret, and that he knew that
Fumero and another employee named Anna were the
union "ringleaders."
According to the testimony of Ahyda Medina, an
employee of the Company, on an occasion in or about the
early part of March 1966, while she was at work, Young
asked her if an employee named Cecilia Valencia favored
the Union, and Medina replied, in substance, that neither
she nor Valencia knew anything about the Union.8 Medina
I Yanez, who testified in Spanish through an interpreter, was
neither asked, nor gave any testimony, about the remarks Wilson
ascribes to Yoshida in Young's presence I am unable to infer
from the omission that Wilson's relevant testimony is not
credible, since it may be that Yoshida made the remarks in
question and Yanez did not understand them because of her
English - speech limitations.
8 According to the transcript at one point, Medina quotes
Young as asking whether Valencia "was there through the
1115
also testified that shortly after a preelection meeting of
employees in March, at which the management read one of
the circulars previously mentioned, Yoshida spoke to her
at her work station and asked her if the employees with
whom she had been standing in a group at this meeting
"were convincing" her; and that she replied in the
negative, stating, also, that she had her own ideas about
the Union.
The Respondent presented testimony from the
supervisory personnel involved, specifically denying the
commission of the alleged improprieties described above.
Also, according to both Young and Yoshida, the only time
they discussed the continuance of the Cole and Olga
contract work with employees in the event of unionization
was when the latter inquired about the matter, and that the
response was always that the management had no idea
what effect unionization would have upon the work.
In evaluating the many credibility issues presented, I
am unable, in the perspective of the whole record, to
accord significant weight to Young's claim that when the
Union's organizing campaign first came to his attention in
January 1966, he told the supervisory staff to refrain from
comment on union matters . This testimony is self- serving
and not susceptible to verification by objective evidence,
and, in any case, the admonition, if given, would not
foreclose the possibility that it was not heeded, in some
instances at least, particularly in a setting of close daily
contact between supervisors and employees, in which the
former could conceivably find it difficult to remain always
on guard against ill-advised statements. Significantly, the
testimony of Yoshida himself raises a large question
whether he heeded Young's alleged admonition, for in
giving his version of the conversation with Yanez, Yoshida
does not say what prompted him to tell her to "think it over
very carefully before you vote," and, indeed, he professes
an inability to recall how the subject of "the union"
entered the discussion. Plainly, too, the fact that circulars
read at the meetings contained permissible expressions of
opinion and argument does not preclude the possibility
that management personnel made improper statements in
the far less formalized context of conversations with
individual employees; nor does the fact that on the day
before the election, Yoshida and Young assured the
employees in groups that the ballot would be secret and
would not result in reprisals inevitably lead one to the
conclusion that in the preceding 2 months, management
personnel were always equally solicitous of the employees'
right of self-organization.
On the contrary, a number of considerations lead me to
conclude that Yoshida and Young were not as reticent in
raising and discussing union matters with individual
employees as they would have one believe. To begin with,
Yoshida's professed inability to remember whether it was
Yanez or he who injected "the union" into their
conversation does not ring true. As he tells it , she had
asked him a question about her work at her machine, and
he did not want to talk to her about it there, but he offers
union " The General Counsel's motion to amend the transcript,
previously mentioned (fn 5), sought to substitute the word "for"
for the words "there through " That portion of the motion was
denied for the reasons given, but that, as previously stated, does
not preclude a construction of Medina's meaning, and on that
score, I have no doubt, from the context, and other portions of her
testimony, including her cross-examination , that the thrust of her
relevant claim in that Young asked her if Valencia favored the
Union
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no explanation for this reluctance, nor for his admonition
to her to consider her vote "very carefully," except that
somehow "the union came into the conversation." The
fact that he admittedly was unwilling to talk to Yanez at
her machine gives some support, albeit vague, to her claim
that they talked in his office, and, in contrast to Yoshida's
failure to explain his unwillingness to discuss "her work"
at her work station, or how "the union" turned up in the
discussion, Yanez' version clearly portrays Yoshida as
initiating the discussion about "the union," and it is quite
understandable from her testimony why he would prefer
the privacy of his office for such a talk. It appears to me
that Yoshida's claim that he cannot remember how "the
union" entered the conversation is an evasion, and, in
short, I am persuaded that he put the subject there
substantially as Yanez describes it in her testimony.
I find persuasion, too, in the testimony of Wilson,
Barnes, and Medina. Wilson has been in the Company's
employ for 12 years, and was still employed by it at the
time she testified. There is no indication she has any
prounion sympathies or any interest in the outcome of this
proceeding, and, indeed, I formed the impression that she
was reluctant to testify. It is noteworthy, too, that Young
appears to esteem her judgment, for he solicited her
opinion of the first of the circulars distributed by the
management at the employees' meetings it convened.9
Barnes and Medina were also in the Company's employ at
the time they testified, having been so employed for
several years, and, as in Wilson's case, I find no reason to
regard them as biased or interested witnesses.10
The interest of Young and Yoshida, in contrast, is
obvious, and, more to the point, they evidenced a
disposition to shape their testimony to what they conceive
to be their necessities. This characteristic appeared quite
plainly to me in Yoshida's evasiveness in recounting the
Yanez episode, and in a claim by Young that Fumero
"speaks English very well," which he added gratuitously
to testimony that Sanchez was present on one occasion to
interpret a conversation between Young and Fumero.
Young similarly embellished testimony he gave at one
point that Fumero spoke to him in English with an addition
that she spoke "very well in English." These claims are in
marked contrast to the failure of the Respondent to offer
any objection to the use of an interpreter for Fumero at the
hearing, expressing the view at one point, in taking the
wholly different course of objecting to the use of an
interpreter for Yanez, that one should be used "only if one
is needed." I do not believe the claim that Fumero speaks
English "very well," and am convinced that Young knows
that she does not do so; and it appears to me that he
gratuitously injected the claim into his testimony, and
repeated it, in the hope or expectation of casting discredit
upon Fumero.
Moreover, exaggeration and self-contradiction appear in
testimony by Young bearing on an issue (to be resolved at
' According to Young, he sought Wilson's opinion "because she
had asked me a lot of questions," but he does not specify the
"questions ," and there is no indication that he sought the
approval of any other employees who he claims asked him
"questions "
10 I am satisfied that Medina has sufficient capacity in English
to understand statements such as those she imputes to Yoshida
and Young, albeit she evidenced some difficulty in expressing
herself in English , and testified in Spanish through an intei preter
Whatever her limitation in speaking English, she appeared to me
a later point) whether Fumero was harassed by the
Respondent into leaving her employment or left it of her
own volition to draw unemployment compensation. In
Young's direct examination , he described two occasions
when she allegedly requested a layoff status, once about a
month before the election, and the other about a month
later. Under cross-examination, Young approximated the
number of such requests as "at least a half a dozen times,
if not more," at "least three" of them before the election;
and he then testified to two such requests after the
election. This does not jibe with a sworn statement Young
gave the General Counsel on April 19, 1966, some 3 weeks
after the election, that Fumero "asked me twice about
being laid off."
In short, for the reasons stated, I credit the testimony of
Yanez, Medina, Wilson, and Barnes, outlined above.
However, I am far from concluding that total reliability
rests on the General Counsel's side of the evidence, and
there is much that is deficient in the testimony of some of
his witnesses. Sepulveda is one such. On direct
examination, she quotes Hazel Smith as saying that "if the
union would come in there Olga and Cole would cancel the
contract"; but under cross-examination, she testified that
what Smith said was that "Olga and Cole would close if
the union came in." The two statements are sufficiently
different to raise a question about the reliability of
Sepulveda's recollection, particularly as there was
undoubtedly much varying talk about the plant concerning
the contracts, including, as previously noted, some
allusion to the contract work in a circular read at one of the
plant meetings. Moreover, claims by Sepulveda that she
heard Smith make the cancellation statement "many"
times, and that it was made by Smith to "all" of the
employees, "one by one," sound a speculative and inflated
note. One may doubt, to say the least, that she heard the
remark in question made to each, and, indeed, it was
admittedly not made to her. It is noteworthy too, that she
identified only one employee (who was not called as a
witness, by the way) to whom the statement was allegedly
made; and that there is a variance of some substance
between testimony she gave that Yoshida talked to her
about unionization some days before the election and a
sworn pretrial statement she gave to the General Counsel,
in which she says that Yoshida (and Young) "said nothing
as I heard about the union , only Hazel."
In the light of the credible evidence, previously
described, that Smith's supervisors, Yoshida and Young,
did make predictions that unionization would or could lead
to loss of the contract work, and of employment, one may
well suspect that Smith did much more than merely tell
employees, in reply to their questions, as she claims, that
she did not know what effect unionization would have
upon the contracts; but suspicion is not enough, and
Sepulveda's testimony is, in my view, an insufficient basis
for anything more. I base no findings on it.
to have a fair ability to understand it, manifesting some capacity
to read it , while under cross-examination, and giving me the
impression that she was following statements in English , such as
questions by counsel, translation of her testimony , and colloquies
with or between counsel, with good comprehension , going so far,
in that regard, as to interrupt one such colloquy between myself
and counsel , to make a relevant clarifying comment , through the
interpreter , on the subject under discussion (the number of
pretrial statements she had given the General Counsel)
HOLLY BRA OF CALIF. 1117
Nor do I find dependable Beulah Hayes' claim that on
the occasion, the day before the election, when Yoshida
and Young circulated among groups of employees with
assurances that the ballot would be secret, and that there
would be no reprisals, Yoshida told the group of which
Hayes was a member that he knew that Fumero and
another employee named Anna were the union
"ringleaders." This claim does not jibe with a pretrial
affidavit Hayes gave the General Counsel, for there she
says that what Yoshida said on the occasion in question
was that he knew that Fumero and an employee named
Ann Dalli were responsible for (backing) the "rumor" that
layoffs would result if the Union lost the election. The
variance between this and the testimony that Yoshida said
that he knew that Fumero was a union "ringleader" is
sufficient to lead me to deny credence to the latter claim. 11
The credibility issues raised by Fumero's testimony and
the management's related denials are not easy to resolve.
On the one hand, much of the conduct she imputes to
Yoshida and Young resembles that which other employees
credibly attribute to them, and her testimony thus has
some corresponding corroborative support. Moreover, as
previously noted, both Yoshida and Young gave self-
exonerating testimony that I am unable to credit. On the
other hand, Fumero's interest ( as an alleged discriminatee)
is obvious, like that of Yoshida and Young, and, in
addition, she appeared to me, even through the barrier of
language, to be given to emotional attitudes somewhat
more readily than the average person , leaving me with the
impression at times that her feelings color her conceptions
of what had been said or done. Moreover, I have at least
some doubt that her grasp of English was always sufficient
to absorb and repeat accurately what she claims to have
heard. Some portions of her testimony are not, in my view,
for reasons that will appear, a safe predicate for findings,
but the maxim falsus in uno,falsus in omnibus is obviously
not a compelling guide to credibility, 12 and I am led to
conclude that some aspects of her testimony described
above are credible.
These are her versions of three of the conversations, the
first, a few days after the union meeting at her home, in
which, according to her account, Yoshida asked her about
the progress of the Union and why she favored it; the
second, closer to the election, in which, she testified he
charged her with being the initiator of the [union]
problem at the plant" and admonished her to seek support
for unionization; 13 and the third, on the morning of the
election, in which she claims he told her that "at that
hour," he was precluded from talking "with anyone about
union problems," and that she "shouldn't talk with anyone
anymore about that" (in other words, admonishing her not
to seek support from employees for the Union). It does not
appear from Fumero's testimony whether the first of these
conversations was in Spanish, but, according to her, she
was summoned to Yoshida's office for the two later
conversations, which were in Spanish, Sanchez serving as
interpreter. (Although Yoshida speaks Spanish "fairly
well," as he testified, on occasion, according to him, in
order to avoid any misunderstanding of his "Castilhan"
speech, he uses an interpreter in talking to Spanish-
speaking employees such as Fumero.)
Wilson's account of an interrogative approach to her by
Yoshida on the day after she attended a union meeting
contributes plausibility to Fumero's description of a
somewhat comparable episode a few days after the
meeting at her home. Similar corroborative support is
given Fumero's testimony regarding the two office
conversations by the fact that Yoshida also summoned
Yanez and Wilson to his office for private talks regarding
unionization . Moreover, it is plainly inferable from
Yoshida's own testimony that Fumero stood out in his
mind as a union adherent, for he testified that before the
election, she was the only employee he had "reason to
believe" favored the Union, and this, particularly against
the background of the private office interviews he had with
Yanez and Wilson, contributes plausibility to Fumero's
claim that Yoshida twice summoned her for office
conversations regarding union matters.
Her description of the office discussion on the morning
of the election strikes a particularly plausible note because
she pictures him, in substance, as referring to a restraint
upon him from discussing "union problems" with
employees "at that hour" as the basis for his admonition
that she also refrain from doing so. The Company had
admittedly been advised of the Board's Peerless Plywood
rule (107 NLRB 427, 429), prohibiting employers and
unions from making election speeches on company time to
massed assemblies of employees within 24 hours
preceding an election , and one may reasonably believe
that Yoshida's reference to his preclusion "at that hour"
was a layman's inaccurate reference to the Peerless
Plywood prohibition. I do not believe it likely that a sewing
machine operator such as Fumero, especially with her
language handicap, would know of any limitation on
electoral campaigning "at that hour," and the fact that
Fumero quotes the plant manager in the vein of a
limitation, albeit imprecisely stated, enhances the
credibility of her account. In short, I credit Fumero
regarding the three conversations in question.
However, I have less confidence in other portions of
Fumero's testimony. It is not that I have greater faith in
the credibility of Yoshida and Young as witnesses, but,
rather, that the burden of proof is upon the General
Counsel, and that the Respondent is entitled to the benefit
of whatever factors qualitatively weaken Fumero's
testimony.
One such is her claim that Young said at the plant
meetings that unionization might lead to the loss of the
11 Hayes claims, and Smith denies, that prior to the election the
latter made a remark that she had been accused "of being mean,"
but that "after the election was over," she would "really show
. how mean [she] could be " In her pretrial affidavit, Hayes
quotes Smith as saying one day "that she was going to be mean
from then on, since she had been considered mean" (Emphasis
supplied) Unlike Hayes' testimony, there is nothing in the
affidavit to indicate that Smith's remark was linked to the
election The variances between the affidavit and Hayes'
evidence raise too much possibility of embellishment in her
testimony to permit its use as a basis for findings
12 This case, like so many others that have ansen under the Act
before it, leads one to appreciate Professor Wigmore's view that
the maxim is "absolutely false as a maxim of life " 3 Wigmore,
Evidence § 1008 (3d ed. 1940).
i' The credibility of Fumero's account of the office
conversation in which she says she was charged with being "the
initiator of the problem at the plant " is not impaired , in my view,
by the fact that she quotes Yoshida as mentioning the relatively
small sum of $60 as the amount he would pay an attorney
Conceivably , the sum mentioned was for a limited service such as
a consultation, and, in any case , there is no evidence that the
Respondent did not have such a fee arrangement for one legal
service or another
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cole and Olga contracts.The meetings were attended by
substantially all the employees, yet she is the only one who
quotes Young as making such a statement at these
sessions, doing so in some detail to the effect that the
contracts were good, that the Company had obtained them
at a "sacrifice," and that their loss would result in layoffs.
Young spoke at the meetings in English, a language in
which Fumero is far from proficient, and, particularly
taking into account the absence of any testimony by any
other employee that Young made such remarks at any
meeting, I am unable to overlook the possibility that the
statements she imputes to him at such assemblages are
the product of assumption rather than the fact. It may well
be that she is reading her version of what Young said into a
circular, which was read at one of the meetings, containing
a statement that the contract work (other work) secured
without assistance from the Union was the means by
which the Company had avoided layoffs and provided
steady work. In any case, upon my observation of Young,
who has had prior experience with union efforts to
organize the plant, I find it difficult to believe that he
would be so incautious as to make so compromising a
remark as the one in question before so large an audience.
Nor am I persuaded of the reliability of Fumero's claims
that Young and Yoshida each made repeated statements
to her privately on the subject of the contract work, even
though I am convinced that management personnel, as
described by Yanez, Barnes, and Wilson, made
statements to them, in substance, that unionization of the
plant would or could result in loss of that work.
On her direct examination, as Fumero pictures the
alleged private remarks, over a period of almost 2 months
preceding the election, Yoshida "every week," and Young
-three or four times, expressing themselves in much the
same vein, even using some identical words, gave her
separate talks in which each referred to the quality of the
Cole and Olga contracts, and the effort involved in
securing the work; alluded to the union "problem";
predicted that both manufacturers would "remove" the
contracts in the event of a union election victory; and said
that such a result "did not mean" that the Company was
"going to do business ... with the union." This image of
highly repetitious argument addressed to a single person
by Yoshida and Young has an implausible cast, leaving
with me a substantial question whether some or all of her
portrayal reflects assumptions she makes as to arguments
the Company would advance in a debate over unionization.
That view of the matter is reinforced by her testimony,
under cross-examination, that she does not "remember ...
what exactly was said in each conversation [with Young]
about Olga and Cole," but that she "know[s] that each
time it was mentioned, everything was related with the
same thing." It is beside the point to say that it is too much
to expect her to remember "exactly," for that does not
alter the fact that on her direct examination she does
impute the remarks to Young on three or four occasions,
casting them in much the same mold as the statements she
attributes to Yoshida "every week"; nor, in view of
Fumero's deficient English, and her testimony that Young,
who speaks no Spanish, spoke to her "directly" on the
private occasions in question, should one overlook the
possibility that her claim that "everything was related with
the same thing" is the product of assumption rather than
an expression of fact. I hold, in other words, that Fumero's
testimony regarding remarks by Young at plant meetings
on the subject of the Cole and Olga work, and describing
alleged conversations with Young and Yoshida on the
subject, is not of sufficient qualitative weight to support
findings based thereon.
I reach the same result with respect to Fumero's claim
that on one occasion, Young asked her if she recalled what
a union organizing effort had done to a firm named Rose
Marie Reid, and told her that she would be laid off when
work became slack; and that on another occasion, he told
Smith to have Fumero bring her "tickets" to his office for
a week so that her production could be checked, and that
Fumero's daily minimum rate would be increased from $12
to $14. It is at least questionable that the alleged remarks
to Smith, if made, were related to Fumero's union activity
or interest; the implied criticism of Fumero's production
does not quite hang together with the promised increase;
and it does not appear that the alleged instruction was
complied with for the week in question; but apart from
these matters, it is fairly inferable that if Young did speak
on both occasions, she did so in English, and such an
inference, harnessed to my appraisal that Fumero's grasp
of English is substandard, precludes findings based on her
relevant testimony.
Summarizing the results of the evidence credited above,
I find that the Company interfered with, restrained, and
coerced employees in the exercise of rights guaranteed
them by Section 7 of the Act, thereby violating Section
8(a)(1) of the Act, by each of the following: (1) Young's,
statement to Wilson that if the Union won the election, the
Company "would just as soon close down the shop and
forget it," and his remarks to Wilson that union activities
would possibly lead to the withdrawal of contract work by
Cole and Olga; (2) Yoshida's statement to Yanez that if the
plant were unionized, Cole and Olga would terminate their
contracts, and that in that event many employees,
including Yanez' cousins, would lose their employment;14
(3) Yoshida's remarks to Wilson and two other employees
the day before the election that the management was
aware of those who had "signed cards and sent them into
the union," and "had ways of finding out things lust like
the union has" (thus implying that the Company had
employees' union activities under surveillance);
(4) Yoshida's interrogation of Fumero some days after the
meeting at her home as to what she knew about the Union
and how it was going; (5) Young's inquiry of Medina
whether an employee named Cecilia Valencia favored the
Union; (6) Yoshida's query of Medina whether various
employees with whom she was standing at one of the
meetings convened by the management "were
convincing" her (about the Union, as I infer); (7) Yoshida's
query of Wilson whether she knew anything about "a
meeting among the colored girls" (an inquiry, I find in the
context of circumstances, that sought information about a
meeting pertaining to unionization); (8) Young's
interrogation of Wilson as to how the employees felt about
the Union; (9) Yoshida's admonition to Fumero, on the
occasion when he charged her with being "the initiator" of
unionization efforts at the plant, that she was not to seek
support for the Union ("seeking out anyone or winning
" It would neither add to, nor detract from, the remedy here to unionization upon the contracts, violated the Act Thus, I do not
decide whether Young's statement to Barnes regarding the Cole pass upon the matter
and Olga work, made in reply to her inquiry as to the impact of
HOLLY BRA OF CALIF. 1119
anyone with these problems"); (10) Yoshida's statement
on the same occasion that "after everything would be
over," the Company "would try to better ... wages" (a
remark I construe, in the context of circumstances, as an
intimated promise of benefit if the employees rejected the
Union in the election); and (11) Yoshida's statement to
Fumero on the morning of the election that he "wished
that [she] did not talk to anyone about the union" (a
statement she would reasonably be warranted, in the
circumstances, in construing as a direction to abstain from
seeking support from employees for the Union in the time
remaining before the election, whether or not she did so on
her own time).15
From the findings made above, I am led to conclude that
the relevant portions of Objections 2, 3, 5, 6, 7, and 8
should be sustained, and that the Company's misconduct
was of sufficient substance to prevent a fair election; and,
accordingly, I shall recommend that the election be set
aside.
Turning to the allegations of unlawful wage increases, as
the evidence establishes, without dispute, in February and
March 1966, a 2-month period preceding the election
substantially coincident with the union organizing
campaign, the Company increased the wage rates of 30
employees. Those affected were actually employed on a
piece-rate basis, with guaranteed minimum rates varying
from one employee to another, and the changes upon
which the allegations are bottomed are not revisions in the
piece rates, but increases in the guaranteed minima.
The General Counsel asserts that the underlying
purpose of the rate revisions was to influence the
employees to vote against the Union in the election. As
support for this thesis, he stresses the timing of the rate
increases, and the fact that in the comparable 2-month
period in 1965, the minimum rates of only 11 employees
were increased. The Respondent disclaims any electoral
purpose in the rate revisions, asserting, in substance, that
they were put into effect in the normal course of business.
The record does not support the General Counsel's
position. The disproportion between the comparable
periods in 1965 and 1966 is substantially less than the
General Counsel's position would imply, for there were 70
employees on the production staff in the 1965 period,
contrasted with about 98, the highest number in the later
period.
More to the point, the Respondent gives a credible
explanation of the 1966 rate revisions. Yoshida testified,
without dispute, that changes in styles entail changes in
operations and affect output; that while "relatively new"
at a changed operation, an operator's earnings may drop
unless her guaranteed minimum is increased; and that
upward adjustments of guaranteed minima occurred not
only in the 2-month period in question but in practically
every month in 1966, as in the previous year. Yoshida
identified 12 employees whose rates were revised upward
in the relevant period because of style and related
operational changes, and he gave testimony to the effect
that because of production variables, an increased hourly
guarantee does not necessarily lead to increased earnings,
but that, on the contrary, an employee's piece-rate
earnings on a changed operation may be, and have been,
less in some periods, despite an increase in the guarantee,
than in others when a lower hourly minimum was in effect.
The wage data produced by the General Counsel are
somewhat meager (omitting, as it does, information that
could be helpful for comparison purposes, such as rate
revisions in months other than February and March, and
actual earnings for significant periods before and after the
rate adjustments), but his own evidence provides some
corroborative support for Yoshida. is
Moreover, another 12 of the 30 employees in question
were relatively "new," and I see no reason to disbelieve
testimony by Yoshida that after "new" operators gain
some experience, the Company follows a practice of giving
them an increase in their hourly minima as an incentive to
stay on; and that that was the reason in the case of those in
the "new" category. It is well to note, in that regard, that
the Company had a much larger percentage of "new"
employees in the period spanning the last quarter of 1965
and the first quarter of 1966 than in the corresponding
quarters a year earlier, and one may reasonably believe
that this accounts for part of the rise in the number of
minimum rate increases in the relevant period in 1966 over
the number in the comparable 1965 period.
Actually, there is no evidence that the earnings of any of
the 30 employees, as distinguished from their guarantees,
were, in fact, increased as a consequence of the revised
minimum rates. The risk of basing findings on so sparse a
record as the General Counsel has made on the relevant
issue is perhaps best exemplified by the evidence
pertaining to one of the employees, Juha Dezoraiger,
whose guaranteed hourly rate was increased from $1.50 to
$1.55. The record contains evidence of her actual average
hourly earnings for only one week before her guaranteed
minimum was raised and in that week her earnings
averaged $2.17. In a number of weeks after the increase,
the only ones since then for which there is any evidence as
to her earnings, she averaged substantially less than $2.17
per hour, despite the increase in her guarantee. In other
words, for all that appears in her case, the increased
guarantee had no effect upon her earnings.
Finally, it is well to bear in mind that the guaranteed
minima of only a minority of the production staff were
increased, and that there is no evidence that these were
selected because the management had some particular
information or belief as to their union attitudes. That being
the case, it is pertinent to ask why the Company would
increase the rates of a minority to influence their electoral
preference, and run a corresponding risk of arousing the
hostility of some or all of those not similarly favored. The
record supplies no plausible answer to that question.
For the reasons stated, Objection 10 should be
overruled, and I shall recommend dismissal of the
allegations of unlawful wage increases.
is As evidenced by my conclusion that the acts of interrogation
summarized above were unlawful, I do not agree with the
Respondent 's view , expressed in its brief , that the relevant
"evidence was of incidents of a very trivial and limited nature " I
see nothing "trivial ," especially in the preelection setting, in the
inquiry of Medina by Young, a top management official, about
Valencia's attitude toward the Union, which was as much as to
ask Medina to inform on another employee, but apart from that,
particularly in the climate of preelection organizational efforts
such as those involved here , and against the background of the
statements and intimations that unionization would or could result
in layoffs, and of the implication that employees' union activities
were under surveillance, the acts of interrogation, in my view, had
a coercive reach
"See G C Exh 3, prepared from the Company's payroll
records, showing that almost all of the 12 employees mentioned
had in one or more periods been able to achieve piece-rate
earnings, while their old minima were in effect, that, on an
average hourly basis, substantially exceeded their new minima
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Alleged Discrimination Against Dulce Fumero
Fumero worked for the Company for about 3 years as a
sewing machine operator, her employment terminating on
May 6, 1966, about 5 weeks after the election, under
circumstances to be described.
From time to time throughout her employment, she
performed sewing operations on swimsuits, and worked
exclusively on such garments for about 7 months prior to
some point in April 1966. Her work in that period consisted
of joining the pants legs of the swimsuits, and sewing the
reinforcement into the crotch area of the garment. Fumero
trained another employee to do the same type of work, and
the latter was so engaged during the last several months of
Fumero's employment. Following the sewing operation by
Fumero or the other, the garment would go next in the
production line for additional processing to one or the
other of two employees, Sherley Thompson and Mary
Pina.
A few days after the election, Yoshida, in the presence
of Hazel Smith, Fumero's immediate supervisor, charged
Fumero with doing inferior work (sewing crotches
unevenly) on some 400 or 500 swimsuits , all of them
processed since the election; and instructed her to
"repair" them. Fumero, directing her remarks to Smith,
whom she apparently held accountable at that time for the
complaint, protested that the work was not inferior, but
Yoshida adhered to his position.17
One morning, about 5 days later, Yoshida, in his office,
speaking in English, and using Sanchez to interpret in
Spanish, told Fumero that Smith would no longer accept
any work from her unless it was checked by an inspector.
Fumero replied, in effect, that she had worked in the plant
for 3 years "on different jobs" and was not irresponsible,
and that the inspection procedure would make her "the
object for a show for everybody" (or, in other words, would
humiliate her); and she requested Yoshida "to give [her] a
layoff with a document so that [she] could work
elsewhere." Yoshida rejected her request, stating, in
substance, that she could do as she wished, and that a
replacement for her was available from a list maintained
by the State employment office. As Fumero testified
credibly, she felt "nervous" and "sick," and told Yoshida
that she wished to take some time off that day. He replied
that she could do as she wished, and she left the plant for
the balance of the day.18
Within a period of a few days thereafter, Yoshida
assigned Fumero to another operation, the sewing of
"darts" (not necessary to elaborate here) on beach robes.
Fumero had performed that work before, as she had every
other type of sewing in the plant, and the task, as both
Young and Fumero describe it, was the "simplest" sewing
operation there.
Yoshida designated Sanchez, who supervised brassiere
production and had no duties in the swimwear
department, to inspect Fumero's work in that department.
There is some confusion and self-contradiction in
Sanchez' testimony as to when she began the inspection
assignment. Initially, she stated that she began to check
Fumero's performance while the latter was still engaged in
"swimsuit work," but later she said that she "didn't check
the crotches," and what she "inspected most" of Fumero's
work were the robes, and, under cross-examination, she
testified that she "started to check her [Fumero's] work
when she was given the robes."
This last testimony, it may be noted, does not quite jibe
with claims by Yoshida and Smith to the effect that Smith
was relieved of the duty of inspecting Fumero's work, and
the function assigned to Sanchez, shortly after the
discovery of the allegedly defective swimsuits ("probably"
the same day, according to Yoshida; or the following day,
according to Smith, who testified that "the next day" she
instructed Sanchez in details of Fumero's work on
crotches, so that Sanchez could "watch" that work). One
may infer from Fumero's evidence that Sanchez began to
inspect her work about the time she was assigned to the
dart-sewing operation, and, under cross-examination,
Sanchez substantially supports such a conclusion. I am
satisfied, in short, that such was the case.
Moreover, I do not believe testimony by Yoshida that
Sanchez' inspection assignment was a "normal " routine of
supervisory examination in effect "throughout the shop,"
taking place "once in the morning, maybe twice," and in
some situations , a "couple of times in the morning and a
couple of times in the afternoon." According to Fumero,
prior to the election, her work had never been inspected
before it went to the next operator in the production line,
but after she began the dart-sewing operation, "the
inspector [Sanchez] would be there checking piece by
piece." Sanchez gave much the same account of the
inspection method she applied to Fumero, testifying: ".. .
I didn't leave her pile up too much work. When she
finishes a bundle, I would open up the bundle. I would
check every garment in the bundle." I credit Fumero's
testimony on the subject of inspection of her work before
and after the election.
Fumero continued in the robe-sewing operation until the
end of her employment some 2 or 3 weeks later . As in the
case of the swimsuits after the election, there is no dispute
that the management was critical of her robe-sewing work,
returning a substantial portion of the garments to her for
repairs, but the record reflects some conflict as to the
17 Differences in estimates reflected in the record as to the
number of swimsuits involved do not matenally affect the issues,
nor is it necessary to resolve a subsidiary question whether some
50 or 100 of the garments , as Fumero claims , had not been
processed by her
is Findings as to the conversation are based on Fumero's
testimony Yoshida does not, in terms , deny that the conversation
took place , but states that he does not "recall ' one in which
Fumero quotes Smith as declining to accept Fumero's work
without inspection Sanchez' testimony also contains no denial
that the conversation , as Fumero relates it , occurred Yoshida
does portray himself as having a conversation , through Sanchez,
with Fumero, in which the latter "said she wanted to go home,"
but from Yoshida's account , it would appear that he said nothing
to her about inspection , and that, in essence, what he told Fumero
was that as a "good operator" she was "capable of doing better
work," and that she was not "to be calling anybody names" (an
allusion to a claim , to be discussed later, that Fumero had called
Hazel Smith "a filthy name "). The fact is that a special inspection
procedure was established for Fumero, and I think it plausible
that Yoshida would, at one point or another , tell Fumero about it
Moreover , Yoshida claims that he made the inspection change
shortly after he learned of the inferior work ("probably" on the
same day), but Sanchez admittedly did not begin to inspect
Fumero 's work until the latter was assigned to sewing beach robes
some days (8 to 10 , according to Sanchez) after Fumero began
to "repair" the swimsuits . This suggests that the new inspection
procedure was put into effect substantially after the time claimed
by Yoshida, and to that extent contributes weight to Fumero's
account of her conversation with Yoshida. I find that account
credible, and have made corresponding findings.
HOLLY BRA OF CALIF. 1121
extent and duration of the allegedly defective work.
Sanchez gave testimony to the effect that for about 5 days
after she began to inspect the robes, she found defects in
Fumero's work in about half the garments processed, but
that she discontinued inspecting the work at the end of the
period because of her regular supervisory duties, and
because Fumero's sewing became "very nice." Smith
testified that Fumero's work on the robes was "bad" from
the "first bundle" for about a week, and was satisfactory
thereafter.
However, there is good reason to believe that the
faultfinding was greater than one would gather from
Sanchez and Smith. According to Fumero, Sanchez
continued to inspect her robe sewing for the rest of her
employment, and this is given some corroborative support
by Yoshida's testimony that 60 to 70 percent of her robe
output was defective. Moreover, it is undisputed that
about a week after she was assigned to the robe operation,
Fumero, who had been under the care of a doctor for a
nervous condition for some months, complained to
Yoshida, in the presence of David Young's brother, Efrem,
who is president of the Company, "about the situation,"
stating that she had a nervous condition, and feared that it
would become "something serious" because she could not
work "with someone watching or looking over me every
minute." Efrem Young asked her whether she thought that
"trying to disrupt a good work or employment permitted
good treatment," but he terminated the conversation when
she attempted to reply. Fumero also complained to David
Young in much the same vein about 2 days later. I am
satisfied from the tenor of these complaints, the time when
they were made, and Yoshida's claim that her sewing was
defective on 60 to 70 percent of the robes she processed,
that the faultfinding lasted substantially until the end of
her employment.
For the work she did in purported "repair" of both the
swimsuits and robes, Fumero was compensated not on a
piece-rate basis, but at the minimum hourly rate
prescribed for her.
On May 6, following a visit to her doctor, Fumero,
carrying "a slip" from her physician, spoke to Yoshida in
his office, with Sanchez serving as interpreter, and told the
manager that her nervous condition was not improving,
that her doctor had told her that she "needs a complete
rest," and that upon her physician's advice, she would not
work for about a month. Yoshida asked her what she
would io thereafter, and she replied that she would return
to work.19
Fumero was absent for about a month, and at the end of
the period, she telephoned Yoshida, told him that her
doctor had approved her return, and inquired whether
there was work available for her. Yoshida said that he did
not wish to talk to her on the telephone, and suggested that
she come to the plant. She did so later that day.
There is material conflict as to what took place.
According to Fumero's account, she reiterated
substantially what she had said on the telephone, and
Yoshida told her that her return would be impossible
because she became "nervous" working under Smith's
supervision. Yoshida, on the other hand, supported by
Sanchez, who acted as interpreter, testified, in substance,
that her physician "couldn't give her any more disability;"
that she did not wish to work during her children's school
acation, was on her way to the "Employment Office"
(meaning, presumably, the State unemployment
compensation facility), and wished to know what he would
"answer on the form" sent by it; that he replied that he
would say that work was available for her and that she did
not wish to work; that she said that if she returned, she
would do the "same type of work" (a reference,
apparently, to her allegedly defective work); and that he
retorted that he "couldn't afford" to have her do so. The
credibility issue will be resolved at a later point.
Turning ,to the issue of discrimination, I am in no doubt
that the management regarded Fumero as a union activist
and attributed to her at least some responsibility for the
effort to organize the plant. Both David Young and
Yoshida gave testimony to the effect that before the day of
the election she was the only employee they had any
"reason to believe" was an adherent of the Union, and
Yoshida, as Fumero testified credibly, referred to her as
"the initiator of the [union] problem at the plant," and on
the morning of the election, shortly before the balloting, in
effect admonished her not to discuss unionization with any
employees because he was precluded from doing so "at
that hour." The evidence, in short, supports a conclusion,
and I find, that the management regarded Fumero as a key
figure in promoting prounion sentiment among the
employees.
Against that background, the General Counsel
maintains that soon after the election the Respondent
embarked upon a program of discriminatory harassment
of Fumero, consisting of baseless faultfinding,
requirement of unnecessary "repairs," for which she was
paid only her minimum hourly rate, and humiliating "piece
by piece" inspection of her work, all with the aim of
ridding the plant of a union activist, resulting in emotional
upset for her, leading her to absent herself for that reason
for about a month, and culminating in Yoshida's refusal to
reemploy her when she sought to return.
There is no dispute that Fumero was under medical
care, and no reason to doubt that whether or not justified,
the faultfinding and "piece by piece" inspection
procedure, which Sanchez, according to her own
testimony, followed at least for a time, humiliated Fumero
and caused her emotional upset. Yoshida himself
characterized Fumero as "an emotional girl," and testified
that on the occasion when she expressed a wish to take
part of the day off, "she could have had tears in her eyes,"
and that he "told her it wouldn't look nice to go home now,
to take a drink of water and rest awhile and go back
upstairs." Moreover, as Sanchez testified in substance,
immediately prior to Fumero's discussion with Yoshida (on
May 6) of her physician's advice that she take sick leave,
Fumero was "crying" and "very nervous." The impact
upon her may fairly be inferred, too, from the undisputed
evidence of her complaint to Yoshida, in Efrem Young's
presence, that she was "sick from my nerves" and would
be unable to continue to work "with someone watching or
looking over me every minute."
19 I do not credit a claim by Yoshida that Fumero told him that
she would not return to work The plain implication of her visit to
Yoshida's office was that she was seeking a leave of absence.
Yoshida himself quotes her as saying she was "going to have to
take some time off, three to four weeks," and one may reasonably
infer that what she had in mind was "time off ' from the job she
had. There would seem to be little point in her telling Yoshida that
she would be "off" for several weeks if her purpose was to
terminate her employment Fumero's version is, in my judgment,
more plausible than Yoshida's and I have, accordingly, based the
relevant findings on her account
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is, however, sharp conflict over the question
whether the faultfinding was a sham. According to
Fumero, her work on the hundreds of swimsuits with
which the management found fault soon after the election
was the same as she had long done on such garments prior
thereto, and was not deficient, and she insisted in her
testimony that there was nothing to repair on the rejects,
and that what she did, in that regard, was "just [to] do
some time with them" or, in other words, that she simply
went through needless motions of resewing them.
Similarly, according to her, there was nothing wrong with
her work on any of the robes.
The Company, on the other hand, through testimony of
its supervisory personnel concerned, and two employees,
Sherley Thompson and Mary Pina, who performed sewing
operations on the swimsuits in the production line
following Fumero, claims that the latter 's sewing on the
swimsuits was deficient because edges were not sewn
together evenly. In addition , according to Yoshida and
Smith , Sanchez was assigned to supervise Fumero's work,
in lieu of Smith , because Fumero was insolent to Smith,
calling the latter an obscene name shortly after the alleged
discovery of defective work on the swimsuits , and Smith
declined to have anything more to do with Fumero.
Fumero denies that she used the epithet in question.
In passing on the issue of the equality of Fumero's
postelection work , it would be a mistake to write off her
evaluation simply because she is the only witness who
supports it , and a number of witnesses oppose it, nor does
it stand condemned because testimony she gave on other
subjects is not a suitable basis for findings. The
managerial claims are weighted with interest (as is
Fumero's testimony , to be sure ), and, in the posture of the
whole record , I am unable to accept the testimony of Pina
and Thompson as a persuasive guide to the truth. Pina
appears to have some bias against the Union's
organizational effort , and was less than candid about it.
When asked to identify a female organizer for the Union,
she equivocated about the matter ; then , when pressed,
conceded with obvious reluctance that "she looks
familiar"; soon thereafter admitted that "maybe" she did
tell the "lady to drop dead "; and finally made it obvious
that she recognized the organizer , for she proceeded to
defend her invitation to her "to drop dead" with an
explanation that the latter had attempted to force a union
pamphlet on her outside the plant . Thompson 's testimony
is attended by self-contradiction . She testified that she
was familiar with Fumero 's machine stitch, and
recognized it when she saw the defective work; then
altered course and stated that she did not know which of
two operators , Fumero or another , had done the work,
testifying , too, that she complained about the deficient
sewing to Smith . However , in a pretrial statement she
swore that she complained to Yoshida about Fumero's
work , and that she recognized the defective sewing as
Fumero's "because each machine 's stitch is different, and
the operator's clock number is on the bundle." The nub of
the matter is that there is much more in the record to serve
as a guide to decision than the mere weight of numbers the
Respondent summons to support its position.
It is an important fact that Fumero is an experienced
sewing machine operator who, in her 3 years of
employment by the Company prior to the election, had
worked at every type of sewing operation in the plant,
including those in question on swimsuits and robes, and
had given satisfactory service. Yoshida conceded that
prior to the election he had never received a complaint
about Fumero 's performance from any supervisor , and had
never seen any inferior work by her.
Against that background , it would be a manifest
absurdity to claim that her allegedly deficient work in the
large volume attributed to her by the management was the
result of sudden incompetence , and, in fact, the
Respondent makes no such claim , taking the position,
instead , in its brief, that Fumero "wanted to be laid off so
she could draw unemployment compensation ," and upon
meeting refusal, "intentionally produced bad work to get a
discharge ." This contention is not entitled to belief for a
number of reasons that follow.
One that is quite evident is that the image of Fumero as
deliberately seeking to provoke her discharge by
persistently poor work does not quite jibe with the fact,
amply established by the evidence, that the criticism and
close inspection of her output gave her a feeling of
humiliation and upset her emotionally. Unjustified
faultfinding , impediment to her earning capacity, and an
intensive and unusual inspection procedure would
rationally explain such an impact upon her; the claim of
deliberately poor work performance does not.
Implausibility runs through the Respondent's thesis in
other respects as well . If it is true, as it maintains, that
Fumero was turning out deficient work in the considerable
volume attributed to her , it is difficult to understand why
she was not discharged , especially as the Respondent,
according to its claim , had in its possession physical
evidence of her defective performance in the form of many
hundreds (perhaps thousands) of poorly sewn garments. It
defies rational belief, too, that a factory worker such as
Fumero, dependent , as one may reasonably infer , upon her
earnings for the support of herself and children of school
age, would deliberately seek discharge and a cessation of
such earnings to secure a reduced , temporary income from
unemployment compensation , and it is even more
implausible to believe that she would resort to so self-
defeating a dodge as the deliberate and protracted
misconduct imputed to her, which could have the effect,
as is commonly known, of depriving her of the
unemployment compensation she was allegedly seeking.20
To that, I may add my impression of Fumero as an earnest
person whose attention would more likely be centered on
earning a living for herself and family than playing a
species of game designed to bring about her dismissal with
the adverse economic effects that could follow in its wake.
Moreover , self-contradiction and exaggeration attend
the Respondent 's effort to portray Fumero as deliberately
courting discharge. As previously described, a claim by
David Young , in a pretrial affidavit, that Fumero had
"asked me twice about being laid off," substantially
repeated in his direct examination , grew to one, under
cross-examination , that Fumero made such requests "at
least a half a dozen times, if not more ." There is a similarly
exaggerated thrust in claims by Sanchez that after the
election Fumero told her "many times" a day and about
"five times" one morning that she wished "to get laid off."
The function of laying off personnel was Yoshida's
province , and it does not plausibly appear why Fumero
20 As is common among the States California law provides for
denial of benefits to one discharged for misconduct California
Unemployment Insurance Code, § 1256
HOLLY BRA OF CALIF.
should be so repetitive about the matter in so short a time
with Sanchez who, if she is believed , had production
contacts with Fumero for only about a week.
Nor am I persuaded by Yoshida 's version of his last
conversation with Fumero . Yoshida would have it, in
effect , that she told him she did not wish to work while her
children were on school vacation ; asked him what he
intended to tell the unemployment compensation authority
regarding her work status; and , receiving an unfavorable
reply from Yoshida, said that if she returned she would
"do the same type of work ," or, in other words, threatened
that she would deliberately do poor work . She denies, in
effect , that she ever sought a layoff status, and the
material sum of her account of the conversation is that she
told Yoshida that her medical disability had ended, and
that she wished to return to work , and that Yoshida
rejected her request , giving as the reason that she
"became nervous" working under Smith 's supervision.
I find Yoshida 's version short in a number of respects.
By implication , he pictures Fumero as in effect admitting
that she had deliberately done poor work and as
threatening to continue to do so, but the evidence does not
plausibly establish that she had misconducted herself,
and, consequently , the alleged admission and threat have
no greater plausibility . Moreover , she had taken a leave of
absence for about a month upon medical advice, and it
would seem to be only natural that she would seek to
return to work upon expiration of the time. Indeed,
Yoshida himself quotes Fumero as asking him "if [he] had
work for her" when she telephoned him before coming to
the plant at his request , and this, in essence, is what she
says she asked him when she came there. I think it more
likely that she would renew her request when she came to
the plant , as she states , than that she would take the
reverse course Yoshida describes.
The sum of the matter , for the reasons stated , is that I
credit Fumero ' s account of the conversation , and her
testimony to the effect that the only time she ever
requested a layoff status from any supervisor was when
she complained to Yoshida about the special inspection
procedure , asking for "a layoff with a document so that
[she] could work elsewhere "; and I am unable to accept
the claim that she deliberately did poor work.
On the contrary , a total view of the record leads me to
conclude that the faultfinding was a sham aimed at
humiliating and punishing her because she was a union
activist . That purpose becomes clearly visible, in the light
of the total record , in credible testimony by Geraldine
Wilson that while she was at work she heard Smith tell
Pina, who works next to Wilson, that "as soon as the
election was over ... she [Smith ] had some plans for
Dulce [Fumero]." To be sure , Smith and Pina deny that
the remark was made, but for reasons previously stated,
Wilson appeared to me to be a trustworthy witness. Pina,
as also noted earlier , evidenced a lack of candor and some
hostility toward the Union ; and Smith 's interest is
apparent. I credit Wilson 's testimony.
That result supports a finding that Fumero was a target
of managerial discrimination , but with or without Wilson's
testimony , the sequence of events tells us, in end result,
that the management did, in fact , have "plans" for
Fumero, and what they were. As the evidence establishes,
in the eyes of the management , Fumero was an active
proponent of the Union , and the "initiator of the [union]
problem" at the plant, preceding the election. Practically
immediately after the election , so the Respondent claims
in effect , particularly through Yoshida , Fumero's work
1123
suddenly turned poor and was deficient on substantially all
of the swimsuits , and some 60 to 70 percent of the robes,
on which she worked after the election , extending even to
the "simplest" sewing operation in the establishment.
This claim permits three choices . One is that Fumero was
deliberately deficient in her work , but that is implausible
for reasons stated earlier . Another is that she suddenly
became incompetent after the election and performed that
way for much of the balance of her employment, some 5
weeks following the election . This is quite implausible
and, as previously pointed out, the Respondent makes no
claim that the deficient work was the product of
incompetence. I hold the third view , and that is that
Fumero's work after the election was not, in fact,
deficient , but that the course followed by the management
was to find extensive fault with Fumero's performance
after the election , to impede her earning capacity by
saddling her with unnecessary "repairs" for which she
was paid only at her minimum hourly rate, and to subject
her work to a needlessly close inspection procedure
applicable only to her, all with the aim of humiliating her,
and making her employment burdensome and intolerable
in order to induce her to quit and thus rid the plant of a
union activist.
These conclusions are not diminished by the claim that
Sanchez was appointed to inspect Fumero's work because
the latter called Smith an obscene name. I have some
doubt that Fumero is the type of woman who uses such
epithets , but the barrier of language impedes a judgment
in the matter. Perhaps she uses such language freely,
perhaps only under such provocation as baseless
faultfinding , perhaps not at all. The point of the matter is
that one may assume that she did use the epithet , and that
does not rationally account for the type of inspection to
which she was subjected. According to Yoshida , "normal
inspection ... throughout the shop " consists of checking
an employee 's work "a couple of times in the morning and
a couple of times in the afternoon ," but Sanchez went
much beyond such a routine , as is evident from her own
testimony , as well as that of Fumero.
Fumero had never been subjected to such a procedure
(nor, so far as appears, had any other employee ), and there
is little wonder that an employee of her long and
satisfactory service, especially when assigned to the
"simplest" sewing operation, should be upset by the close
scrutiny and complain to Yoshida that she was "now sick
from my nerves," feared more serious illness, and could
not continue her work "with someone watching or looking
over me every minute." Efrem Young 's intimation on that
occasion that Fumero did not deserve "good treatment"
because she had tried "to disrupt . good work or
employment" is revealing . In the context of
circumstances , one may reasonably conclude , as I do, that
the disruption to which he referred was Fumero's union
activity. I am convinced , in short , that the close inspection
procedure was an implementation of a plan by the
management to humiliate and harass Fumero into quitting
her job.
In summary , I hold , for the reasons stated , that the
Company by force of the unfounded criticism of Fumero's
work , the requirement that she make unnecessary repairs,
the consequent impediment to her piece -rate earning
opportunities , and the unusual and close scrutiny of her
work , interfered with , restrained , and coerced employees
in the exercise of rights guaranteed them by Section 7 of
the Act , thus violating Section 8(a)(1) of the statute, and
discriminated against Fumero in conditions of her
298-668 0-69-72
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment to discourage union activity and membership
among the Company's employees, thereby violating
Section 8(a)(3) of the Act; that by such conduct, the
Respondent made Fumero's employment so burdensome
and intolerable for her that she was forced to leave it on
May 6, 1966; that the Respondent was thus responsible for
her loss of work that followed; that the refusal to reemploy
her, as found above, was motivated by the Respondent's
hostility to Fumero's union activity and interest; that by
causing her to leave her work and thereafter refusing to
reemploy her, the Company in effect terminated her
employment, and by such termination interfered with,
restrained, and coerced employees in the exercise of
Section 7 rights, thereby violating Section 8(a)(1) of the
Act, and discriminated _ against Fumero in violation of
Section 8(a)(3) of the Act; and that the Company abridged
Section 7 rights of employees, thus violating 8(a)(1), as a
result of Smith' s statement to Pina to the effect that she
had postelection "plans" for Fumero.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Company has engaged in unfair
labor practices violative of Section 8(a)(1) and (3) of the
Act, and in misconduct affecting the results of the
election, I shall recommend below that the Company
cease and desist from the unfair labor practices found, and
take certain affirmative actions designed to effectuate the
policy of the Act; and that the election be set aside.
In view of the nature and scope of the unfair labor
practices committed, and in order to make effective the
interdependent guarantees of Section 7, I shall
recommend an order below which will in effect require the
Company to refrain in the future from abridging any of the
rights guaranteed employees by said Section 7.21
Having found that the Company discriminatorily caused
the termination of Dulce Fumero's employment on May 6,
1966, and thereafter discriminatorily refused to reemploy
her, in violation of Section 8(a)(1) and (3) of the Act, I shall
recommend that the Company offer her immediate and
full reinstatement to her former or a substantially
equivalent position,22 without prejudice to her seniority
and other rights and privileges, and make her whole for
any loss of pay she may have suffered by reason of her said
termination and denial of employment, for the period
beginning on May 6, 1966, to the date on which she
is offered reinstatement, as aforesaid, together with
interest thereon at the rate of 6 percent per annum, as
provided below; and that the said loss of pay be computed
in accordance with the formula and method prescribed by
21 N.L .R B v Entwistle Mfg Co , 120 F.2d 532 (C A 4) May
Department Stores v N L R B, 326 US 376, Bethlehem Steel
Company v NLRB ., 120 F . 2d 641 (C A D C ).
22 In accordance with the Board 's past interpretation, the
the Board in F.W. Woolworth Company, 90 NLRB 289,
and include interest at the rate of 6 percent per annum, as
provided in Isis Plumbing & Heating Co., 138 NLRB 716,
to which cases the parties to this proceeding are expressly
referred.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding, I make the
following conclusions of law:
1. Holly Bra of California, Inc., is, and has been at all
times, an employer within the meaning of Section 2(2) of
the Act.
2. Los Angeles Dress and Sportswear Joint Board,
International Ladies' Garment Workers' Union,
AFL-CIO, is, and has been at all times material times, a
labor organization within the meaning of Section 2(5) of the
Act.
3. By interfering with, restraining, and coercing
employees in the exercise of rights guaranteed them by
Section 7 of the Act, as found above, the said Company
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4 By discriminatorily causing the termination of the
employment of Dulce Fumero, and refusing to reemploy
her, as found above, the Company has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. The record does not establish any unfair labor
practices alleged in the complaint , except as found above.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law , and upon the entire record in this
proceeding, I recommend that Respondent , Holly Bra of
California , Inc., its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership of any of their employees
in Los Angeles Dress and Sportswear Joint Board,
International Ladies' Garment Workers ' Union,
AFL-CIO , or any other labor organization , by discharging
any employee , or otherwise causing the termination of any
employee's employment , or refusing to employ, or
otherwise denying employment to, any employee, or in any
other manner discriminating against any employee with
respect to hire, tenure of employment , or any term or
condition of employment.
(b) In any manner constituting interference , restraint,
or coercion in violation of the said Act interrogating any
employee as to any employee 's activities , membership or
interest in, attitude toward, or affiliation , association, or
contact with , any labor organization.
(c) Threatening , or in any other manner stating to, any
employee that it will go out of business or discontinue any
operation , or that employees will lose or be denied
employment , or that they will be subjected to unfavorable
expression "former, or a substantially equivalent , position" is
intended to mean "former position wherever possible, but if such
position is no longer in existence , then to a substantially
equivalent position ." See Chase National Bank of the City of New
York, San Juan, Puerto Rico, Branch, 65 NLRB 827.
HOLLY BRA OF CALIF.
working conditions or otherwise harassed, if employees
vote for or otherwise designate a labor organization as
their bargaining representative or engage in any activity
in, with, or on behalf of, any such organization.
(d) Harassing , impeding , or otherwise interfering with,
the work or working conditions of any employee because
such, employee has engaged in or is engaging in any
activity with, or on behalf of, any labor organization, or
adheres, or is sympathetic, to such organization.
(e) Promising , or otherwise stating to, any employee
that wages will be increased, or that any other benefit will
be given employees, if they refrain from designating or
otherwise supporting a labor organization as their
bargaining representative.
(f) In any way stating to , or otherwise informing, any
employee, whether directly or indirectly, or by implication
or intimation , that employees' union activities are under
surveillance by the Company.
(g) Admonishing, requiring, or requesting any employee
not to engage in any activity for, or on behalf of, any labor
organization, including solicitation of support of such
organization, where such activity involves no use of
working time of any employee.
(h) Or in any other manner interfering with , restraining,
or coercing employees in the I exercise of any rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative actions, which I find
will effectuate the policies of the Act:
(a) Offer to Dulce Fumero immediate and full
reinstatement to her former or a substantially equivalent
position , without prejudice to her seniority and other rights
and privileges, and make her whole, together with interest,
as provided in the section of this Decision entitled "The
Remedy."23
(b) Preserve and, upon request, make available to the
National Labor Relations Board or its agents, for
examination and copying, all payroll records, social
security payment records, timecards, and personnel
records appropriate to a determination of the amount of
backpay due, and effectuation of provisions for
reemployment, under the terms of any order of the said
Board in this proceeding.
(c) Post at the Company's place of business in Los
Angeles, California, copies of the attached notice marked
"Appendix."24 Copies of said notice, to be furnished by
the Regional Director for Region 31, after being duly
signed by its representative, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the said Company to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 31, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.25
The complaint be dismissed to the extent that it
alleges unfair labor practices other than those found
above, and to that extent only.
Objection Nos. 2, 3, 5, 6, 7, and 8 be sustained to the
extent found above; Objection No. 10 be dismissed; and
the election held on March 31, 1966, be set aside.
23 I dispense with provisions , customary in unlawful discharge
cases, for notification to a discnmmatee of reinstatement rights
under the Selective Service and Universal Military Training and
Service Acts, since there is no reason to believe that Fumero, with
1125 `
her language limitations and children of school age, will ever enter
the Armed Forces
24 In the event that this Recommended Order is adopted by the
Board, the words " a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board 's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words " a Decision and Order "
25 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read- "Notify said
Regional Director, in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT in any manner constituting
interference, restraint, or coercion in violation of the
said Act interrogate any employee as to any
employee's activities, membership, or interest in,
attitude toward, or affiliation, association, or contact
with, any labor organization.
WE WILL NOT threaten, or in any other manner
state to, any employee that we will go out of business
or discontinue any operation, or that employees will
lose or be denied employment, or that they will be
subjected to unfavorable working conditions or
otherwise harassed, if employees vote for or otherwise
designate a labor organization as their bargaining
representative or engage in any activity in, with, or on
behalf of, any such organization.
WE WILL NOT harass, impede, or otherwise
interfere with, the work or working conditions of any
employee because such employee has engaged in or is
engaging in any activity in, with, or on behalf of, any
labor organization, or adheres, or is sympathetic, to
such organization.
WE WILL NOT promise, or otherwise state to, any
employee that wages will be increased, or that any
other benefit will be given employees, if they refrain
from designating or otherwise supporting a labor
organization as their bargaining representative.
WE WILL NOT in any way state to, or otherwise
inform, any employee, whether directly or indirectly,
or by implication or intimation, that employees' union
activities are under surveillance by us.
WE WILL NOT discourage membership of any of our
employees in Los Angeles Dress and Sportswear Joint
Board, International Ladies' Garment Workers'
Union, AFL-CIO, or any other labor organization, by
discharging any employee, or otherwise causing the
termination of any employee's employment, or
refusing to employ, or otherwise denying employment
to, any employee, or in any other manner
discriminating against any employee with respect to
hire, tenure of employment, or any term or condition
of employment.
WE WILL NOT admonish, require, or request any
employee not to engage in any activity for, or on
behalf of, any labor organization, including
solicitation of support of such organization, where
1126 DECISIONS OF NATIONAL
such activity involves no use of working time of any
employee.
WE WILL NOT in any other manner interfere with,
restrain, or coerce any employees in the exercise of
any rights guaranteed them by Section 7 of the
National Labor Relations Act, as amended.
WE WILL offer Dulce Fumero immediate and full
reinstatement to her former, or a substantially
equivalent position, without prejudice to her seniority
and other rights and privileges, and reimburse her for
any loss of pay she may have suffered by reason of our
discrimination against her, together with interest on
the amount reimbursed.
The election held on March 31, 1966, in this plant
has been set aside by the National Labor Relations
Board because the employer committed unfair labor
practices.
LABOR RELATIONS BOARD
All of our employees are free to become and remain
members of any union of their choice.
HOLLY BRA OF CALIFORNIA,
INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 10th Floor,
Bartlett Building, 215 West Seventh Street, Los Angeles,
California 90014, Telephone 688-5850.