Jean Pier

National Labor Relations Board - Board Decisions

Apr 6, 1979

241 N.L.R.B. 774 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Victor Patino and Nydia Patino; Victor Patino and
Nydia Patino d/b/a Jean Pier; Richard Erquiaga
d/b/a California Sewing' and Los Angeles Joint
Board of the International Ladies' Garment Work-
ers' Union, AFL-CIO. Cases 31-CA-6615, 31-
CA-5612, 31-CA-5771, and 31-CA-5849
April 6, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On September 20, 1976, Administrative Law Judge
Irving Rogosin issued the attached Decision in con-
solidated Cases 31 CA-5612, 31 CA-5771, and 31-
CA-5849, herein referred to as Case 31 CA-5612, et
al. Thereafter, Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed excep-
tions.2 Subsequently, while the Board was considering
the Administrative Law Judge's original Decision, the
General Counsel, on March 15, 1977, filed a motion
with the Board requesting that the Board reopen the
record in Case 31-CA-5612, et al., and consolidate
that proceeding with Case 31-CA-6615, upon which
the Regional Director had issued a complaint but
which had not yet been heard by an Administrative
Law Judge, and remand the entire proceeding for
hearing before Administrative Law Judge Rogosin.
On May 25, 1977, the Board issued an Order granting
the motion and reopening the record in Case 31-CA-
5612, et al., for the purpose of either consolidating
these cases with Case 31-CA-6615, or amending the
complaint in Case 31-CA-5612, et al., to include the
related allegations of Case 31-CA-6615. The Board
also remanded the proceeding to the Regional Direc-
tor for Region 31 for further hearing.
Thereafter, the record was reopened, the cases were
consolidated, the complaint in 31-CA-6615 was
amended, and a further hearing was held before Ad-
ministrative Law Judge Rogosin. On February 22,
1978, Administrative Law Judge Rogosin issued the
attached Supplemental Decision in this proceeding,
and on February 27, 1978, he issued an errata
thereto. Subsequently, Respondent filed exceptions to
the Supplemental Decision and the General Counsel
filed limited cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
I Hereinafter collectively called Respondent.
2 As discussed by the Administrative Law Judge in fn. 4 of his Supplemen-
tal Decision. the General Counsel has moved to strike Respondent's excep-
tions to the original Decision. In light of our decision herein, we find it
unnecessary to rule upon the motion to strike.
3 The motion was titled "Motion to Amend Consolidated Complaint, Re-
open Record and Remand for Further Hearing or, Alternatively, Motion to
Reopen Record, Consolidate Cases and Remand for Further Heanng."
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decisions in light of the exceptions and brief
and has decided to affirm the rulings, findings,4 and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found, and for the
reasons set forth by him we agree, that Respondent
violated Section 8(a)(1), (3), and (5) of the Act in var-
ious respects during and after the Charging Party's
successful organizing campaign among Respondent's
employees. We do not agree, however, with his find-
ing that Respondent Victor and Nydia Patino d/b/a
Jean Pier violated Section 8(a)(5) of the Act on Sep-
tember 12, 1975, by unilaterally offering the employ-
ees an insurance plan. The offer occurred approxi-
mately 6 weeks before the Board-conducted election
which the Union won and therefore before Respon-
dent was required to bargain with the Union. How-
ever, we agree with the Administrative Law Judge's
conclusion, for the reasons fully stated by him, that
the offer constituted an independent violation of Sec-
tion 8(a)(1).
As discussed by the Administrative Law Judge, Re-
spondent Victor Patino and Nydia Patino d/b/a Jean
Pier shut down the Jean Pier operation in December
1975. In January 1976 the Patinos began operations
again in a new location with new employees. Several
months later the operation was continued under the
name of Richard Erquiaga d/b/a California Sewing.
As disclosed at the hearing and found by the Admin-
istrative Law Judge, California Sewing was actually
owned by the Patinos.
The Administrative Law Judge found, among other
violations, that the original closure by the Patinos d/
b/a Jean Pier was for the purpose of avoiding its bar-
gaining obligation with the recently certified Union,
and, therefore, was in violation of Section 8(a)(5). He
also found that the employees who were terminated
in December 1975 as a result of the plant closure, as
well as four who were discharged in November 1975,
were discharged in violation of Section 8(a)(3). We
agree with these findings. The Administrative Law
Judge neglected to find, however, that the failure to
reinstate the employees when operations were there-
after resumed in January 1976 also violated Section
8(a)(3). As we are in agreement with the Administra-
tive Law Judge that the subsequent Patino and Cali-
' Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
°(l950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
241 NLRB No. 76
774
VICTOR PATINO AND NYDIA PATINO, ET AL.
fornia Sewing operations were alter egos of the Pa-
tinos d/b/a Jean Pier, we find that the failure to
reinstate the discharged employees constituted a fur-
ther violation of Section 8(a)(3). 5
ADDITIONAL REMEDY
In fashioning a remedy for the various violations
found, the Administrative Law Judge ordered that
the four individuals discharged on November 14,
1975, be reinstated with backpay; that the individuals
discharged in December 1975 be reinstated to the
jobs formerly held by them (discharging, if necessary,
present employees), but to the extent those dis-
charged in December 1975 exceeded in number the
jobs available, that they be placed on a preferential
hiring list; and that backpay also be awarded to the
individuals discharged in December 1975 until such
time as they are placed on a preferential hiring list.6
We find that the proposed remedy is inadequate to
cure Respondent's discriminatory conduct and to
make the employees whole. As stated, it is clear that
the actions taken in dicharging the employees on the
above-mentioned dates and in refusing to offer them
reinstatement when operations began anew, were all
violations of Section 8(a)(3) of the Act. Violations of
this nature are normally remedied by immediate of-
fers of reinstatement and awards of backpay from the
time of the discriminatory discharge until the offer of
reinstatement 7 unless it is shown that such a remedy
would endanger the continued viability of the opera-
tion. 8 Such has not been shown at the present time.
Accordingly, we shall order Respondent to offer all
employees discriminatorily discharged on November
14, 1975, and all employees discriminatorily termi-
nated on December 2 and 19, 1975, as a result of the
closing of the Jean Pier plant, immediate and full re-
instatement to their former jobs in its present operat-
ing enterprise or, if those jobs no longer exist, to sub-
stantially equivalent jobs, without prejudice to their
seniority or other rights and privileges previously en-
joyed, dismissing, if necessary, present employees of
I The Administrative Law Judge found that Respondent Victor Patino and
Nydia Patino, and Richard Erquiaga d/b/a California Sewing, were succes-
sors to and alter egos of Respondent Victor Patino and Nydia Patino d/b/a
Jean Pier. As we are in agreement with the finding of alter ego status we find
it unnecessary to decide whether the Patinos and Richard Erquiaga d/b/a
California Sewing were also successors to the Patinos d/b/a Jean Pier.
'The Administrative Law Judge inadvertently did not order that backpay
be awarded to those individuals discharged in December 1975, who were to
be reinstated under the terms of his recommended Order. While the General
Counsel excepted to this oversight, we find it unnecessary to consider this
error in view of our conclusions concerning the appropriateness of the rem-
edy herein.
7 Mason City Dressed Beef Inc., er al., 231 NLRB 735 (1977); The Bell
Company, Inc.. et a., 225 NLRB 474 (1976), enforcement denied 561 F.2d
1264 (7th Cir. 1977); Townhouse T. V. & Appliances, 213 NLRB 716 (1974),
enforcement denied in pertinent part 531 F.2d 826 (7th Cir. 1976); R & H
Masonry Supply, Inc., 238 NLRB 1044 (1978).
I R d H Masonry Supply, Inc. supra.
said Respondent, and make the aforesaid employees
whole for any loss of earnings they may have suffered
by reason of the discrimination against them in the
manner set forth in F W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon to be com-
puted in the manner prescribed in Florida Steel Cor-
poration, 231 NLRB 651 (1977). 9
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Vic-
tor Patino and Nydia Patino; Victor Patino and
Nydia Patino d/b/a Jean Pier; Richard Erquiaga d/
b/a California Sewing, Los Angeles, California, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discouraging membership in Los Angeles Joint
Board of the International Ladies' Garment Workers'
Union, AFL-CIO, or any other labor organization of
its employees, by unilaterally changing the terms and
conditions of employment of its employees; by dis-
charging or terminating employees or otherwise dis-
criminating in regard to the hire and tenure or terms
and conditions of employment of its employees be-
cause of their union affiliation or protected concerted
activities, except to the extent authorized by the pro-
viso to Section 8(a)(3) of the Act, as amended.
(b) Unilaterally changing the terms and conditions
of employment of its employees, threatening its em-
ployees with plant closure, offering employees an in-
surance plan or other benefits to induce them to with-
draw from the Union, and promising employees wage
increases if they withdraw from the Union.
(c) Failing and refusing to bargain collectively,
upon request, with the Union as the exclusive repre-
sentative of the employees in the appropriate unit
with respect to rates of pay, wages, hours of work,
and other terms and conditions of employment, in-
cluding the effects on the employees of the closing of
the Jean Pier plant at 1405 West Pico Boulevard, Los
Angeles, California, in which the employees were
working on December 2, 1975, and, if an understand-
ing is reached, embody such understanding in a
signed agreement.
(d) Failing and refusing to recall unlawfully termi-
nated employees to avoid bargaining with, and to dis-
courage membership in, Los Angeles Joint Board of
the International Ladies' Garment Workers' Union,
AFL-CIO.
(e) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of the
right to self-organization, to form labor organizations,
9 See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
775
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to join or assist Los Angeles Joint Board of the Inter-
national Ladies' Garment Workers' Union, AFL-
CIO, or any other labor organization of their own
choosing, and to engage in other protected concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, as guaranteed in Sec-
tion 7, or to refrain from any or all such activites,
except to the extent that such rights may be affected
by an agreement requiring membership in a labor or-
ganization as a condition of employment, as autho-
rized in the proviso to Section 8(a)(3) of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Manuela Nunez, Wilfrido Dominguez,
Paula Rios Lazaro, Lila de Castro, and any other em-
ployees who were discriminatorily discharged on No-
vember 14, 1975, and all employees who were dis-
criminatorily terminated on December 2 and 19,
1975, as a result of the closing of the Jean Pier plant,
immediate and full reinstatement to their former jobs
in its present operating enterprise or, if those jobs no
longer exist, to substantially equivalent jobs, without
prejudice to their seniority or other rights and privi-
leges previously enjoyed, dismissing, if necessary, pre-
sent employees of said Respondent, and make the
aforesaid named employees, as well as those dis-
charged on December 2 and 19, 1975, whole for any
loss of earnings they may have suffered by reason of
the discrimination against them, in the manner set
forth in the section of this decision entitled "Addi-
tional Remedy."
(b) Upon request, bargain collectively with the
Union as the exclusive representative of all employees
in the following appropriate unit with respect to rates
of pay, wages, hours, and other terms and conditions
of employment, including the effects upon the em-
ployees of the termination of the Jean Pier operation,
on December 2, 1975, and, if an understanding is
reached, embody such understanding in a signed
agreement:
All production and maintenance employees em-
ployed by Respondent at its facility located at
1405 West Pico Boulevard, Los Angeles, Califor-
nia; 315 West 38th Street, Los Angeles, Califor-
nia; or 3214 South Main St,'° Los Angeles, Cali-
fornia; excluding office clerical employees,
models, salesmen, professional employees,
watchmen, guards and supervisors as defined in
the Act.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
I0The record reveals, and the Administrative Law Judge found, that in
February 1977 Respondent moved its operation to 3214 South Main Street
where it was still operating at the time of the hearing.
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at the plant in Los Angeles, California,
presently operated under the name of Richard Erqui-
aga, doing business as California Sewing, and mail
copies of the attached notice marked "Appendix"" to
Los Angeles Joint Board of the International Ladies'
Garment Workers' Union, AFL-CIO, in Spanish and
English, to all employees previously employed by
Jean Pier, including those who were discharged on
November 14, 1975, as well as those who were termi-
nated as of December 2 and 19, 1975, as a result of
the closing of the plant. Copies of said notice, on
forms provided by the Regional Director for Region
31, after being signed by Respondent's duly autho-
rized representative, shall be mailed immediately
upon receipt thereof as directed herein. The notice to
be posted at the plant presently being operated by
Victor Patino and Nydia Patino, under the name of
Richard Erquiaga doing business as California Sew-
ing, shall be posted immediately upon receipt thereof
and shall be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
"I In the event that this Order is enforced by a judgment of a United States
court of appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Los
Angeles Joint Board of the International Ladies'
Garment Workers' Union, AFL-CIO, or any
other labor organization of our employees by
unilaterally changing the terms and conditions of
employment of our employees; by discharging or
terminating employees or otherwise discriminat-
ing in regard to the hire and tenure or terms and
conditions of employment of our employees be-
cause of their union affiliation or protected con-
certed activities, except to the extent authorized
776
VICTOR PATINO AND NYDIA PATINO, ET AL.
by the proviso to Section 8(a)(3) of the Act, as
amended.
WE WILL NOT unilaterally change the terms
and conditions of employment of our employees;
threaten our employees with plant closure; offer
them insurance plans or other benefits to induce
them to withdraw from the Union; or promise
employees wage increases if they withdraw from
the Union.
WE WILL NOT refuse to bargain collectively,
upon request, with the Union as exclusive repre-
sentative of all employees in the appropriate unit
with respect to rates of pay, wages, hours of
work and other terms and conditions of employ-
ment, including the effects on the employees of
the closing of the Jean Pier plant at 1405 West
Pico Boulevard, Los Angeles, California, in
which the employees were working on December
2, 1975, and, if an understanding is reached, em-
body such understanding in a signed agreement.
WE WILL NOT fail and refuse to recall unlaw-
fully terminated employees to avoid bargaining
with, and discourage membership in, Los Ange-
les Joint Board of the International Ladies' Gar-
ment Workers' Union, AFL-CIO.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of the right to self-organization, to form
labor organizations, to join or assist Los Angeles
Joint Board of the International Ladies' Gar-
ment Workers' Union, AFL-CIO, or any other
representative of their own choosing, and to en-
gage in other protected concerted activities for
the purpose of collective bargaining or other mu-
tual aid or protection, as guaranteed in Section 7,
or to refrain from engaging in any and all such
activities, except to the extent that such rights
may be effected by an agreement requiring mem-
bership in a labor organization as a condition of
employment, as authorized in the proviso to Sec-
tion 8(a)(3) of the Act.
WE WILL offer Manuela Nunez, Wilfrido Do-
minguez, Paula Rios Lazaro, and Lila de Castro,
and any other employees who may have been
discriminatorily discharged on November 14,
1975, and all employees in the appropriate unit
who were terminated on December 2, 1975 and
December 19, 1975, as a result of the closing of
the Jean Pier plant, immediate and full reinstate-
ment to their former jobs, in our present operat-
ing enterprise, or, if those jobs no longer exist, to
substantially equivalent jobs, without prejudice
to their seniority or other rights and privileges
previously enjoyed, discharging, if necessary,
present employees of said Respondent, and make
said employees whole for any loss of earnings
they may have suffered by reason of the discrimi-
nation against them with interest.
WE WILL, upon request, bargain collectively
with Los Angeles Joint Board of the Interna-
tional Ladies' Garment Worker's Union, AFL-
CIO, as the exclusive representative of all em-
ployees in the appropriate unit, with respect to
rates of pay, wages, hours of employment and
other terms and conditions of employment, and
reduce to writing any agreement reached as a
result of said bargaining. The appropriate unit
is:
All production and maintenance employees
employed by Respondent at its facility located
at 1405 West Pico Boulevard, Los Angeles,
California; 315 West 38th Street, Los Angeles,
California; or 3214 South Main Street, Los
Angeles, California; excluding office clerical
employees, models, salesmen, professional em-
ployees, watchmen, guards and supervisors as
defined in the Act.
All our employees are free to become and remain
or refrain from becoming or remaining members of
the above-named labor organization, except to the ex-
tent that such right may be affected by an agreement
authorized by the proviso to Section 8(a)(3) of the
Act.
VICTOR PATINO AND NYDIA PATINO D/B/A
JEAN PIER; VICTOR PATINO AND NYDIA PA-
TINO; RICHARD ERQUIAGA D/B/A CALIFOR-
NIA SEWING
DECISION
STATEMENT OF THE CASE
IRvING ROGOSIN, Administrative Law Judge: The con-
solidated complaint, hereinafter referred to as the com-
plaint, issued January 30, 1976, alleges that Respondent has
engaged in unfair labor practices within the meaning of
Section 8(aX1), (3), and (5) and Section 2(6) and (7) of the
National Labor Relations Act, as amended.
Specifically, the complaint alleges that Respondent (i) on
or about September 2, 1975, through Nydia Patino, threat-
ened employees with plant closure if they continued their
support of the Union; (2) in or about mid-September 1975,
at a meeting of its employees, Respondent, through Victor
Patino, submitted to them an insurance plan for the pur-
pose of undermining their support of the Union; (3) in or
about mid-October 1975, through Victor Patino, (a) prom-
ised an employee a wage increase if the employees did not
select the Union as their collective-bargaining representa-
tive, and (b) threatened an employee with plant closure if
the employees selected the Union as their collective-bar-
gaining representative; (4) on or about October 24, 1975,
through Nydia Patino, again threatened employees with
plant closure if they selected the Union as their collective-
777
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining representative; and (5) since on or about No-
vember 4, 1975, has refused to bargain collectively with the
Union as the exclusive representative of employees in an
appropriate unit by (a) on or about said date, without noti-
fication to or bargaining with the Union, unilaterally im-
posing new and more onerous conditions of employment on
its employees; and (b) on or about December 2, 1975, with-
out notification to or bargaining with the Union, unilater-
ally closing part of its plant, resulting in the discharge of
substantially all of its employees, and since said date failing
and refusing to reinstate said employees to their former po-
sitions; and (6) on or about November 14, 1975, discharged
named employees,' and has since failed and refused to rein-
state said employees to their former positions because they
failed to meet the new and onerous conditions of employ-
ment previously imposed by Respondent in retaliation for
their union affiliation, and to undermine and destroy the
Union's status as exclusive collective-bargaining represent-
ative of all unit employees.
Respondent's answer admits the procedural allegations
of the complaint and the allegations as to the appropriate
unit, the election procedure, and the issuance of the Re-
gional Director's Report on Objections, recommending cer-
tification of the Union; but it denies generally the remain-
ing allegations of the complaint.'
Hearing was held before the duly designated Administra-
tive Law Judge on April 13 and 14, 1976, at Los Angeles,
California. General Counsel and the Charging Party were
represented by counsel. Respondent appeared in pro per,
both partners participating in the hearing. All parties were
afforded full opportunity to be heard, to examine and cross-
examine witnesses, to introduce evidence relevant and ma-
terial to the issues, to argue orally, and to file briefs and
proposed findings of fact and conclusions of law. The par-
ties waived oral argument; but, pursuant to an extension of
time duly granted at Respondent's request, the General
Counsel filed a brief on June 11, 1976, 3 No proposed find-
ings of fact or conclusions of law have been filed by any of
the parties.
Upon the entire record in the case, the appearance and
Manuela Nunez, Wilfrido Dominquez, Paula Rios Lazaro, and Lila de
Castro.
2 Designations herein are as follows: General Counsel, unless otherwise
stated or required by the context, his representative at the hearing; Victor
Patino and Nydia Patino d/b/a Jean Pier, jointly, Respondent, the Em-
ployer or the Company; Los Angeles Joint Board of the International La-
dies' Garment Workers' Union, AFL-CIO, the Charging Party or the
Union; the National Labor Relations Act, as amended (61 Statute 136, Pub-
lic Law 86-257, 73 Statute 519, 29 U.S.C. 151, et seq.). the Act; the Na-
tional Labor Relations Board, the Board. The original charge in Case 31-
CA-5612 was filed on September 19 and served on September 26, 1975; the
original charge in Case 31-CA-5771 was filed on December 5 and served on
December 10, 1975, and the first amended charge was filed on January 2 and
served on January 28, 1976; the charge in Case 31-CA-5849 was filed on
January 26 and served on January 28, 1976. A settlement agreement entered
into on November 4, 1975, in Case 31-CA-5612 was vacated and set aside
by the Regional Director on about January 30, 1976.
'On May 7, 1976, subsequent to the closing of the hearing and without
otherwise entering a formal appearance, Robert S. Michaels, Esq., of the law
firm of Michaels and Sobel, notified the Administrative Law Judge that the
firm had been retained to represent Respondent, and, for reasons stated.
requested I month's extension of time in which to file briefs. The request was
granted, and the time for filing briefs by all parties was extended to June I I,
1976. No briefs, however, have been received from Respondent or the
Union.
demeanor of the witnesses, and the General Counsel's brief
which has been duly considered, I hereby make the follow-
ing:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
It was stipulated at the hearing that, at all times material
herein, Victor Patino and Nydia Patino, copartners doing
business as Jean Pier, with an office and principal place of
business located in Los Angeles, California, have been en-
gaged in the manufacture of clothing. During the past cal-
endar year, in the course of its business, Respondent sold
services valued in excess of $50,000 to firms located in the
State of California, each of which in turn sold goods and
services valued in excess of $50,000 directly to customers
located outside the State of California.
Upon the basis of the foregoing and the entire record,
including the stipulation of the parties, it is hereby found
that at all times material herein, Respondent has been an
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Los Angeles Joint Board of the International Ladies'
Garment Workers' Union, AFL-CIO, is, and at all times
material herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
1. Whether Respondent violated Section 8(a)(l) of the
Act by (a) threatening employees with plant closure if they
continued to support the Union; (b) submitting an insur-
ance plan to its employees for the purpose of undermining
their support of the Union; and (c) promising an employee
a wage increase if the employees failed to designate the
Union; and (c) promising an employee a wage increases if
the employees failed to designate the Union as their collec-
tive-bargaining representative, and threatening said em-
ployee with plant closure if the employees selected the
Union.
2. Whether Respondent violated Section 8(a)(l), (3), and
(5) by unilaterally, and without prior notification to or bar-
gaining with the Union, imposing new and more onerous
conditions of employment because its employees had se-
lected the Union as their collective-bargaining representa-
tive.
3. Whether Respondent violated Section 8(a)(1) and (3)
by discharging employees because they had failed to meet
the new and more onerous conditions of employment.
4. Whether Respondent violated Section 8(a)( I), (3), and
(5) of the Act by unilaterally and without prior notification
to or bargaining with the Union, closing its plant, thereby
resulting in the discharge of substantially all its employees
because they had supported the Union or because of Re-
spondent's determination to undermine the Union.
778
VICTOR PATINO AND NYDIA PATINO. ET AL.
B. The Organizational Activitv
Victor H. Patino and his wife, Nydia Patino. as equal
partners, first engaged in business as sewing contractors for
ladies' sportswear manufacturers in mid-May 1971. Mrs.
Patino was in charge of production, while her husband was
responsible for all the administrative and financial duties in
connection with the operation of the Company. At its in-
ception, the business was conducted at 2301 South Grand
Avenue in Los Angeles but was later moved to larger quar-
ters at 1405 West Pico Boulevard, Los Angeles. Respon-
dent's complement of employees including production em-
ployees declined from a high of about 189. in August or
September 1975, to a low of 73 or 74 on December 2, 1975,
when Respondent shut down its plant. Production employ-
ees were paid at piecework rates.
In May 1975, dissatisfaction with working conditions
arose among the employees. During this period, a Spanish
language pamphlet sponsored by "Comite Obrero Jean
Piere" (sic) (workers, committee Jean Piere), not otherwise
identified in the record, was circulated among the employ-
ees. The pamphlet was extremely critical of management
and protested working conditions at the plant.' Early in
August the Union instituted an organizational campaign
and distributed union leaflets and authorization cards. A
number of employees, including Manuela Nunez, Esther
Diaz, and Wilfrido Dominguez, alleged discriminatees.
signed cards.
In or about mid-August, Nydia Patino discovered a copy
of the Spanish language leaflet on her desk and decided to
call a meeting of the employees. On September 2, after the
employees returned from lunch, Mrs. Patino held a meeting
on working time in the vicinity of the timeclock. The meet-
ing was attended by all the employees, as well as by Victor
Patino, who was in the back of the room. Addressing the
employees in Spanish, Mrs. Patino remarked that it had
been some time since she had found it necessary to hold a
meeting because the employees had been working in har-
mony with their Employer. Since the union leaflets had be-
gun to appear, she told them, she had been having prob-
lems. She made it clear that she regarded statements in the
leaflets disparaging of her husband, herself, and the firm,
and that she intended to defend the reputation and integrity
of the owners. She challenged the claim that employees
would benefit from the Union and told them that they
would be better off by remaining loyal to Respondent be-
cause, by doing so, they would have good jobs. Finally, she
told them that if they succeeded in bringing in the Union.
she would shut down the factory, close out her banking
account, and solve her problems by opening another fac-
tory with new employees.5
On about September 12, while the employees were at
4 Aside from the name of the committee, there is no other indication of the
sponsorship of this leaflet. Since the record indicates that the union organiza-
tional activity did not commence until August, in the absence of any evi-
dence linking this leaflet with the Union, it is presumed that the Union was
not involved in the distribution of this leaflet.
These findings are based upon a synthesis of the credible, and mutually
corroborative testimony of Manuela Nunez, Esther Diaz, and Wilfrido Do-
minguez. The testimony of the Patinos. who acted as their own counsel and
were not too fluent in English, was generally rambling, discursive, and self-
serving; their denials of the intimidatory statements attributed to them were
unconvincing.
lunch in the factory dining room, Mr. Patino called for at-
tention and announced that the Company was making
available an insurance program for employees who had
been working more than 3 months. He explained the fea-
tures of the program and distributed brochures describing
the coverage. Mrs. Patino then spoke to each of the eligible
employees at their machines.
Although Mrs. Patino testified that Respondent had been
considering an insurance plan for its employees for the past
2 years, it is evident that it took no action to implement
such a program until after it had learned of the employees'
organizational activities. According to her, Respondent
submitted this proposal to the employees notwithstanding
that Respondent was not then in "really good" financial
condition. The insurance plan was not subsequently imple-
mented, ostensibly because the premiums were too high in
relation to the proposed benefits.
In about mid-October, some 3 weeks before the election,
Mr. Patino spoke to Hilario Gomez Guzman in the plant
dining room. Patino arrived as Guzman was cleaning the
floor and complimented him upon the appearance of the
area. Guzman then asked Patino whether he could have a
raise. Patino told him that he could not grant any wage
increases because "the Union was coming in. but if the
Union didn't come in," he would grant Guzman and an-
other employee a raise. Patino then remarked that if the
Union did come in everything "would go to hell," and he
would shut down the factory and send all the employees
home. 6
About I week before the election, while Guzman was
performing his cleaning chores, Mrs. Patino told him, in the
presence of Forelady Guadalupe and employee Mercedes,
that the Union was attempting to come into the plant and
that one of Respondent's customers who supplied the Com-
pany with work had stated that if the Union came in, the
customer would not give the Company any work because
the garments would require a union label, and that the
Company wanted nothing to do with the Union. Mrs. Pati-
no added that if that occurred, she would shut the factory
down and remove the machines, leaving the employees
without work.'
In October Victor and Nydia Patino started another gar-
ment contracting business at the Company's former loca-
tion at 2301 Grand Avenue, Los Angeles, under the trade
name of "Puchy." This was done, according to Respondent,
in an effort to reduce overhead at Jean Pier. The Patinos
installed their 20-year-old daughter, Nidia, who had just
graduated from designing school, as owner and operator,
under a fictitious name business certificate. According to
Mrs. Patino, their daughter used some of her own funds,
which she had accumulated from her salary of $160 a week
while working after school and part time for Jean Pier over
a period of 5 years. Under an oral arrangement, Respon-
dent stated that it sublet the premises to Puchy at a rental
of $700 or $800 per month, which also covered the use of 25
sewing machines owned by Respondent and supplied to
Puchy. Mrs. Patino also secured work for Puchy from var-
ious manufacturers who had been supplying Jean Pier. The
I Guzman's testimony regarding this incident is uncontroverted.
Mrs. Patino did not deny the remarks attributed to her on this occasion.
779
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Puchy operation was basically the same as that of Jean
Pier, except that Puchy did not press or finish garments, an
operation which Jean Pier performed for Puchy. The Pa-
tinos' minor son also worked at Puchy's operating a van to
transport garments between the Puchy plant and the Jean
Pier plant. The garments were pressed and finished at the
Jean Pier plant, and then shipped to the manufacturer.
The Puchy operation was eventually discontinued on De-
cember 4, 2 days after Respondent closed its plant at West
Pico Boulevard.
Pursuant to a Stipulation for Certification Upon Consent
Election, an election was held on November 3 among the
employees in an appropriate unit.' Manuela Nunez and
Wilfrido Dominguez, both alleged to have been discrimina-
torily discharged herein, acted as union observers in the
election.
The following morning, November 4, at or about 8:15
a.m., Mrs. Patino called a meeting of all the employees in
the plant dining room, and announced that since the Com-
pany was now a "union company," it was establishing rules
of its own. Thereafter, she stated, all employees would be
required to be seated at their machines at 7:30 a.m. sharp,
ready to begin work at the starting signal. She told the
employees that they were not to engage in conversation
while they were working at their machines, that they would
not be permitted to use the machines to work on their per-
sonal clothes, and that no one would be permitted to re-
main at the machines during lunch periods. Finally, she
notified the employees that they would have 2 weeks in
which to demonstrate that they could earn the minimum
wage based on their piecework production, and that all em-
ployees failing to achieve such production within 2 weeks
would be discharged.
Two days later Ms. Patino showed Lazaro the latter's
production record which indicated that Lazaro had not
earned her minimum wage rate. Mrs. Patino told her that if
she did not achieve the minimum rate in 2 days there would
be nothing she could do for her. On Friday, the regular
payday, Lazaro did not receive her paycheck but was sum-
moned to the office. When she called there later that after-
noon, Mr. Patino gave her her paycheck and said that there
was no more work for her. He told her to return on Mon-
day for her final paycheck.
The following Monday Lazaro went to the plant and
asked Mrs. Patino why she was being terminated. Mrs. Pa-
tino told her that she had allowed her 2 weeks to demon-
strate that she could earn her minimum wages, but that she
(Lazaro) had failed to do so. Lazaro argued that she had
been working for the company for I year, without earning
the minimum wage scale, and wanted to know why she had
not been discharged during that period. Mrs. Patino re-
'The description of the unit is as follows:
Included: All production and maintenance employees employed by the
Employer at its facility located at 1405 W. Pico Blvd., Los Angeles,
California.
Excluded: Office clerical employees, models, salesmen, professional em-
ployees, watchmen, guards and supervisors as defined in the Act.
According to the tally of ballots, 68 employees voted for and 15 voted
against the Petitioner, there were 9 challenged ballots, an insufficient number
to affect the results. On March 16, 1976, the Board issued its decision and
Certification of Representative (Case 31-RC-3297), adopting the Regional
Director's report, and certifying the Union as the exclusive representative of
the employees in the appropriate unit.
plied, according to Lazaro, that since the employees had
voted for the Union, it was up to the Union to find work for
her.
On about November 14 Respondent discharged Nunez,
Dominguez, Lazaro, Castro, and other employees, allegedly
because they had failed to earn the minimum wage during
the newly established 2-week probationary period.
On November 28 Mrs. Patino notified the employees that
she was unable to meet the payroll that day. On December
I Respondent shipped work to some of its manufacturers
for which it expected payment the following day. Conse-
quently, Mrs. Patino notified the employees that they would
receive their paychecks on Tuesday.
The next morning, December 2, representatives of the
Department of Labor for the State of California appeared
at the plant and notified Mrs. Patino that her employees
had reported that the Company had failed to pay their
wages for the preceding week. Asked when the employees
could expect to be paid, Mrs. Patino told the officials that
she was expecting funds with which to pay her employees
that same afternoon. According to her, she had discussed
the closing of the plant with her husband the previous Fri-
day, when they found they could not meet the payroll, but
they had reached no decision. After the visit from the De-
partment of Labor representatives, it was decided to close
the plant that day, and she notified the employees of the
Company's intention. Mrs. Patino conceded that she as-
sumed that the employees had reported to the Union that
they had not received their paychecks on November 28,
and that in turn the Union had relayed this information to
the Department of Labor. Later the same day, Victor Pati-
no obtained funds from the manufacturer in payment of the
shipment delivered the day before.
On December 1, 1975, Respondent was served by its
landlord with a notice to quit for nonpayment of rent for
the months of November and December 1975, in the
amount of $1,800 a month, or a total of $3,600.
On December 2 about 4:30 in the afternoon, Mrs. Patino
distributed the paychecks and announced that the Com-
pany was closing down completely as of that date. Mrs.
Patino chided the employees for having brought down what
had been a family, and she stated that the employees had
wanted to see her "defeated" and that they could now see
her predicament. Finally, she told them that the Company
was closing down completely and would not open the next
day. She closed by sarcastically wishing the employees a
merry Christmas.
The Company continued operations until December 19,
with some seven employees, who had volunteered to help
finish the uncompleted work on hand. Although Respon-
dent contends that these employees agreed to work without
compensation, at the direction of the Department of Labor
Respondent paid each of them at an hourly rate. In addi-
tion, Respondent subcontracted a portion of the work that
remained on hand on December 2 to other garment con-
tractors.
By letter dated December 3, 1975, Respondent's labor
consultant notified the Union for the first time that the
Company was permanently discontinuing all business op-
erations as of that date. The letter advised, "The manage-
ment has determined that it is no longer economically feasi-
780
VICTOR PATINO AND NYDIA PATINO, ET AL.
ble to remain open. The shutdown of operations will be
complete."
At the time of the hearing, Mr. and Mrs. Patino were
employed by a firm known as Budget Fashion; he, as fac-
tory manager at a salary of $300 per week, his wife, as
forelady at $250 per week, plus a commission of 3 percent
on gross sales payable to them jointly. Their son was em-
ployed as driver of a van, at $110 per week. As part of the
consideration for the compensation paid to Mr. and Mrs.
Patino, they have leased the equipment formerly used by
them at Jean Pier consisting of 151 sewing machines; a
number of pressing machines, with I boiler attached; and
the van.9 According to Victor Patino, Budget Fashion is
owned by an outsider, Eddie Radow, and no member of
Patino's family has a financial interest in that business. Pa-
tino admitted that in his capacity as factory manager he
had hired some of the employees who had previously
worked for Jean Pier.
C. Concluding Findings
1. The 8(a)(1) allegations
The record establishes that at the meeting of employees
on September 2, Nydia Patino threatened to close the plant,
remove the machinery and equipment, and install the same
at a different location; the threat was, in fact, later carried
out through the subterfuge of setting up their daughter in
business at the Puchy establishment. Contrary to Victor Pa-
tino's testimony that the September 2 meeting was called
solely for the purpose of discussing production and Mrs.
Patino's initial denial that she was aware of any previous
organizational activity. she left no doubt that she called the
meeting in order to reply to the criticism complaints, and
what she regarded as disparaging references to her and to
her husband in the leaflet disseminated by the workers'
committee of employees.' 0
It is undisputed that in or about mid-September, after the
organizational activity was well under way, Respondent,
through Victor Patino, for the first time proposed an insur-
ance plan to the employees despite the fact that Respon-
dent claimed that business conditions were "not really
good." On the basis of Respondent's opposition to the or-
ganizational activities of its employees, and the timing of
Respondent's offer of the insurance program, it is found
that the proposal was made to the employees in order to
persuade them to renounce the Union as their bargaining
agent.
It is further found that in about mid-October Victor Pati-
no told employee Guzman, in response to a request for a
wage increase, that the Company could not grant any wage
increases because the Union was coming into the plant, but
if the employees did not select the Union, he and another
employee would receive a wage increase. It is further found
According to Respondent, approximately 50 of these sewing machines
had previously been sold. Some of the remaining sewing machines were still
not for, and others had been pledged as security for the unpaid balance.
1' Mrs. Patino apparently made no distinction between this pamphlet and
literature distributed by the Union, although it is evident from the context of
her remarks that she was probably referring to the leaflet distributed by the
committee.
that during this conversation Patino threatened that if the
Union came in he would shut down the factory.
On October 24, Nydia Patino stated to employees that if
they selected the Union as their bargaining agent, the plant
would be closed, and that a manufacturer which supplied
the Company with work would cease doing business with it.
Even if this were true (Respondent offered no corroboration
in support of Mrs. Patino's statement), this would furnish
no justification for denying the employees the right to self-
organization guaranteed by the Act. In view of Respon-
dent's overt threats on September 2, in mid-October, and on
the occasion in question to close the plant if the employees
selected the Union as their representative and Mrs. Patino's
statement that one of the Company's accounts had indi-
cated that it would refuse to supply the Company with
work if the employees designated the Union, cannot be re-
garded as a prediction of the effects of unionization on the
Company." Moreover, Mrs. Patino did not assert that the
possible loss of business from the manufacturer would re-
sult in the closing of the plant but merely injected this as a
make-weight argument to dissuade the employees from se-
lecting the Union as their bargaining agent.
Therefore, it is found that by threatening employees with
plant closure because they had engaged in union or con-
certed activities; by promising employee Guzman a wage
increase if the Union were not selected as bargaining agent;
and by offering employees an insurance plan as an induce-
ment to renounce the Union, Respondent has interfered
with, restrained, and coerced employees in the exercise of
rights guaranteed in Section 7, thereby engaging in unfair
labor practices within the meaning of Section 8(aX I).
2. The 8(a)(3) Violations
a. The rule changes
It is undisputed that on November 4, the day after the
Board-conducted election, Respondent changed working
conditions of its production employees by requiring them to
achieve a new standard of production. Mrs. Patino notified
the employees that they would thereafter be required to
produce a sufficient number of units on a piecework basis to
earn the minimum hourly wage rate. There was no showing
that Respondent had established any production standards
prior to the election, and employee's compensation was ap-
parently based on the number of units produced at the
piecework rate without regard to whether the employee ac-
tually earned the equivalent of the minimum hourly wage.
Understandably, the earnings of employees depended not
only upon their own efficiency but also upon such factors as
the type of unit on which they were working and the piece-
work rate for the operation involved. The volume of pro-
duction and consequent earnings varied among employees,
and from week to week with given employees. Although
Respondent maintained that employees who did not suc-
ceed in earning their minimum wage by their piecework
'' "In such a case, however, the prediction must be carefully phrased on
the basis of objective fact to convey an employer's belief as to demonstrably
probable consequences beyond his control or to convey a management deci-
sion already arrived at to close the plant in case of unionization." N.LR.B. v.
Gissel Packing Co, Inc. 395 U.S. 575. 618 (1969).
781
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production had been discharged prior to the election, the
record discloses that there was no such policy before the
election, and, in any event, that no such policy was uni-
formly enforced. Thus, at least three employees 2 who were
subsequently discharged, allegedly for failure to earn their
minimum hourly wage, testified that prior to the advent of
the Union, they consistently failed to produce sufficient
quantities at piecework rates to earn the equivalent of the
minimum hourly wage. Yet they were not criticized, much
less discharged. Moreover, there was no showing that these
three employees had ever been previously warned that if
they did not produce enough piecework to earn the mini-
mum wage they would be discharged.
The record as a whole warrants the conclusion that a
substantial number of employees did not produce enough
piecework to satisfy the production requirement announced
on November 4. Dominguez' testimony to this effect is par-
tially corroborated by Respondent's payroll records. Ac-
cording to the record for the payroll period ending Novem-
ber 22, of 81 production employees 54 earned less than $84
a week, the minimum wages for a 40-hour week, at the
minimum hourly rate of $2.10. Although these records do
not disclose the number of hours actually worked by these
employees, Mrs. Patino's only explanation was that the em-
ployees who received paychecks of less than $84 a week
must have worked less than 40 hours. Elsewhere, however,
she testified that with few exceptions, all of the production
employees worked a 40-hour week in the latter part of No-
vember. Nevertheless, despite Mrs. Patino's contention that
employees were paid the minimum wage regardless of
whether they produced at that level, the record establishes
that their compensation was based wholly on their actual
production. In fact, the record discloses that a majority of
the employees consistently failed to earn the minimum
hourly wage based on their rates of production. Neverthe-
less, Respondent was content either to pay them the mini-
mum wage, irrespective of whether their production war-
ranted it, or to pay them wages based upon their actual
production on a piecework basis until the employees mani-
fested their determination to select a bargaining agent to
represent them.
Based upon the foregoing, and the timing of the change
in policy the day after the election, it is found that Respon-
dent adopted new production standards as a means of re-
taliating against the employees because of their selection of
the Union.
b. The change in starting time and rules prohibiting talking
Respondent contends that it has always maintained rules
requiring production employees to be seated at their ma-
chines at precisely 7:30 a.m. and prohibiting them from
engaging in conversation with fellow employees during
working time. If these rules were actually in effect, it is
obvious that either the employees were unaware of the
rules, or that the rules had never been strictly enforced. In
any case, it is clear that Mrs. Patino notified the employees
that they would thereafter be required to adhere strictly to
the rules.
2 Lazaro, Nunez, and Dominguez.
Prior to the election the regular working hours were 7:30
a.m. to 4 p.m. Employees were permitted, however, to start
earlier and work later, if they so desired, thereby enhancing
their earnings. Mrs. Patino conceded that prior to the elec-
tion this policy had been flexible. Some employees, like
Lazaro, for example, were permitted to start work as early
as 6:30 or 6:45 a.m. or to work as late as 5:30 or 6 p.m.
Whatever may have been Respondent's purpose in making
this announcement, it is obvious that it constituted a unilat-
eral change in working conditions prompted by the employ-
ees' selection of the Union as bargaining agent.
The record further establishes that prior to the election
employees were permitted to use the sewing machines to
work on their personal clothing during nonworking time.
Mrs. Patino's announcement the day after the election that
this privilege was being discontinued, in the absence of any
reasonable justification for the change in policy, warrants a
finding that the change was made in retaliation for the se-
lection of the Union as bargaining agent. It is undisputed
that the changes in working conditions were made without
prior notification to the Union, and prior to an opportunity
to negotiate concerning the changes, despite the fact that
the Union had won the election the day before.
Therefore, it is, found that by unilaterally changing the
terms and conditions of employment of its employees fol-
lowing the Board election, without prior notification to or
opportunity to negotiate with the Union'" which was later
certified as exclusive bargaining agent, Respondent has
failed and refused to bargain collectively with the Union,
thereby engaging in unfair labor practices within the mean-
ing of Section 8(a)(5); Respondent has interfered with, re-
strained, and coerced employees in the exercise of rights
guaranteed in Section 7, thereby engaging in unfair labor
practices within the meaning of Section 8(aXl) of the Act.
It is further found that by said conduct, Respondent has
discriminated in regard to the hire and tenure of employ-
ment of its employees to discourage membership in the
Union, thereby engaging in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
c. The November 14 discharges
Respondent contends that it discharged the four employ-
ees'4 because they had failed to produce their quota of
piecework units to earn the minimum wage. It may be
noted in passing that when Mrs. Patino notified the employ-
ees of the production requirement, she told them that they
would have 2 weeks in which to demonstrate they could
achieve this quota. Instead of allowing them the 2 weeks as
she had stated, she decided to terminate them before the
expiration of the probationary period. In any event, these
employees were discharged because they had failed to sat-
isfy a newly imposed condition of employment which, it has
been found, violated Section 8(a)(l), (3), and (5) of the Act.
Two of these employees, Nunez and Dominguez, had acted
as union observers at the election. In Lazaro's case, Mrs.
Patino told her at the time of her discharge that since she
had supported the Union, the Union could find work for
13 M S. P Industries, Inc., d/b/a The Larirner Press, 222 NLRB 220
(1976).
'1 Nunez. Dominguez. Lazaro, and de Castro.
782
VICTOR PATINO AND NYDIA PATINO, ET AL.
her. The record further establishes that, as shown by the
payroll for the week ending November 22 (the week after
these terminations), a substantial number of employees who
had failed to produce sufficient piecework to earn the mini-
mum wage were retained in Respondent's employ.
Therefore, it is found that by discharging Nunez, Domin-
guez, Lazaro, de Castro, and other employees on November
14, ostensibly because of their failure to produce enough
piecework to earn the minimum wage but in reality because
of their union membership and adherence, Respondent has
discriminated in regard to hire and tenure of employment
to discourage membership in the Union, thereby engaging
in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
d. The plant closure and consequent termination of
employees
Respondent contends that its plant closure on December
2 was dictated by its financial condition which culminated
in its inability to meet the payroll on November 28. Re-
spondent's decision to close the plant, however, was not
actually made until after it was notified by the Department
of Labor that the employees had complained that Respon-
dent had failed to pay their wages the previous Friday.
Obviously, Mrs. Patino held the employees and the Union
responsible for the complaint to the Department of Labor.
Obviously, Respondent's inability to meet its payroll
amounted to only a temporary exigency, inasmuch as it
succeeded in obtaining the necessary funds from its custom-
ers within a matter of a day. It was not shown whether
Respondent had ever failed to meet its payroll in the past,
but it seems wholly improbable that it would have based a
decision to close its business on its inability to meet its pay-
roll on this occasion, particularly since the Employer was
fully aware that it would receive sufficient funds within 24
hours to meet its payroll. The fact that Respondent had
been served in the meantime with a notice to quit for non-
payment of 2 months' rent does not establish that its finan-
cial condition did not warrant that it continue in business.
If Respondent had decided to close its plant in order to
frustrate its employees' desire for self-organization, it would
have suited its purpose to default in payment of rent. Re-
spondent offered no profit and loss statements, income tax
statements, or other financial data which would have shed
light on its financial condition as of the time it decided to
close down its operation. Evidence subpenaed by the Gen-
eral Counsel, showing Respondent's gross revenues for the
period June to October 1975,1' compared favorably with
15 Gross Revenues According to Respondent's Ledger.'
1975 1974
December 1-19 $14,000 December $33,000
November 45,000 November 48,000
October 77.000 October 61,000
September 70,000 September 54,000
August 68,000 August 65,000
July 65,000 July 56,000
June 52,000 June 41.000
May 45.000 May 71,000
April 48,000 April 46.000
March 38,000 March 41,000
February 44,000 February 31,000
Januar 34,000 January 37,000
600.000 584,000
'All figures have been rounded off to the nearest $1,.000. Judging b)
those for the corresponding period of the preceding year.
Gross revenues for the month of October 1975 were, in fact,
higher than for any other month in either year. Moreover, it
is significant that the Puchy operation, in which Mr. and
Mrs. Patino were obviously financially involved (if, indeed,
they were not the actual owners), which had commenced in
October 1975, involved work which would otherwise have
been performed by Jean Pier and was diverted at Mrs. Pa-
tino's request to the Puchy operation. Thus, any contention
that Respondent's decision to close the Jean Pier operation
resulted from a decline in business is wholly unconvincing.
Rather the evidence tends to show that, in a determination
to avoid dealing with the Union as the exclusive represent-
ative of its employees, Respondent closed its business and
terminated all its employees. It is noted that, notwithstand-
ing that Respondent shut down its operation on December
2, it nevertheless continued (albeit with a skeleton crew in-
cluding the Patinos, their son, and their daughter), until
December 19, retaining only such employees as it desired,
and subcontracting work to other garment subcontractors
in order to complete the unfinished work on hand.
It is well established that an employer may shut down his
entire business, even if prompted by a desire to avoid
unionism, without committing an unfair labor practice.6
The General Counsel contends, however, that Respondent
did not actually shut down operations on December 2, that
its action on that date merely constituted a partial shut-
down, and that it actually continued operations until De-
cember 19, employing a skeleton crew of what it regarded
as loyal employees and subcontracting the remaining work.
This is not the type of partial closure which the Court envis-
aged when it concluded that a partial closing "motivated by
a purpose to chill unionism in . . . remaining plants of the
single employer may constitute an unfair labor practice un-
der Section 8(a)(3).1' The record here fairly establishes that
for all practical purposes the business of Respondent was
shut down on December 2, remaining in operation solely
for the purpose of completing work on hand. In retaining
the small group of employees, however, who according to
Respondent volunteered to assist in the completion of the
work on hand without compensation, it is evident that the
selection of these employees was based upon their pre-
sumed loyalty to their Employer. To this extent, at least, it
appears that the Employer selected for termination union
supporters while retaining those who were presumptively
loyal to their employer. Thus, it is apparent that Respon-
dent's selection of the employees whom it retained to com-
plete the work was based on union considerations. More-
over, it is clear from the timing of Respondent's decision to
shut down its operations and terminate the employees that
it did, in whole or material part not only because they had
supported the Union but also because of their concerted
these figures, Respondent grossed more in 1975 than in 1974. Obviously.
the financial condition of Respondent's business could not be deter-
mined on the basis of gross revenues alone, but Respondent furmshed
no profit and loss statements or other financial data which could aid in
determining its financial condition as of December 2, 1975.
16 Textile Workers Union of .merica . Darlington Manufacturing Co., 380
.S 263. 273 1965).
1" Id at 27 5
783
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity in reporting to the Department of Labor Respon-
dent's failure to make timely payment of their wages. Un-
der all the circumstances, the termination of the vast major-
ity of its employees on December 2, even though a
consequence of Respondent's shutdown, constituted dis-
crimination in regard to hire and tenure of employment to
discourage membership in the Union in violation of Section
8(a)(3) of the Act.
It is axiomatic that an employer is required to notify the
collective-bargaining representative of its employees of a
decision to shut down its operations in order that the Union
may bargain about the effects of the closing upon the em-
ployees.
It is undisputed that Respondent did not notify the
Union until December 3, 1975, the day after it shut down
its operation, of its decision to close the plant and did not
afford the Union an opportunity to bargain about the effect
of the closing upon its employees. By failing to afford the
Union an opportunity to bargain about the selection of em-
ployees for termination and other aspects of its decision,
Respondent deprived unit employees of an opportunity to
be considered for the work performed by the few employees
who were retained, as well as the subcontractors, between
December 2 and December 19, the date Respondent actu-
ally ceased operation of the plant. Respondent was under a
duty to bargain concerning such matters as "severance pay,
vacation pay, seniority and pensions, among others, which
are necessarily of particular importance to the employ-
ees."'8
Therefore, it is found that by failing to notify the Union
of its decision to shut down its operations and to afford the
Union an opportunity to bargain about the effects of the
shutdown upon the employees, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(5)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial 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 Respondent has engaged in unfair la-
bor practices within the meaning of Section 8(a)(l), (3), and
(5) of the Act, it will be recommended that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
It has been found that Respondent discriminatorily dis-
charged Manuela Nunez, Wilfrido Dominguez, Paula Rios
Lazaro, Lila de Castro, and other employees, on November
14, 1975, because of their union or concerted activity to
discourage membership in the Union, in violation of section
8(a)(3) of the Act. Since Respondent has permanently shut
down its operations, it will not be recommended that Re-
I Interstate Tool Co., Inc., 177 NLRB 686 (1969).
spondent offer these employees immediate and full rein-
statement to their former positions. It will, however, be rec-
ommended that Respondent make said employees whole
for any loss of pay they may have suffered as a result of the
discrimination against them for the period from November
14, 1975, to December 19, 1975, when Respondent ceased
doing business.
In consequence of Respondent's unlawful failure to bar-
gain with the Union about the effects of its shutdown, the
displaced employees have been denied an opportunity to
bargain through their collective-bargaining representative
at a time when Respondent was still in need of their services
and a measure of balanced bargaining power existed. A
mere bargaining order would not furnish an adequate rem-
edy for the unfair labor practices which Respondent has
committed. In order to effectuate the policies of the Act, it
will be recommended that Respondent bargain collectively
with the Union concerning the effects of the shutdown on
its employees, accompanied by a limited backpay order de-
signed both to make whole the employees for losses suffered
as the result of the violation and to recreate in some practi-
cal manner a situation in which the parties' bargaining po-
sition may be restored.
It will, therefore, be recommended that Respondent
make Manuela Nunez, Wilfrido Dominguez, Paula Rios
Lazaro, and Lila de Castro whole for any loss of pay they
may have suffered as a result of the discrimination against
them from the date of such discrimination until the date of
the unconditional offer of reinstatement to said employees,
less their net earnings during such period, with backpay
computed in accordance with the Board's customary for-
mula, plus interest at 6 percent per annum.
It will, therefore, be recommended that Respondent pay
the terminated employees, including those who were unlaw-
fully terminated on November 14, 1975, backpay at the rate
of their normal wages while they were last in Respondent's
employ from 5 days after the date of this Decision and
recommended Order until the occurrence of the earliest of
the following conditions: (1) The date Respondent bargains
to agreement with the Union on those subjects pertaining to
the effects of the plant shutdown on its employees; (2) a
bona fide impasse in bargaining; (3) the failure of the
Union to request bargaining within 5 days of this Decision
or to commence negotiations within 5 days of Respondent's
notice of its desire to bargain with the Union; or (4) the
subsequent failure of the Union to bargain in good faith. In
no event shall the sum paid to any of these employees ex-
ceed the amount such employee would have earned as
wages from December 2, 1975, the date on which Respon-
dent terminated its operations, to the date such employee
has secured substantially equivalent employment elsewhere
or the date on which Respondent shall have offered to bar-
gain, whichever occurs sooner. However, in no event shall
this sum be less than these employees would have earned
for a 2-week period at the rate of their normal wages when
last in Respondent's employ.'
It will further be recommended that Respondent place all
terminated employees, including those who were discrimi-
natorily discharged on November 14, 1975, on a preferen-
'1 Interstate Tool Co., Inc., supra; Transmarine Navigation Corporation and
its Subsidiary, International Terminals, Inc., 170 NLRB 389 (1968).
784
VICTOR PATINO AND NYDIA PATINO, ET AL.
tial hiring list in the event Respondent resumes operations
and at that time offer reinstatement to those employees, and
mail copies of the notice attached hereto, in Spanish and in
English, to said employees.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, make the following:
CONCLUSIONS OF LAW
1. Victor Patino and Nydia Patino, copartners doing
business as Jean Pier, were, at all times material herein, an
employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Los Angeles Joint Board of the International Ladies'
Garment Workers' Union, AFL-CIO, is, and at all times
material herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees employed
by the Employer at its facility located at 1405 West Pico
Boulevard, Los Angeles, California, excluding office clerical
employees, models, salesmen, professional employees,
watchmen, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. At all times material, since November 3, 1975, the
Union has been, and now is, the certified and exclusive
representative of all employees in the aforesaid appropriate
unit for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By discharging Manuela Nunez, Wilfrido Dominguez.
Paula Rios Lazaro, Lila de Castro, and other employees on
November 14, 1975, because of their union or other pro-
tected concerted activities, to discourage membership in the
Union, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
6. By refusing, on or about November 4. and at all times
thereafter, to bargain collectively with the above-named
Union as the exclusive representative of all the employees
of Respondent in the appropriate unit, more particularly by
refusing to bargain with the Union concerning the changes
in working conditions; by unilaterally offering employees
an insurance plan without first notifying the Union and
affording it an opportunity to bargain: and by failing and
refusing to bargain with the Union concerning the effects of
the plant closing, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(l) and (5) of
the Act.
7. By the aforesaid refusal to bargain, by threatening
employees with plant closure, by promising employees a
wage increase to renounce the Union, and by unilaterally
offering employees an insurance plan for the purpose of
undermining their union support, Respondent has inter-
fered with. restrained, and coerced employees in the exer-
cise of the rights guaranteed in Section 7. thereby engaging
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
IRVING ROGOSIN, Administrative Law Judge: On Sep-
tember 20, 1976, the Decision of this Administrative Law
Judge was issued in consolidated Cases 31-CA-5612, 31-
CA-5771, and 31-CA-5849, finding that Respondents Vic-
tor Patino and Nydia Patino d/b/a Jean Pier had engaged
in unfair labor practices within the meaning of Section
8(a)(1), (3), and (5) and Section 2(6) and (7) of the National
Labor Relations Act, as amended, and recommending an
order to remedy said unfair labor practices. On March 1I,
1977, while these consolidated cases were pending before
the Board, the Regional Director issued a new complaint
against Victor Patino and Nydia Patino d/b/a Jean Pier,
Budget Fashions, and Richard Erquiaga d/b/a California
Sewing, alleging that Respondent Budget Fashions and Re-
spondent California Sewing were both alter egos of Respon-
dent Jean Pier, and as such had violated Section 8(aX)(1), (3),
and (5) and Section 2(6) and (7) of the Act (Case 31-CA-
6615, formerly 21-CA-15104).'
On May 25, 1977, the Board granted the General Coun-
sel's motion to reopen the record in the previous consoli-
dated cases, to consolidate said cases with Case 31-CA-
6615, and to arrange for further hearing. The consolidated
cases previously heard were remanded to the Regional Di-
rector for further action. On June 23, 1977, the Regional
Director reopened the record in the former cases; consoli-
dated said cases with Case 31-CA-6615 for purposes of
hearing, ruling, and decision before this Administrative
Law Judge; and noticed the cases for hearing.
The amended complaint, issued August 26, 1977,2 alleges,
in substance, that (1) from about February 1, 1976, until
about May 12, 1976, Respondent Victor Patino, as a sole
proprietor, assumed and continued the operations of Re-
spondent Jean Pier,3 using substantially the same equip-
ment, employing some of the same employees and supervi-
sors, and producing the same products and services
previously performed by Respondent Jean Pier at a differ-
ent location; (2) since on about May 12, 1976, Respondent
Richard Erquiaga, doing business as California Sewing, as-
sumed and continued the operations of Respondent Jean
Pier, jointly with Respondent Victor Patino, for the benefit
of Respondent Jean Pier: (3) at all times material, Respon-
dents have been affiliated business enterprises with common
ownership and control, operating as a single integrated en-
terprise, thereby constituting a single employer; (4) since
February 1976, Respondents Victor Patino and Respondent
California Sewing have each been alter egos of Respondent
Jean Pier; (5) since on about November 4, 1975, Respon-
I The onginal charge in the instant case, filed on October 5, 1976, and duly
served, named as the Employer only Victor Patino and Nydia Patino. The
first amended charge, filed on March 10, 1977. also duly served, added as
Respondents Eddie Radow, d/b/a Budget Fashions, and Richard Erquiaga,
d/b/a California Sewing. The second amended charge, filed on August 26.
1977. and duly served, added Victor Patino and Nydia Patino d/b/a Jean
Pier as Respondents.
2 Budget Fashions was dropped as a Respondent in this amended com-
plaint.
References to Jean Pier herein signify the copartnership of Victor Patino
and Nydia Patino, d hba Jean Pier.
785
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dents have refused to bargain with the Union as exclusive
representative of Respondents' employees in an appropriate
unit; (6) in about December 1975 and in about February
1976 Respondent Jean Pier unilaterally decided to move
without notifying the Union or offering it an opportunity to
bargain, removed said Respondent's business from 1405
West Pico Boulevard to a location at 315 West 38th Street,
Los Angeles, California; (7) and since about February 1,
1976, Respondents have failed and refused to reinstate the
former employees of Jean Pier to the positions previously
occupied by them while in the employ of Jean Pier at its
location at 1405 West Pico Boulevard, Los Angeles, Cali-
fornia.
Respondents Victor Patino, Nydia Patino, Richard
Erquiaga, and California Sewing filed answers through
their attorney; Respondent Budget Fashions, Inc., filed an
answer signed by Edward Radow (its secretary-treasurer),
but was later dropped from these proceedings. All Respon-
dents denied generally the substantive allegations of the
complaint.
Pursuant to the Board's Order, issued May 25, 1977,
hearing was held before me on August 29 and 30, 1977, at
Los Angeles, California. General Counsel and Respondents
were represented by counsel. All parties were afforded full
opportunity to be heard, to examine and cross-examine wit-
nesses, to introduce evidence relevant and material to the
issues, to argue orally, and to file briefs and proposed find-
ings of fact and conclusions of law. The parties waived oral
argument but filed briefs on October 1, 1977.4 No proposed
findings of fact or conclusions of law have been filed by any
of the parties.
Upon the entire record in the case and based upon the
appearance and demeanor of the witnesses and the briefs of
the parties in the instant proceeding, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENTS
The amended consolidated complaint alleges that at all
times material herein, Respondent Jean Pier, a partnership.
either per se or through alter egos, has been engaged in the
manufacturing of clothing, with an office and principal
place of business located in Los Angeles, California. In the
' On November 9, 1977, counsel for the General Counsel moved to strike
from Respondents' brief exhibits A and B, annexed to the brief. Exhibit A,
purporting to be a brief on behalf of Respondents Victor Patino and Nydia
Patino in the previous consolidated cases, was never actually filed or served
on the other parties, despite a 30-day extension granted for the purpose.
Likewise, exhibit B, consisting of the purported financial statements of Jean
Pier for the year ended December 31, 1975, attached to the previous brief
allegedly filed, was never introduced in evidence in those cases or in the
instant proceedings. Nor has any claim been made that the financial state-
ments constituted newly discovered evidence or that they were otherwise
admissible in these proceedings. In any event, Respondents made no attempt
to introduce this evidence at either hearing. General Counsel's motion to
strike is hereby granted, and both exhibits attached to Respondents' brief are
hereby stricken. With regard to the motion to strike the exceptions, including
the financial statements attached thereto, the General Counsel represents
that no exceptions were ever served on the other parties, and no proof of
such service has been shown. However, since the previous cases have already
been transferred to the Board, the motion to strike the exceptions and the
financial statements attached thereto in this case are reserved for disposition
by the Board.
course of its business, said Respondent sells services valued
in excess of $50,000 annually to firms located in the State of
California, each of which firms in turn sells goods and ser-
vices valued in excess of $50,000 annually directly to cus-
tomers located outside the State of California. Although
Respondents deny these allegations proforma, Respondents
Victor Patino and Nydia Patino, as copartners doing busi-
ness as Jean Pier, stipulated at the instant hearing that Jean
Pier and Richard Erquiaga, doing business as California
Sewing, have, at all times material, been engaged in com-
merce within the meaning of the Act. Moreover, the Board
has asserted jurisdiction over Respondent Jean Pier, and
has certified the Union as exclusive representative of em-
ployees in the appropriate unit on March 16, 1976.
It is therefore found on the basis of the foregoing and the
entire record that, at all times material herein, Respondents
Victor Patino and Nydia Patino, copartners doing business
as Jean Pier, and their alter egos, have constituted a single
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Los Angeles Joint Board of the International Ladies'
Garment Workers' Union, AFL-CIO, is, and at all times
material has been, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE NFAIR LABOR PRACTICES
A. The Issues
1. Whether Respondents Victor Patino and Nydia Pati-
no and Richard Erquiaga, doing business as California
Sewing, as alter egos of Jean Pier, have engaged in unfair
labor practices within the meaning of Section 8(a)(1), (3)
and (5) of the Act by various acts of interference, restraint,
or coercion: by unilaterally, without notice to or opportuni-
ty for negotiation with the Union, shutting down and re-
moving the Jean Pier operation to a new location, and by
discharging and thereafter failing and refusing to reinstate
the employees of Jean Pier who had unlawfully been termi-
nated in December 1975 when it closed down its operation.
B. Preliminary Statement
The instant proceeding represents the aftermath of events
which gave rise to the unfair labor practices in which Victor
Patino and Nydia Patino, copartners doing business as Jean
fPier, were found to have engaged in in the earlier proceed-
ings. The findings and conclusions in those cases as detailed
in the Decision issued on September 20, 1976, are now
pending before the Board. Except as modified herein, the
findings and conclusions are hereby reaffirmed and incorpo-
rated herein by reference.
C. Subsequent Events
As found in the earlier Decision, the Patinos shut down
the Jean Pier operation for all practical purposes, on about
786
VICTOR PATINO AND NYDIA PATINO, ET AL.
December 2, 1975, retaining a skeleton crew until Decem-
ber 19 and utilizing other contractors to complete unfin-
ished work on hand.
The Patinos had been engaged, under the firm name of
Jean Pier, in the business of sewing and finishing ladies
garments for sportswear manufacturers. Among their cus-
tomers or manufacturers was Budget Fashions, Inc., herein
Budget. Under the current practice in the Los Angeles area,
the manufacturer selects the textiles or fabrics, designs the
style of the garment to be produced, cuts the material, and
delivers the goods to the "contractor." The contractor sews,
presses, finishes, and delivers the finished garments to the
manufacturer. During this period, Budget used other con-
tractors as well as Jean Pier to perform this work.
Sometime in December 1975,5 Edward Radow, managing
officer and sole stockholder of Budget, telephoned Victor
Patino at Jean Pier's place of business to ask him whether
he could handle some work for Budget.6 Patino told Radow
that he was going out of business. Radow asked Patino
what he planned to do, and Patino told him that he was
going to look for other work. Radow, who had acquired
some property consisting of two separate, neighboring
buildings only one of which he intended to occupy, asked
Patino whether he would be interested in moving into the
other building and working for Budget as an "inside con-
tractor."7 Patino was receptive to this proposition, and told
Radow that he had all the necessary equipment and could
provide experienced help for the operation.
After closing the Jean Pier operation in December 1975
(probably late in January 1976), the Patinos moved the ma-
chines and equipment which had been used in the Jean Pier
operation from the location at 1405 West Pico Boulevard,
Los Angeles, to the site at 226 West 37th Place, one of the
two buildings owned by Radow. About 2 weeks later, Bud-
get moved its own machines and equipment from Radow's
other building, located at 315 West 38th Street, to the 226
West 37th Place location, while the Patinos moved their
machines and equipment into 315 West 38th Street, where
they continued their operation.
Later, Radow in an individual capacity executed a lease
with the Patinos, as individuals dated February 1, 1976,
covering the building located at 315 West 38th Street, Los
Angeles, for a term of 3 years at a monthly rental of $900.'
s Although Radow testified that it was in the latter part of the year, and
later said that it could have been anywhere from August to November, it is
evident from the context of his testimony that the telephone conversation
occurred in the month of December, since Jean Pier ostensibly went out of
business no later than December 19. 1975.
6 Budget conducted a manufacturing business similar to Jean Pier's but on
a smaller scale, chiefly for making samples of ladies sportswear garments for
its customers.
7 Radow testified that an inside contractor usually works on or near the
premises of the manufacturer, performing services for that manufacturer ex-
clusively as long as the manufacturer can provide the contractor with work.
When the manufacturer has no work for the contractor, the latter may per-
form work for other manufacturers.
I Although Patino claimed that the lease was not actually executed until
April 1976, Budget's records for the Patino operation disclose that $900 was
deducted from income from the operation for the month of February. Ac-
cording to Radow, the lease was executed at about the time the Patinos
began this operation. Payroll records indicate that the first payroll period
ended January 31, 1976. I is probable that Patino occupied the premises
without a lease before the arrangement with Radow was reduced to writing.
In an) event, as will later appear, the arrangement was terminated about the
end of April the same year.
Under the arrangement between Radow and the Patinos,
covered by an Addendum to the lease, Radow was entitled
to the Patinos' services, as an "independent contractor," in
the sewing and finishing of good furnished by Radow, the
lessor.'
The Addendum called for the Patinos' ° to provide the
machines, equipment, furniture, and personnel essential to
the operation. Patino was to hire the employees needed for
the venture, with the sole right to hire, direct, supervise, and
control the employees. Radow agreed to advance necessary
funds for the operation, including costs of alteration and
installation of Patino's machines and equipment, and to fi-
nance Patino's payroll on a weekly basis. Radow also
agreed to compensate Patino for the work furnished Budget
at a price fixed between them, with a periodic accounting at
least monthly.
Radow further undertook to advance Patino any addi-
tional sums necessary, furnishing him with an accounting of
such sums, for which Patino agreed to reimburse Radow
upon presentation of statements or billings.
Radow established a separate payroll account at the
bank in Budget's name, apart from its own regular account.
Patino furnished the bank with the wage and hour data,
and the bank ssued the paychecks, deducting the custom-
ary withholdings. The original payroll printout covering
this account was sent to Patino and a copy to Radow. Bud-
get maintained a separate ledger for its transactions with
Patino, including the payroll advances and other expenses
incurred, crediting Patino with the income derived from the
operation.
Patino was free, however, to do work for other manufac-
turers and to establish prices for the work, provided only
that Budget had "first call" on Patino's services. Patino ac-
tually performed such work for other manufacturers, who
remitted payment to Budget which credited Patino's ac-
count with such payment. Radow recommended another
manufacturer to Patino as his first "outside" customer.
Radow received no commission for this order, but on subse-
quent business which Radow procured for Patino he was
paid a commission. Later, Patino solicited his own custom-
ers directly, made his own arrangements, and paid Radow
no commission.
As has previously been noted, Patino decided on the size
of his work force, hired the operators, fixed their wages,
rates of pay, hours of work, and other terms and conditions
of employment. As of February 20, 1976, Patino had hired
23 employees. Of this number, only four, presumably key
employees, had been employees of Jean Pier." Patino also
placed help wanted ads for operators in La Opinion, a
9 Although the lease and Addendum make no mention of Budget, it is
evident that as sole stockholder and managing official, Radow made no dis-
tinction between himself, as an individual and the corporation as a separate
entity. It is clear, however, that any services to be performed by the Patinos
under the lease arrangement were to be rendered to Budget. For the purpose
of this proceeding. references to Radow are intended to appl equall to
Budget, as the context may require.
10 For convenience. all references to Patino hereinafter are intended to
apply to Victor Patino and to his wife Ndia unless the context otherwise
requires. Until March 1976, Mrs. Patino was employed by a different manu-
facturer. Thereafter, she joined her husband in active management.
" Yolanda Vasquez. Teresa Cervantes. Virginia Calderon, and Julia Rod-
nguez.
787
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spanish language newspaper in the Los Angeles area. By
March 31, 1976, Patino had hired 68 employees, none of
whom except as noted, had previously been employed by
Jean Pier.
Although Patino was not entitled to a salary under his
arrangement, Radow discovered in March 1976, after ex-
amining the bank's payroll printout for the Patino opera-
tion, that Patino, his wife, and son had been drawing sala-
ries aggregating $660 a week. Radow protested to Patino
that that was not their arrangement, reminding him that the
Patinos were not entitled to a salary and were to be com-
pensated only by any profits derived from the operation.
Patino told Radow that he needed a salary to live on. Fi-
nally, Patino prevailed on Radow to let him continue draw-
ing a salary, on Patino's assurance that he would be able to
work off any indebtedness to Radow.
In April 1976, Radow told Patino that he wanted to dis-
continue their arrangement, and notified Patino that he
would not be doing any of Budget's work and would be
operating "on his own." Patino pleaded that he needed time
to make arrangements to meet his payroll, to "register a
name," and procure the necessary licenses.' Radow gave
him until the end of June.
Radow cancelled Patino's lease but permitted him to re-
main as a tenant at will on a month-to-month basis. An
unlawful detainer action brought by Radow against Patino
to recover rent, for the months of April, May, and June,
was settled by the issuance of postdated checks to cover the
arrears of rent. Other differences were apparently resolved
in an accounting between the parties.
On April 30, 1976, the last day of the pay period under
Patino's arrangement with Budget, Patino notified the em-
ployees who had been working under this arrangement that
a new company, California Sewing, was being formed to
continue the business previously conducted by him. On
May 1, California Sewing took over the operation, using the
same machines, equipment, and personnel, at the same lo-
cation and performing the same work for the same custom-
ers.
Meanwhile, Patino had approached Richard Erquiaga
regarding the formation of California Sewing to operate the
business which had previously been conducted by Patino.
Erquiaga, a friend of Patino's son and frequent visitor at
the Patino home, consented.
On May 12, 1976, Erquiaga signed and filed a fictitious
business name statement with the county clerk, in the name
of California Sewing. According to Erquiaga, he became
the actual, as well as the titular, owner of the business, but
he delegated all authority for the operation of the business
to Patino as his manager. The same day, Patino opened a
bank account with a $4,000 deposit in the name of Califor-
nia Sewing.'
Erquiaga, aged 22 and living at home with his parents,
was a full-time college student, and part-time clerk em-
ployed by Alpha Beta, a retail grocery company. He had
known the Patinos about 7 years, primarily through their
2 "Fictitious Business Name Statement."
i Although Patino testified that he was "broke" when Radow terminated
his arrangement with him, he claimed that this sum represented payment by
Budget for work completed during the final weeks of his arrangement with
Radow. Patino also testified that he may have met his payrolls for California
Sewing with advances from manufacturers for whom he did work.
son. He admittedly had no familiarity with the garment
contracting business either as owner or employee. He in-
vested no money in the operation, but according to him, he
was to receive 10 percent of any profits. Patino, his wife,
and his son drew salaries aggregating about $600 weekly,
substantially the same amount the Patinos had drawn as
inside contractor while at Budget. After it became apparent
at the hearing that Erquiaga was nothing more than a
strawman for Patino, the parties stipulated that Erquiaga
was not the real owner of California Sewing and that the
business was actually owned and operated by Victor H.
Patino and Nydia Patino.
California Sewing continued its contracting operation
until February 1977, when it moved its machines and
equipment to a new location at 3214 South Main Street,
Los Angeles, California, where it was still operating at the
time of the hearing. California Sewing employed a comple-
ment of 49 persons, including the Patinos, all of whom had
been employed in the previous operation. These employees
continued to work for California Sewing without a hiatus
during the transition from the Patino-Budget opration to
California Sewing.
At the previous hearing, Respondent Patino testified that
after he closed down the Jean Pier operation, he, his wife,
and his son became employed by Budget Fashions as fac-
tory manager, forelady, and driver, at salaries of $300,
$250, and $110 per week, respectively, plus a 3 percent
commission on gross sales to Patino and his wife. Patino
arranged for moving and installing at the new location the
sewing and pressing machines and all other equipment pre-
viously used in the Jean Pier operation.
The evidence developed at the instant hearing, however,
fairly establishes that the Patinos were lessees of Radow
and independent contractors rather than employees of Bud-
get. If anything, the relationship was more nearly that of
landlord and tenant. They occupied the premises owned by
Radow under a lease at a rental of $900 per month. They
used their own machines and equipment, hired their own
employees, fixed wages and conditions of employment, per-
formed the same type of services for other manufacturers,
and independently established, the prices to be charged
other manufacturers for the work performed. The fact that
Radow collected his rent out of the gross receipts from the
Patino operation, financed the weekly payroll, and ad-
vanced the expenses of installation of the machinery and
equipment does not affect these conclusions. In fact, under
the initial arrangement, the Patinos were to receive no
weekly salary or compensation other than the net profits
realized from the operation after Budget had recouped the
amounts advanced for payroll and other expenses. Subse-
quently, when Radow discovered that Patino was including
in his weekly payroll salaries for himself, his wife, and his
son, Radow protested that that was not their arrangement.
That Radow eventually capitulated, and consented to al-
lowing the Patinos to draw these sums as salary, did not
result in an employer-employee relationship. The fact that
the Patinos performed contract services for other manufac-
turers, while occupying premises owned by Radow, indi-
cates that the parties regarded the Patinos as an indepen-
dent contractor. It is clear from the record that Patino
performed the same type of services for manufacturers
other than Budget, and that by mid-March the amount of
788
VICTOR PATINO AND NYDIA PATINO, ET AL.
work performed for Budget had drastically declined in
comparison with work done for outside manufacturers.
It is found on the basis of the foregoing and upon the
entire record, that the lease arrangement between Radow
and the Patinos, under which the Patinos rendered services
to Budget, did not create an employment relationship but
rather that of an independent contractor continuing the
same business previously conducted under the name of
Jean Pier. Budget continued its own business, utilizing
other contractors in addition to Patino, maintaining sepa-
rate bookkeeping records for its own operation. There was
no interchange of employees between Budget and Patino.
The record fully establishes that neither Budget nor Radow
possessed or exercised any control over the manner or
means by which the garments on which Patino's employees
worked was to be performed. It is evident from the forego-
ing findings that the operation conducted by Patino, while
acting as contractor for Budget, amounted to a continu-
ation of the Jean Pier operation, with the same ownership,
management, and substantially the same customers.
It is therefore found that the Patinos were successors or
alter egos of the business operated as Jean Pier. The fact
that the Patinos were able to reestablish their business, al-
beit at a different location, within less than I month after
they had ostensibly shut down their operation as Jean Pier.
lends further support to the conclusion that Respondent
Patinos closed down their operation as Jean Pier and dis-
charged their entire complement of employees at their for-
mer location to avoid recognizing and negotiating with the
Union. The Patinos' flagrant attempt to conceal their actual
ownership of California Sewing by putting the business in
Erquiaga's name, which the Patinos reluctantly conceded, if
only for the purpose of this hearing, completely impugns
their motive for closing down the Jean Pier operation. It
further supports the conclusion that both the Patino-Budget
arrangement and the California Sewing business were mere
disguised continuances of Jean Pier.
It is hereby found that the Patino-Budget operation, and
Richard Erquiaga, doing business as California Sewing, at
all times material herein have been, and that California
Sewing is now successor to and alter ego of Victor Patino
and Nydia Patino, individually, and as copartners doing
business as Jean Pier.
It is therefore found that all Respondents are, jointly and
severally, responsible for remedying the unfair labor prac-
tices committed, as found in the previous unfair labor prac-
tice proceedings.'4
Since the evidence adduced in the instant proceeding es-
tablishes that the Patinos, as copartners doing business as
Jean Pier, did not, as there found, permanently shut down
their operations on or about December 19, 1975, but in-
stead, entered into the lease arrangement with Radow soon
afterward under which they continued substantially the
same business as Jean Pier at a different address, using the
same machines, equipment, some of its former employees.
and producing the same product for many of the same la-
dies' sportswear manufacturers (including Budget), it will
14 N.L R.B. v. Flite Chief, Inc.; Richard Miller and Karen Miller et al., PAR
85 LC 11.200 (?th Cir. 1977); James K. Sterritt, Inc.. and Concrete Haulers,
Inc., 215 NLRB 769 (1974); Marquis Printing Corporation and Mutual Litho-
graph Company, 213 NLRB 394 (1974); Rushton Mercier Wood'orking
Co., Inc., and Rand & Co., Inc., 203 NLRB 123 (1973).
be necessary to modify "The Remedy" in the previous pro-
ceedings.
D. The Refusal To Bargain
1. The appropriate unit
The consolidated complaint in these proceedings alleges,
and Respondent's answers deny, that the following consti-
tutes an appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All production and maintenance employees employed
by respondents at their facility located at 1405 West
Pico Boulevard, Los Angeles, California or 315 West
38th Street, Los Angeles, California, excluding office
clerical employees, models, salesmen, professional em-
ployees, watchmen, guards and supervisors as defined
in the Act.
On November 3, 1975, in accordance with a Stipulation
for Certification Upon Consent Election, an election was
held among the employees in the appropriate unit alleged.
On March 16, 1976, the Board issued its decision and certi-
fication of Representative, adopting the Regional Director's
report (Case 31-RC-3297)."' As found in the previous Deci-
sion in these proceedings, Jean Pier purportedly closed
down its operation at its Pico Boulevard location, as Victor
Patino and Nydia Patino had threatened to do. In about
mid-January 1976. the Patinos entered into the lease ar-
rangement with Radow, previously detailed.
As of February 20, 1976, Patino had hired 23 employees,
only four of whom had previously worked for Jean Pier. By
March 31, 1976, Patino had hired 68 production employees.
There was no change in the job classifications or duties of
these employees. At the time of the election, on November
3, 1975, there were at least 92 production and maintenance
employees in the unit which had been found to be appropri-
ate.' 6 The subsequent reduction in the size of the work force
did not, of course, affect the appropriateness of the unit.
2. Majority status
The Union's majority status having been established by
the Board certification, there is a presumption of continuing
majority in favor of the Union. There can be no doubt that
except for the brief hiatus of less than I month, following
the purported closing down of the Jean Pier operation, Pa-
tino resumed the same business enterprise, first under his
lease arrangement with Radow, and later (upon the cancel-
lation of the lease), without any interruption in the opera-
tion, employing the same employees, under the alter ego of
California Sewing. While the evidence discloses that Patino
hired only four of Jean Pier's former employees, at the time
he began operating under the Budget auspices it is obvious
that he did not hire a majority of Jean Pier's former em-
ployees because of his determination to avoid dealing with
I' The appropnate unit described in the certification did not, of course,
refer to the 315 West 38th Street location. At the time of the election Jean
Pier was still operating the business at 1405 West Pico Boulevard.
" The tally of ballots established 68 ballots cast for and 15 against the
Union. with 9 challenged ballots, and insufficient number to affect the results
of the election.
789
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union. Moreover, Patino or his alter egos at no time
raised the issue of lack of majority (or appropriateness of
the unit) as a ground for refusal to bargain. Even if Patino
had done so it would have been to no avail, since he met the
Union's initial demand for bargaining by shutting down the
Jean Pier operation and terminating his employees.' 7
In any event, even under successorship principles, unless
the successor can demonstrate that the Union has lost its
majority or can establish a good-faith doubt based upon
objective considerations that the Union no longer repre-
sents a majority of the unit employees, the successor is ob-
ligated to recognize and bargain with the Union. Any al-
leged loss of majority, under the circumstances of these
cases, must be attributed to Respondents Patino, in view of
the mass discharges of their employees for the obvious pur-
pose of circumventing the Union's status as certified repre-
sentative. The presumption of continuing majority status is
at least as applicable in the case of alter egos as in the case
of successors, and the Union may not be required to rees-
tablish its majority status.' "Where such a presumption ex-
ists and has not been overcome by the requisite kind and
degree of proof. the incumbent union need not reestablish
its majority status through an election" or by other means.
This is especially so where the owners of Jean Pier had
manifested their union animus through plant closure and
were determined not to bargain with the Union under any
circumstances. Whether Respondents are deemed to be suc-
cessors or alter egos, the end result would be the same.
3. Demand for recognition; refusal to bargain
It is not disputed that the Union made a demand on Jean
Pier for recognition and bargaining, at least as early as No-
vember 4, 1975, the day after the Board-conducted election,
and that Jean Pier failed or refused to bargain with the
Union. Respondents' contention that the Union failed to
make a demand on California Sewing is no defense to its
failure or refusal to bargain. Since the existing certification
itself constitutes a continuing demand for recognition, the
incumbent Union need not renew its demand. Moreover,
the evidence in both the prior as well as the present pro-
ceedings makes it abundantly clear, in view of Respon-
dents' unalterable opposition to the Union, that any further
demand by the Union would have been futile. In such case,
the Union is excused from making such a demand.
In view of the continuity of the business enterprise, the
Union's status as continuing bargaining representative of
the employees in the appropriate unit covered by the Board
certification and Respondents' failure to overcome the pre-
sumption of continuing majority status, it is hereby found
that at all times material herein since November 4, 1975,
and especially since March 15, 1976, the Union has been,
and now is, the exclusive bargaining representative of the
employees in the appropriate unit. It is further found that
'7 Cf. N.L.R.B. v. Bausch & Lomb, Inc., 526 F.2d 817 (2d Cir. 1975), enfg.
in material part 214 NLRB 338 (1974), and cases cited therein. See also
Virginia Sportswear, Incorporated, 226 NLRB 1296 (1976). In view of Pa-
tino's union animus, his assertion that he did not offer employment to other
former employees of Jean Pier because he had no addresses for them is
patently specious, especially as there was no showing that he made any effort
to locate them.
H1 Virginia Sportswear, Incorporated, supra at 1300.
the Union made or was legally excused from making a
proper demand for bargaining with Jean Pier and its suc-
cessors or alter egos; that Respondents failed and refused to
bargain with the Union; and that they are jointly and sever-
ally obligated to bargain with the Union as exclusive repre-
sentative of Respondents' employees in the appropriate
unit.
In view of these findings, The Remedy, conclusions of
law, and recommended Order and notice to employees in
the prior proceedings are hereby vacated and the following
substituted therefor:
IV. THE REMEDY
Having found that Respondents Victor Patino and Nydia
Patino, doing business as Jean Pier, and their alter egos,
Victor Patino, Nydia Patino, and Richard Erquiaga, doing
business as California Sewing, have engaged, jointly and
severally, in unfair labor practices within the meaning of
Section 8(a)(1), (3), and (5) of the Act, it will be recom-
mended that they cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of
the Act.
It has been found that Respondents Victor Patino and
Nydia Patino, doing business as Jean Pier, discriminatorily
discharged Manuela Nunez, Wilfrido Dominguez, Paula
Rios Lazaro, and Lila de Castro on November 14, 1975,
because of their union or other protected concerted activi-
ties to discourage membership in the Union, in violation of
Section 8(a)(3) and (1) of the Act. Since it has been found
that Respondents Patinos did not permanently shut down
the Jean Pier operation but continued the same business at
another location, at least since about January 24, 1976, and
subsequently, under the guise of Richard Erquiaga, doing
business as California Sewing, it will be recommended that
Respondents be ordered to offer the employees discharged
on November 14, 1975, as well as those terminated on De-
cember 2, 1975, as a consequence of the shutdown on that
date, immediate and full reinstatement to the jobs held by
them on said dates, respectively, as employees of Respon-
dents Victor Patino and Nydia Patino, individually or in
their capacity as copartners doing business as Jean Pier,
and to as many of their former employees in the unit repre-
sented by the Union, who were terminated on December 2,
1975, as said Respondents may require in the conduct of
their operations or those of any successor or alter ego of
said Respondents, discharging, if necessary, any employees
presently employed in their current operation. All remain-
ing employees in the unit represented by the Union, who
were terminated on December 2, 1975, as a result of the
shutdown of the Jean Pier operation, shall be placed on a
preferential hiring list. The identity of such employees is left
for determination at the compliance stage of these proceed-
ings.
It will further be recommended that Respondents shall
make whole those employees discharged on November 14,
1975, as well as those discharged on December 2, 1975, for
any loss of earnings they may have sustained by reason of
the discrimination against them, by payment to the employ-
ees discharged on November 14, 1975, of the sums of
money they would normally have earned but for the dis-
crimination against them from the date of said discrimina-
790
VICTOR PATINO AND NYDIA PATINO, ET AL.
tion to the date of Respondents' unconditional offer of rein-
statement; and, as to those employees who were terminated
as a result of the shutdown of the Jean Pier plant on De-
cember 2, 1975, for any sums of money they would have
earned but for such discrimination, from December 2, 1975.,
to the date on which Respondents place the names of such
employees on a preferential hiring list, less their net earn-
ings during such periods, with backpay computed on a
quarterly basis, plus interest, as provided in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977),'9 to be determined at
the compliance stage of these proceedings, if necessary.
It will further be recommended that Respondents, jointly
and severally, be required to recognize and bargain collec-
tively with the Union as the exclusive representative of all
the employees in the appropriate unit for a period of I year
from the date Respondents commence bargaining with the
Union in good faith.'0
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Victor Patino and Nydia Patino, copartners, doing
business as Jean Pier, and Victor Patino and Nydia Patino,
individually, and Richard Erquiaga, doing business as Cali-
fornia Sewing, alter egos of said Victor Patino and Nydia
Patino, as individuals, or as copartners doing business as
Jean Pier, were, and at all times material herein have been,
employers engaged in commerce and in a business affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Los Angeles Joint Board of the International Ladies'
Garment Workers' Union, AFL-CIO, is, and at all times
material herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees employed
by Respondents Victor Patino and Nydia Patino, doing
business as Jean Pier, at their former facility located at 1405
West Pico Boulevard, Los Angeles, California, or at 315
West 38th Street, Los Angeles, California, excluding office
clerical employees, models, salesmen, professional employ-
'
9
See, generally. Isis Plumbing Heating Co., 138 NLRB 716 (1962).
20As the Board's certification of the Union was entered on March 17,
1976, and tile employees have been deprived of their right to be represented
by their chosen bargaining representative for more than a year, it has been
recommended that Respondents be required to bargain with the Union in
good faith for I year from the date Respondents commence bargaining in
good faith. Bartlett-Collins Cornpany, 230 NLRB 194 (1977); Daniel Con-
struction Company, a Division of Daniel International. 229 NLRB 93 (1977).
ees, watchmen, guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
4. At all times material since November 3, 1975, and
especially since March 16, 1976, when it was certified as
exclusive bargaining agent and at all times since, the Union
has been, and is now, the exclusive representative of all the
employees in the aforesaid appropriate unit for the pur-
poses of collective bargaining within the meaning of Section
9(a) of the Act.
5. By changing the terms and conditions of employment
of their employees on November 4, 1975, and by discharg-
ing Manuela Nunez, Wilfrido Dominguez, Paula Rios
Lazaro, and Lila de Castro on November 14. 1975, and, by
terminating all other employees in the appropriate unit or
December 2, 1975, ostensibly because of the shutdown of
Respondent Jean Pier's business, but in actuality, because
of their union or other concerted activities, to discourage
membership in the Union, Respondent has engaged in un-
fair labor practices within the meaning of Section 8(a)(3)
and (I) of the Act.
6. By refusing, on or about November 4, 1975, and at all
times thereafter, and especially since March 16. 1976, the
date of the Union's certification, to bargain collectively
with the Union as the exclusive representative of all Re-
spondents' employees in an appropriate unit: and, particu-
larly, by refusing to bargain with the Union concerning
changes in working conditions; by unilaterally offering em-
ployees an insurance plan, without first notifying the Union
and affording it an opportunity to bargain regarding such
plan; and by failing and refusing to bargain with the Union
concerning the effects of the plant closing, Respondents
have engaged in unfair labor practices within the meaning
of Section 8(a)(5), thereby interfering with, restraining, and
coercing its employees in the exercise of the rights guaran-
teed in Section 7, thereby engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. By changing the terms and conditions of employment
of their employees: by threatening them with plant closure:
by promising an employee a wage increase to renounce the
Union; and by unilaterally offering employees an insurance
plan for the purpose of undermining their support of the
Union, Respondents have interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed
in Section 7, thereby engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
791