Jody Tootique

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 734 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jody Tootique and International Ladies' Garment
Workers' Union, AFL-CIO. Case 31-CA-8206
September 28, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On August 16, 1979, Administrative Law Judge
Gordon J. Myatt issued the attached Decision in this
proceeding. Thereafter, Respondent filed an excep-
tion limited to certain language contained in the no-
tice attached to the Administrative Law Judge's Deci-
sion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exception and has de-
cided to affirm the rulings, findings, and conclusions
of the Administrative Law Judge and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that Respondent, Jody Tootique, Los Angeles,
California, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, except that the attached notice shall be sub-
stituted for that of the Administrative Law Judge.'
'The notice, as requested by Respondent, is modified to state that Re-
spondent committed only one unifair labor practice.
APPENDIX
NOTICE To EMPIOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportuni-
ty to present evidence, the National Labor Relations
Board found that we committed an unfair labor prac-
tice in violation of the National Labor Relations Act,
as amended. We hereby notify you that:
The National Labor Relations Act provides you
with the following rights:
To engage in self-organization
To form, join, or assist in a union
To bargain collectively through representa-
tives of your own choosing
To engage in activities together for the pur-
pose of collective bargaining or other mutual
aid or protection
To refrain from the exercise of any of the
above activities.
In recognition of these rights, we hereby notify
you that:
WE WILL NOT question you so as to cause you
to disclose your union sympathies or support for
the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by the National
Labor Relations Act, as amended.
JOI)Y TOOTIQU:E
DECISION
STATEMENT E() ItlE CASE
GORDON J. MYArr, Administrative Law Judge: Upon a
charge filed on July 20, 1978.' by International Ladies' Gar-
ment Workers' Union, AFL-CIO (hereinafter called the
Union), against Jody Tootique. (hereinafter called the Re-
spondent) and an amended charge filed August 31, the Re-
gional Director for Region 31 issued a complaint and notice
of hearing on September 21. The complaint alleges that
Respondent, through its agents and supervisors, engaged in
various acts of conduct which violated Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended, 29
U.S.C., §151, e seq. Specifically, the complaint alleges that
Respondent unlawfully interrogated employees on several
occasions and on June 30 and July 7 unlawfully laid off
employees, and refused to reinstate them to their former
positions for the reason that the employees joined or as-
sisted the Union or engaged in other concerted activities.
Respondent filed an answer on September 26 admitting cer-
tain allegations of the complaint and denying others. Re-
spondent specifically denied engaging in any conduct which
violated the Act.
A hearing was held on this matter on December 12, 13.
and 14 in Los Angeles. California. All parties were repre-
sented by counsel and were afforded full opportunity to
examine and cross-examine witnesses, and to present mate-
rial and relevant evidence on the issues involved herein.
Briefs were submitted by all parties, and have been duly
considered.
Upon the entire record in this case, including my) obser-
vation of the witnesses and their demeanor while testifying,
I make the following:
FINDIN(;S OE FA(I
I. JURISI)I('IION
Respondent is, and has been at all times material herein.
a California corporation with an office and principal place
Unless otherwise indicated, all dates herein refer to the year 1978
245 NLRB No. 95
734
JODY TOOIIQUE
of business located in Los Angeles, California. Respondent
is a manufacturer of ladies' fashionwear and ladies' sports-
wear, and operates out of two facilities located in Los An-
geles. In the course of its business operation, Respondent
annually ships goods and supplies services in excess of
$50,000 directly to costomers located outside the State of
California.
On the basis of the above, I find Respondent is, and has
been at all times material herein, an employer within the
meaning of section 2(2) of the Act, engaged in commerce
and operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE ABOR ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union, AFL
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
Ill. THE ALI.EGED UNFAIR LABOR PRACTICES
A. Background Facts
Respondent is what is known in the garment industry as
a "fashion house." It employs designers who create fashions
and styles using various types of fabrics and prints for the
seasons which govern Respondent's trade.'
Patternmakers, cutters. samplemakers, and production
workers (machine operators) are employed to support the
design function. Once a creation is shown and accepted into
Respondent's line for a particular season, the piecegoods
are ordered in bulk from the fabric mills or suppliers and
printmakers.? Samples or duplicates are made by Respon-
dent's cutting and production staff for the sales force to
show prospective customers. Designs are created, patterns
are made, and piecegoods are ordered as much as 6 months
in advance of production of a given garment for a particu-
lar season. When a design goes into actual production, un-
less it entails the use of special fabrics or unique plaids, all
of the cutting of the piecegoods is performed by outside
contractors. All work on garments made of special fabrics
or plaids is performed by Respondent's production workers
to insure the quality of the product. After the outside con-
tractors have completed the cutting of the material, it is
then delivered to other outside contractors who sew the gar-
ments together. In terms of actual production work, i.e.,
from cutting to assembling to machine sewing, 90 percent
of the work is performed for Respondent by outside con-
tractors. However, where the design of a garment requires
special braiding or pleating, this work is done at Respon-
dent's facilities by its own production employees after the
garments are returned from the outside contractors.'
Once finished garments are returned from the outside
contractors, they are received, counted, and taken to Re-
spondent's inspection department. There the garments are
2 Respondent's creations are produced essentially for five seasons through-
out the year: (I) spnng; (2) summer: (3) early fall. or Iransition: (4) fall; and
(5) holiday.
'The piecegoods are normally shipped from the eastern part of the United
States to Respondent's facility on Olympic Boulevard in Los Angeles. There
the material is inspected by means of spot checks for defects or for shading
(to ascertain that the color is uniform throughout the roll of fabric) and then
warehoused until used in the production of garments.
4 The design, production, inspection, and shipping operations are located
at Respondent's second facility in Los Angeles on Washington Boulevard
inspected for flaws, faulty workmanship, and spots. The in-
spection department contains a cleaning and a repair sec-
tion for this purpose. After the inspection is completed, the
garments are sorted according to color, style, and size and
placed on racks in Respondent's stockroom to await pro-
cessing by the shipping department.
As in the case of the inspection department, the shipping
department is divided into units performing different func-
tions. The receiving section receives the garments from the
outside contractors and delivers them to the inspection de-
partment. After the garments are inspected and placed into
stock, the pullers from the shipping department pick the
required garments from the racks for a particular shipment.
The garments are taken to checkers who verify that the
right items have been pulled. They are then taken to the
packing section, where the garments are packaged for ship-
ment. The routing section makes up the proper invoices and
freight bills, and the merchandise is then picked up by com-
mon carrier for shipment to the ultimate customer.
B. The Union's Organizing Effbrt
The undisputed testimony indicates that the Union be-
gan its effort to organize Respondent's employees sometime
in early January 1978. During the first week in January,
union organizers appeared in front of the Washington Bou-
levard facility and began passing out leaflets and organiza-
tion cards to employees. There was a hiatus of several
months, and then the union organizers resumed their activi-
ties in front of Respondent's premises during the last 2
weeks in March. Leaflets were passed out again during the
last week in June.5
From the testimony of the employee witnesses it is appar-
ent that from time to time during the organizing activity,
employees would stop to talk with the union organizers and
accept authorization cards from them. For example, Elvira
Jimenez, an employee in the inspection department, stated
that she was leaving work in January with a group of em-
ployees and stopped to talk with organizers about the
Union. Elgis Moreno, supervisor of the inspection depart-
ment, was among the group. Jimenez stated that she took
several authorization cards, but her coworkers were not in-
terested and threw their cards away. Similarly, Alicia San-
chez testified that she had received authorization cards
from the union organizers outside Respondent's factory.
The testimony indicates that some of Respondent's employ-
ees accepted authorization cards from the union organizers
on more than one occasion, and signed and mailed them in
to the Union. Jimenez testified that she took blank authori-
zation cards into the factory and from time to time passed
them out among her coworkers. Some of the employees
signed the cards and returned them directly to her. Other
employees testified that they discussed the Union among
their fellow workers during lunch hours and breaks, and
.;ome passed out authorization cards. There is no testimony,
The testimony indicates that leaflets were also passed out on July 6 and
7. but these subsequent dates are not material to the issues presented here.
735
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
however, that this activity in the factory was observed or
overheard by any of Respondent's supervisors.
The Union wrote to all the employees who signed autho-
rization cards and invited them to a meeting at the union
headquarters on June 6, immediately after work. Seven em-
ployees attended this meeting and they were all from the
inspection department. A subsequent meeting was held on
a Saturday, June 14, at a restaurant in Venice. Approxi-
mately 14 employees attended this meeting. Again, the ma-
jority of those attending were from Respondent's inspection
department. Meetings were held in the homes of employees
on June 28 and June 29. Approximately six employees at-
tended the meeting on June 28, and two employees at-
tended the meeting on June 29.
C. The Alleged Unlassful Conduct of the Respondent's
Supervisors
As noted, a union meeting was held on June 6 and at-
tended by employees of the inspection department. Elgis
Moreno, supervisor of the inspection department, testified
that she noticed some of the women who usually worked
overtime were missing after the normal workday ended. She
spoke to Carmen Cornejo, one of the employees in the in-
spection department, and asked if she knew where the miss-
ing workers were. Cornejo told her that Angie Herrera, Ji-
menez, Maria Elena Moreno, and Aurora Guillen left at
the end of the day to attend a union meeting. Alicia San-
chez, who also attended the meeting, testified that the fol-
lowing day Moreno told her, in the presence of Herrera and
Jimenez, that the employees would no longer receive any
overtime because they left without working overtime the
day before to attend the union meeting. According to San-
chez, the employees were not assigned any overtime after
this conversation with Moreno. Jimenez testified that More-
no stated she was going to punish the employees for going
to the union meeting by taking away their overtime. Jime-
nez also testified that Maria Elena Moreno and Herlinda
Hernandez were present at the time that Moreno spoke to
the employees.
Moreno denied making any threats to take away the em-
ployees' overtime because they attended the union meeting
on June 6. She stated that the employees were permitted to
work overtime whenever the workload required it. On
cross-examination, Jimenez admitted that she continued to
receive overtime after the alleged threat by Moreno, and
the parties stipulated that Sanchez also worked overtime for
several pay periods following the alleged statement by Mo-
reno.
On June 26 the union organizers appeared outside Re-
spondent's factory and began to pass out leaflets. These
particular leaflets related to an incident that occurred at the
premises on June 21. Officers of the Immigration and Natu-
ralization Service (INS) came to the factory in search of
illegal aliens and were denied entrance by Respondent's of-
ficials. Jack Weingarten, chairman and chief executive offi-
cer of Respondent, testified that when the INS authorities
came to the factory, he contacted his attorney. He was told
that the officers could be denied entry if they did not have
an arrest or a search warrant. Acting on this advice, Wein-
garten determined that the INS officers did not possess a
warrant, and he refused to admit them into the factory.
The union leaflets, on the other hand, claimed that the
Union was responsible for the inability of the INS authori-
ties to gain entrance into the factory. The leaflets stated,
among other things, that Respondent's officials were aware
that they could lawfully deny INS entrance into the factory
because the Union had advised all companies who had con-
tracts with it of their rights to do so. According to the leaf-
let, the owners of Respondent were also owners of another
company (Hartfields-Zody's) with whom the Union had a
contract. (G.C. Exhs. 5 and 6(a)).
Weingarten stated that he became angry over the fact
that the Union was claiming credit for the manner in which
he handled the INS authorities. He told Robert Bethune,
manager of the shipping and receiving department, to call
the employees together and set the record straight on how
and why the INS incident was handled as it was.
Shortly before Bethune spoke to the employees, Moreno
came up to a group of the employees and asked if anyone
had a leaflet from the Union. Esperanza Patino took one
out of her purse and handed it to Moreno. According to the
testimony of Patino, Moreno asked if she wanted to be with
the Union, and the employee replied yes. Moreno then took
her by the arm and laughed. Stella Pena witnessed this inci-
dent and testified that when Patino handed the leaflet to
Moreno, the latter asked Patino if the Union was in her
interest. Patino indicated that she was interested in the
Union, and Moreno laughed and left.
Pursuant to Weingarten's instructions, Bethune called a
meeting of all the employees in the inspection, shipping,
and receiving departments. He spoke to the employees
through an interpretor, Ricardo Zepada, a supervisor in
Bethune's department. According to the testimony of the
employees, Bethune stated that the Union was not in their
interest and the union officials were thieves who lived out of
the employees' pockets. Bethune told the employees that
the Union was responsible for sending the immigration au-
thorities to the factory in order to pressure the employees
into signing authorization cards for the Union. He stated
that management denied the immigration authorities en-
trance to the plant in order to protect the employees.
Bethune told the employees that he he never worked at a
place where a union had gotten in and he would not allow
the Union to come into Respondent's factory. He stated
that the employees were receiving greater benefits from Re-
spondent than they could get through the Union. He told
the employees they knew what their benefits were because
they were set forth in the recently, issued employee hand-
book,6 and employees had a right to receive raises after 90
days of employment. The testimony indicates that several
of the employees complained they had been working for
Respondent longer than 3 months and had not received a
raise. Bethune told the employees they should speak to their
supervisors.7
eAccording to the testimony of Respondent's officials, the employees'
handbook was first issued on May 1, 1978. (G.C. Exh. 2). Prior to that time,
Respondent did not have an official handbook in use.
7 The statements made by Bethune constitute a consensus of the testimony
of the witness. Although Bethune testified at the hearing, his testimony did
not touch on the speech given to the employees.
736
JODY TOOTIQUE
Jimenez testified that she spoke up during the course of
the meeting. She stated that she informed Bethune the em-
ployees were going to join the Union, and through the
Union they would receive more benefits. Jimenez also testi-
fied that Bethune told the employees that if they wanted the
Union, Respondent would merely have to pay off the union
officials and they would be sold out.8
Following Bethune's meeting with the employees, More-
no came up to a table where Jimenez and Sanchez and
several other employees were working. She asked the em-
ployees why the Union did not go to those plants where the
employees were only earning a dollar an hour. She men-
tioned to the employees that they were receiving good bene-
fits from Respondent, such as paid holidays, Christmas bo-
nuses, free parking, paid insurance, and sick leave. One of
the employees, not identified in the record, made the obser-
vation that the people from the Union were "s-t."
D. The Layoffs of June 30 and July 7
On June 30 and again on July 7, Respondent laid off a
number of employees from the inspection and shipping de-
partments. Weingarten testified that sometime during the
month of May he was making a normal tour of the factory
and observed large numbers of employees in inspection and
shipping standing around with nothing to do.9 According to
Weingarten, it was apparent from his visual inspection that
these departments were overstaffed. He spoke to Egon
Taus, the general manager, and to Bethune about the situ-
ation. Weingarten directed them to lay off a sufficient num-
ber of employees in these two departments to eliminate the
overstaffing. Both Bethune and Taus testified that they de-
layed implementing Weingarten's orders because they felt
the work would pick up to the normal level for that period.
Taus, who had overall responsibility for Respondent's
entire operation with the exception of sales, testified that a
series of unusual events had affected production for the
months of May and June, and this resulted in an abnormal
slowdown of the flow of work in the inspection and ship-
ping departments. Normally, Respondent began cutting for
its early fall fashions in April, and this work, after going
through the usual production process, would flow into the
inspection and shipping departments in May and June. Be-
cause the preparation for the fashion seasons overlapped,
the cutting for the regular fall fashions would commence in
May and be reflected in the flow of work in inspection and
shipping in July and August.
Taus testified that beginning in April and continuing
through August, Respondent was experiencing an unusual
run of late delivery of piecegoods from its suppliers. In ad-
dition, it was discovered that entire shipments of piece-
iThere is conflict among the testimony of the employees regarding this
portion of Bethune's speech. Employee Stella Pena corroborates Jimenez'
testimony in that Bethune stated Respondent could bribe the union officials
in order to get rid of them. However, in her affidavit regarding Bethune's
speech, Pena makes no mention of any statements relating to a bribe. Em-
ployee Herlinda Hernandez categorically denied that Bethune made an)
comment about bribing the union officials in order to get rid of them. None
of the other employees who testified regarding Bethune's speech mentioned
that he stated Respondent could bnbe the union officials.
'Weingarten stated he toured the various departments each day that he
was in the factory.
goods which were delivered to Respondent were defective,
soiled, spotted, and, in many instances, shaded. As was cus-
tomary in the industry, Respondent only spot checked the
piecegoods when they were received. Thus, the full extent
of the flaws and defects was not initially discovered until
the material had been cut and sewn by the outside contrac-
tors. To compound the problems, it was discovered that
entire shipments of printed piecegoods were of poor quality
and contained defects.
Respondent introduced copies of numerous letters and
communications from Taus to its fabric suppliers and print-
makers protesting late delivery and poor quality of the ma-
terial received.' These documents and Taus' testimony re-
veal that Respondent ultimately, after several months of
communication and negotiation with the suppliers, had to
reject and return thousands of yards of piecegoods.
Because of the series of late deliveries and the huge quan-
tity of defective piecegoods, Respondent had to modify its
operation in order to salvage as much of the material as
possible to enable it to supply its customers' orders. Thus,
the inspectors in the warehouse where the piecegoods were
received had to work additional hours in order to inspect
each roll of material received. In addition, the garments
made of the material cut and sewn by outside contractors
had to be inspected at Respondent's factory, and repair and
cleaning procedures had to be taken in an effort to salvage
the garments. This operation grew to such a magnitude that
Respondent had to contract with an outside cleaning estab-
lishment to clean the garments before they were approved
for shipment. Taus testified that it was more economical
and timesaving to have this work performed by a profes-
sional cleaner than to employ additional staff in the inspec-
tion department. In addition, the cutters and production
people had to work overtime going over the garments after
they were received from the outside contractors in an effort
to attempt to eliminate the defects caused by the faulty
material. The cumulative impact of the problems meant
that the normal flow of work which would have been pro-
cessed through the inspection and shipping departments
was severely curtailed. Since orders for piecegoods were
placed months in advance, Respondent was unable to make
substitutions with material from new suppliers. Taus testi-
fied that in the case of printed goods, it was necessary to
design and order the printed fabric at least 6 months in
advance of the time for delivery.
Taus and Bethune testified that whenever garments in a
saleable condition were delivered from the contractors, it
was necessary for the inspection and shipping employees to
process them immediately in order to meet customer deliv-
ery dates. Taus stated that when late deliveries were made
to customers, the merchandise would be refused and the
contract canceled for that particular order. Therefore. even
though the inspection and shipping departments were over-
staffed, it was necessary for employees to work overtime in
many instances in order to process the garments for ship-
ment.
Taus testified that despite the all-out effort to resolve
these problems. he finally determined that the situation
could not be improved and the flow of work through the
0I Resp. Exhs, 15(a) ). 16(a) (q).
737
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inspection and shipping departments would not increase, as
hoped. Both Taus and Bethune stated that they had de-
layed implementing Weingarten's order to reduce the staff
in these departments because they felt that Respondent
would eventually resolve the problem with the piecegoods.
When this failed, Taus called in Bethune and Moreno and
instructed them to begin laying off personnel in their de-
partments.
In mid-June, Bethune met with the supervisors in his de-
partment and with Moreno to decide which of the employ-
ees would be laid off. He determined that a group of em-
ployees would be laid off on June 30 and a second group on
July 7. Both Bethune and Moreno testified that they de-
cided to get rid of those employees whom they felt were the
least productive. They stated that seniority was not a factor
in the selection unless it was a choice between employees of
equal ability and skills."
On June 30 Bethune laid off the following employees
from the shipping department:
Francisco Garcia
Concepion Goldivar
Maria Gonzales
Jose Hernandez"
Blanca Majia
Humberto Olivos
Lorenzo Olvera
Angelica Palma
Jose Penalosa
Armando Sanchez
Angelica (Sanchez) Tarraza
On July 7 Bethune laid off Maria Elena Valtierra. Bethune
testified that these employees were laid off because they
were either short-term employees or employees who had
low productivity records.
In the inspection department, Moreno laid off the follow-
ing employees on June 30: Elvira Jimenez, Estella Pena,
Libratta (Lily) Pina, and Alicia Sanchez. Moreno testified
Jimenez was laid off because she was a "lazy employee"
whose production was low. She stated that since Jimenez
worked in the cleaning section and the bulk of the cleaning
was sent to an outside contractor, there was no need to
retain this marginal employee."
Moreno stated that Pena was selected for layoff because
she was a slow worker and more productive employees in
her section were retained. Pena, on the other hand, testified
that she had been previously laid off in April for a period of
2 to 3 weeks because work was slow. She stated that she
was subsequently recalled by Moreno. According to Pena,
Moreno told her at the time that she was recalled because
she was a good worker.
1t In the employee handbook published by Respondent on May I, the
provision relating to the weight to be given seniority stated:
In cases of increase or decrease in the overall working force, or in cases
of promotions, seniority shall be the governing factor, providing the
qualifications, skills, and abilities of the employees involved are equal.
[Emphasis supplied.]
12 Hemandez was not listed in the complaint as being one of the employees
laid off, although Respondent provided the General Counsel with a list con-
taining the names of these employees. The General Counsel's motion to
include Hernandez as an alleged discriminatee was denied at the hearing and
was renewed in his bnrief. In view of my ultimate disposition herein, this
motion is again denied.
it Respondent's personnel records indicate that in March 1978 Jimenez
was given a 10-cents-an-hour wage increase on Moreno's recommendation.
Moreno testified, however. that she put through a wage increase for Jimenez
in order to attempt to inspire the employee to improve her work perform-
ance.
Pina, according to Moreno, was selected because she
fought with her coworkers and used ugly language when
referring to other female employees. Pina denied that her
work had ever been criticized by Moreno, or that she used
ugly language or fought with other employees. Pina testified
that she had been off the job for a number of weeks because
she had suffered an accident and broke her shoulder. Ac-
cording to Pina's affidavit. Moreno told her a few days be-
fore the layoff that she was going to be one of the first
employees to leave. Pina's affidavit indicates that Moreno
stated she would not have taken the employee back after
her accident, if the decision had been left up to her.
Moreno further testified that Sanchez was selected for
layoff because she had not been a long-term employee. Ac-
cording to the testimony of Sanchez, she had never received
any criticism from Moreno regarding her job performance.
On July 7 Moreno laid off five additional employees.
These employees were: Evangelina Cornejo, Aurora Guil-
len, Herlinda Hernandez, Juana Martinez, and Esperanza
Patino. Moreno testified that Cornejo had only been work-
ing for Respondent for a short period of time and that was
the only reason for her layoff. She further testified that
Guillen worked in the dress repair section and was one of
two employees doing that type of work. Since the other
employee had been working for Respondent for more than
7 years and only one employee was needed, Guillen was
selected for layoff. Moreno also added that Guillen was not
a very productive employee.' 4
According to Moreno, Hernandez was selected for layoff
because she was a problem employee who had to be moved
from one section to another. She stated that Hernandez was
a "big mouth." Hernandez, on the other hand, testified that
she had been told on several occasions by Moreno that she
was a good worker. She stated that she sought to quit in
May, and Moreno prevailed upon her to remain. According
to Hernandez, Moreno told her that she was a good worker
and a responsible person. The record indicates that in Sep-
tember 1978 Moreno referred Hernandez to another job
with another clothing manufacturer. Hernandez testified
that Moreno told her at that time that she was a good
worker and this particular company needed a responsible
employee. Moreno cautioned Hernandez, however, not to
mention anything about the Union to the new employer."
Juana Martinez., according to Moreno, was a good
worker but had only been with Respondent for a short pe-
riod of time. Moreno testified she did not recall this em-
ployee when work increased because she did not have Mar-
tinez' phone number, and three or four people applied for
work at the time Respondent would have recalled her. Mar-
tinez testified that Moreno praised the quality of her work
performance. She stated that Moreno moved her to a differ-
ent section of the inspection department to push the other
employees, because she worked so rapidly.
Patino, who worked in the pants department, was se-
lected for layoff by Moreno because she was less efficient
than the other employees. Patino testified that she had nev-
er been criticized about her work performance and com-
4 The record indicates that Guillen had also received a pay raise initiated
by Moreno sometime prior to the layoff.
15 Hernandez' testimony concerning the joh referral is undisputed in the
record.
738
JODY TOOTIQUE
plained that less senior employees in her section were re-
tained after the layoff. She acknowledged, however, that
one such employee also performed another job skill of cut-
ting uneven skirts, which she did not do.
The record indicates that in the shipping department, five
of the laid-off employees were recalled by Bethune in Octo-
ber when the workload increased. These employees were:
Francisco Garcia-October 7; Maria Gonzales-October
9; Jose Hernandez-October 9; Jose Penalosa-October 9;
and Maria Elena Valtierra-October 9. Respondent's offi-
cials testified that the decision to recall particular employ-
ees, as opposed to hiring new employees when needed, was
left entirely up to the supervisor of the department.
Bethune stated that, other than the five individuals he re-
called, he had no intentions of recalling any of the employ-
ees who were laid off in June and July.
Evangelina Cornejo was recalled by Moreno on August I
and was the only one of the laid-off employees from the
inspection department to be so recalled. Moreno testified,
however, that when work picked up in October she was
given authorization to hire some new employees on a tem-
porary basis. The testimony indicates that six employees
were hired by Moreno to work in the inspection department
on October 18 and one employee was hired in November.
At the time of the hearing, four of these new hires were still
working for Respondent.
Concluding Findings
The General Counsel and the Charging Party contend
that Moreno threatened employees with loss of overtime
the day after she became aware they had attended a union
meeting. In support of this connection, the testimony of
Jimenez and Sanchez was offered. The testimony of these
two witnesses, however, is conflicting. Although both testi-
fied that Moreno stated the employee would not be permit-
ted to work overtime as punishment for going to the union
meeting, Sanchez stated that all overtime stopped after
Moreno's statement, while Jimenez testified that the em-
ployees continued to work overtime as usual. Respondent's
records belie this statement by Sanchez and reflect that the
employees continued to receive overtime after the alleged
threat by Moreno. In addition, Sanchez testified that Herre-
ra and Jimenez were present, while Jimenez testified that
Hernandez and Maria Elena Moreno were also present
when the conversation took place. Hernandez was the only
one of the other employees asserted to have been present
who testified in these proceedings. I find it highly significant
that Hernandez made no mention of this alleged threat by
Moreno during the course of her testimony.
Because of the obvious conflict in the testimony of the
principal witnesses to this incident, and because it is appar-
ent that at least one of the witnesses (Sanchez) was pre-
pared to fabricate her testimony in the face of record evi-
dence to the contrary, I find that the testimony of these two
witnesses regarding this alleged threat is completely unreli-
able and must be discredited. Accordingly, I credit
Moreno's denial that she threatened the employees with
loss of overtime because they attended the union meeting,
and I find that this allegation of the complaint should be
dismissed.
It is further contended that when Moreno asked the em-
ployees for a copy of the union leaflet on July 26 she en-
gaged in conduct which violated Section 8(a)( 1 ). The undis-
puted testimony discloses that Moreno asked a group of
employees if they had a copy of the leaflet being distributed
that day by the Union regarding the incident with the im-
migration officials, and Esperanza Patino produced one
from her purse. Patino and Estella Pena testified that More-
no then asked Patino if she was interested in the Union, and
the employee responded yes. According to the employee
witnesses, Moreno then took Patino's arm and laughed. Al-
though Moreno denied there was any conversation after she
received the leaflet from Patino, I do not credit her testi-
mony in this regard. Rather, I find that Moreno did ask
Patino in a jocular and friendly fashion if she was interested
in the Union, and when the employee responded in the
affirmative, Moreno laughed.
The issue thus becomes whether, in these circumstances,
Moreno's conduct reasonably interfered with the free exer-
cise of Patino's right guaranteed by Section 7 of the Act. I
am constrained to find that it did. It is apparent from all of
the testimony regarding this incident that Moreno was
merely seeking to get a copy of the union leaflet for her own
purposes and was not demanding that the employees turn
over any copies they may have picked up from the union
organizers. If this were all, I would be inclined to agree with
Respondent's argument that the conduct did not violate the
Act. However, when given the leaflet, Moreno then ques-
tioned Patino regarding her sympathies and support for the
Union, albeit in a friendly manner. This interrogation
served no useful purpose other than to ascertain the em-
ployee's sympathies regarding the Union's organizing ef-
fort. The Board has held that an employee is entitled to
keep his views concerning unions from an employer in or-
der to be able to exercise "a full and free choice on the
point." Quemetco, Inc., a subsidiary of RSR Corporation,
223 NLRB 470 (1976). Thus, any questioning of the em-
ployee, even in a friendly and humorous fashion, about
such union sympathies reasonably tends to interfere with
the free exercise of the employee's rights under Section 7.
Paceco, a Division of Fruehauf Corporation, 237 NLRB 399,
401 (1978).
Accordingly, I find in these circumstances that Moreno's
question to Patino, which required a response concerning
her support for the Union, was unlawful interrogation and
violated Section 8(aX1) of the Act.
Finally, it is argued that the layoffs on June 30 and July
7 were in substantial part motivated by the Union's
stepped-up organizing effort and the employees' activity in
support of the Union. In my judgment, the record does not
support this argument, and the General Counsel has failed
to establish by a preponderance of the evidence that the
layoffs were motivated in substantial part by reasons which
violate the Act.
It is more than apparent from the record evidence and
the testimony of Respondent's witnesses, which I credit,
that Respondent was experiencing an unusual number of
production problems throughout the spring and summer
months. Large quantities of piecegoods from a number of
major suppliers were delivered too late for Respondent's
production schedules and delivery commitments to its cus-
739
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tomers. Piecegoods which were delivered were in such de-
fective condition that Respondent and its contractors had
to engage in extra work and production techniques to at-
tempt to salvage portions of the material in an effort to
meet commitments to customers. The record clearly estab-
lishes that this combination of calamities resulted in severe
curtailment of the flow of finished goods through the in-
spection and shipping departments. Thus, when Weingart-
en toured the factory in May, he could easily observe that
there was not sufficient work to keep the employees busy in
those two departments and directed his supervisors to effec-
tuate a layoff.'6 The mere fact that Taus and Bethune de-
layed implementation of Weingarten's instructions, because
they felt the production problems would be resolved, in no
way casts doubt on the legitimacy of the business justifica-
tion responsible for the decision to lay off the employees.
The General Counsel's assertion that the layoff decision
was unlawful because it came about at a time when the
organizing activity had increased is based on nothing more
than a mere suspicion which does not overcome the hard
evidence of business justification presented by Respondent.
Capital Baker's Inc., 236 NLRB 1053, 1058 (1978); Syncro
Corporation, 234 NLRB 550, 555 (1978); Zim Textile Corp.,
218 NLRB 269 (1975).
Nor do I find that the employees laid off by Bethune and
Moreno were selected for unlawful reasons. In reaching this
conclusion, I am not unmindful of the strong union animus
expressed in Bethune's speech to the employees on June
26'7 and by Moreno to a small group of employees follow-
ing the speech. However, antipathy toward the Union's or-
ganizing effort, standing alone, is not sufficient to establish
unlawful motive.
There is not a scintilla of evidence in the record which
establishes that Bethune had any knowledge of union ac-
tivities or union support by any of the employees working
for him. It is evident from the testimony that Respondent's
officials and supervisors were aware of the organizing effort
when it began in January. Indeed, as Taus stated, "it was
impossible not to see the organizers outside the factory
handing out leaflets to the employees." But there is no evi-
dence that Bethune had any specific knowledge of any sup-
port for the Uniop by the employees in his department.
Furthermore, of the I I employees laid off by Berthune 5
were subsequently recalled in October, thus dispelling any
inference they were laid off because Bethune wanted to get
rid of employees who supported the Union.
In the inspection department, on the other hand, it is
clear that Moreno did have knowledge of the union activi-
ties of some of the employees she subsequently selected for
layoff. She was told that Herrera, Jimenez, Maria Elena
Moreno, and Aurora Guillen went to the union meeting on
l The General Counsel's contention that Weingarten did not inspect the
Company's records to ascertain the precise state of Respondent's business is
totally irrelevant. It is evident that Weingarten, as the chief executive officer,
conferred constantly with Taus about the production problems and was in a
position to make an informed business judgment regarding the amount of
work available for the employees in the inspection and shipping departments
without resorting to the production records.
?1 Bethune's comments to the employees are not alleged to be a violation
of Sec. 8(a)(I) in the complaint, nor do I make such a finding here.
June 6. She also knew from her conversations with Patino
that Patino supported the Union. However, of these five
employees, only Guillen, Jimenez, and Patino were chosen
for layoff. There is no evidence in the record that Moreno
had any knowledge of the union activities or sympathies of
any of the other employees who were laid off, even though
some of the employees testified they signed cards and
mailed them in to the Union.
While the record does show that Guillen and Jimenez
had received pay increases several months before the layoff,
it also shows that other employees who were considered
good workers by Moreno, i.e., Evangelina Cornejo'8 and
Juana Martinez, were also let go because they were short-
term employees or possessed fewer skills than employees
who were retained. The record also reflects that Hernandez
was referred to a job with another employer by Moreno and
cautioned not to mention the Union when she applied.
However, it cannot be said whether Moreno told Hernan-
dez not to mention the Union because of her own beliefs or
because of knowledge of the working situation at the pro-
spective employer's plant.
All of the evidence offered by the General Counsel
merely rises to the level of a suspicion regarding the motive
of Moreno in selecting the employees from her department
for layoff. In my judgment, it cannot be said to preponder-
ate in favor of a conclusion that the employees from the
inspection department were selected for layoff because they
had engaged in union activities or were supporters of the
Union. Accordingly, I find that this allegation of the com-
plaint should be dismissed.
CONCLUSIONS OF LAW
I. Respondent, Jody Tootique, is an employer within the
meaning of Section 2(2) of the Act engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By interrogating an employee to ascertain her union
sympathies, Respondent has violated Section 8(a)(1) of the
Act.
3. Respondent has not in any other manner committed
violations of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair la-
bor practices within the meaning of Section 8(a)(1), it shall
be ordered to cease and desist therefrom and take affirma-
tive action designed to effectuate the policies of the Act. In
light of the fact that the majority of Respondent's employ-
ees are Spanish speaking, Respondent shall be required to
post the remedial notice to its employees in both English
and Spanish versions.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
3a Cornejo was subsequently recalled by Moreno in August. She was the
only one of the employees from the inspection department so recalled.
740
JODY TOOTIQUE
ORDER 9
The Respondent, Jody Tootique, Los Angeles, Califor-
nia, its officers, agents, successors, and assigns, shall:
i. Cease and desist from:
(a) Interrogating employees in order to solicit responses
which would reveal their sympathies toward the Union.
(b) In any like or related manner, interfere with, restrain,
or coerce employees in the exercise of rights guaranteed
them by Section 7 of the National Labor Relations Act, as
amended.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
19 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
(a) Post at its Los Angeles, California, facilities copies of
the attached notice marked "Appendix."'2 Copies of said
notice, on forms provided in English and Spanish by the
Regional Director for Region 31. after being duly signed by
Respondent's authorized representative, shall be conspicu-
ously posted immediately upon receipt thereof, and b main-
tained for sixty (60) consecutive days thereafter in places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 31, in writ-
ing, within 20 days of the date of this Order, what steps
Respondent has taken to comply herewith.
2 In the eent 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
741