Judy Hornby Designs, Inc.

National Labor Relations Board - Board Decisions

May 30, 1986

279 N.L.R.B. 1271 (N.L.R.B. 1986)

JUDY HORNBY DESIGNS 1271
Judy Hornby Designs, Inc. and Blouse , Skirt &
Sportswear Workers' Union , Local 23-25 , Inter-
national Ladies ' Garment Workers ' Union,
AFL-CIO. Case 2-CA-18487
30 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 21 June 1983 Administrative Law Judge Joel
P. Biblowitz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the Charging Party filed a brief in opposition
to the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions only to the extent consistent with this
Decision and Order.
1. The judge found that the Respondent violated
Section 8(a)(3) and (1) of the Act by terminating
employee Aldofina Lozano because of her union
activities. We disagree. In order to establish such a
violation, the General Counsel must make a prima
facie showing that the employer made a decision to
terminate an employee and that this employee's
protected conduct was a motivating factor in the
employer's decision. Wright Line, 251 NLRB 1083,
1089 (1980). In the instant case no such prima facie
showing was made.
Lozano testified that in October she requested to
work only 3 days per week during December. The
Respondent refused her request. Again, the day
before leaving for the Thanksgiving weekend,
Lozano asked to work only 3 days per week. The
Respondent's production manager, Schoenfeld, told
Lozano that it would be better to take the month
off than to work a reduced schedule. Although
Lozano offered to work "off the books," the Re-
spondent declined. Lozano decided to take the
month off. Schoenfeld made no promise that
Lozano could return in January.
In late December Lozano called and asked to
return to work. The Respondent denied her request
because of lack of work. However, on two or three
occasions in January and February 1982 the Re-
spondent attempted unsuccessfully to contact
Lozano by telephone and offer her reemployment.
Lozano did, in fact, return to work for 6 weeks in
June 1982.
The judge found pretextual the Respondent's
reasons for not allowing Lozano to work part-time,
to work "off the books," or to return to work in
January, and concluded that Lozano was "dis-
charged" because of her union activities.
We do not agree. Although Lozano may have
been a good worker and the Respondent may have
allowed another employee to work "off the books"
for a period of time , Lozano herself voluntarily in-
terrupted her employment with the Respondent by
deciding to take the month of December off after
giving only a few hours notice to the Respondent.
We cannot conclude, on the basis of the record
evidence, that the' Respondent's refusal to accept
Lozano's own terms for continuing work was dis-
criminatorily motivated. Nor can we conclude that
the refusal, on short notice, to grant Lozano's re-
quest for special, treatment was motivated by any-
thing other than ordinary business considerations.
Similarly, we do not find that the Respondent's
short delay in accepting Lozano's offer to return to
work was discriminatorily motivated. Although the
judge found "unpersuasive" Schoenfeld's testimony
that she attempted to contact Lozano by telephone,
we will not conclude that, short of calling Lozano
in the evening or sending a letter, the Respondent
was not "serious" about reemploying Lozano. If
the Respondent had not wanted to reemploy
Lozano for discriminatory reasons, it could have
dispensed with any and all attempts to reach her. It
does not seem unusual , considering the nature of
the Respondent's business, for it to rely solely on
daytime telephone calls to recall an employee. Fur-
thermore, the Respondent reemployed Lozano in
June 1982 after she became unemployed.
Thus, in the circumstances of this case, the Gen-
eral Counsel failed to establish that the Respondent
ever, in fact, terminated Lozano. Further, the Gen-
eral Counsel failed to prove that the Respondent
took any action against Lozano because of her
union activity.2 Accordingly, we shall dismiss this
portion of the complaint.
2. Relying on Lozano's discharge and President
Hornby's threat to close the shop, the judge found
a bargaining order warranted. NLRB v. Gissel
' The Respondent has excepted to some of the judge's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 Chairman Dotson also disagrees with the judge's inference that the
Respondent had knowledge of Lozano's union activity There was no
direct evidence of employer knowledge However, the judge , essentially
relying on the "small plant doctrine," inferred knowledge The Chairman
would not rely on the small plant doctrine Further, in the Chairman's
view, the evidence adduced by the General Counsel does not warrant an
inference of employer knowledge
279 NLRB No. 168
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Packing Co., 395 U.S. 575 (1969). We find that the
threat can be remedied without a bargaining order.
On 6 or 8 December Union Respresentatives
Zinn and Banyai, together with employee Vega, at-
tempted to enter a door to the Respondent's prem-
ises. Vega entered, but the union representatives-
who had identified themselves-were met by
Schoenfeld who attempted physically to prevent
their entry. The Respondent's president, Judy
Hornby, arrived. Banyai said he wanted to discuss
a contract. Hornby yelled and said she did not
want to meet with them, that they should leave,
and that she would call the police. Hornby then
said that she would close the shop before recogniz-
ing the Union or having anything to do with the
Union. A brief shoving match followed, and the
union representatives left.
Although the threat was uttered in the presence
of an employee and was later disseminated to four
other employees by a union official, the remark
was a heated and isolated reaction to a forcible
entry by union representatives onto the Respond-
ent's premises rather than a calculated threat to
unit employees that would tend to undermine ma-
jority strength and impede the election processes.
ORDER
The National Labor Relations Board orders that
the Respondent, Judy Hornby Designs, Inc., New
York, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Threatening its employees with the termina-
tion of operations should they choose to be repre-
sented by the Union as their collective-bargaining
representative.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action to effec-
tuate the policies of the Act.
(a) Post at its office at 530 Seventh Avenue,
New York, New York, copies of the attached
notice marked "Appendix."3 Copies of the notice,
on forms provided by the Regional Director for
Region 2, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
MEMBER DENNIS , dissenting in part.
Contrary to the majority, I would adopt the
judge's decision in all material respects, including
his findings that employee Aldofina Lozano was
unlawfully discharged and that a remedial bargain-
ing order is warranted.'
' I do not, however, adopt the ,fudge's comment in fn 14 of his deci-
sion that employee turnover is not a relevant consideration in deciding
whether to issue a bargaining order See my concurring opinion in Regen-
cy Manor Nursing Home, 275 NLRB 1261 (1985). In this case, the Re-
spondent is actually claiming unit expansion , rather than employee turn-
over, for the Respondent alleges that six additional employees were hired
since the events in question In my view, mere expansion of the unit did
not dissipate the coercive effects of the Respondent 's hallmark violations,
which were widely disseminated among employees still in the Respond-
ent's employ
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT threaten our employees that we
will terminate our operations if they choose to be
represented by Blouse, Skirt & Sportswear Work-
ers' Union, Local 23-25, International Ladies' Gar-
ment Workers' Union, AFL-CIO, or any other
labor organization.
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 Section 7 of
the Act.
JUDY HORNBY DESIGNS, INC.
Michael DiMattia, Esq., for the General Counsel.
Martin Gringer, Esq. (Milman, Naness and Pollack), for
the Respondent.
Nicholas F. Lewis, Esq. (Lewis Greenwald & Kennedy), for
the Charging Party.
8 If 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 Nation-
al 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 "
JUDY HORNBY DESIGNS 1273
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWiTZ, Administrative Law Judge. This
case was tried before me in New York, New York, on
March 9, 10, and 11, 1983. The complaint, which issued
on February 1, 1982, and was based on an unfair labor
practice charge filed by Blouse, Skirt and Sportswear
Workers' Union, Local 23-25, International Ladies Gar-
ment Workers' Union, AFL-CIO (the Union), alleges
that Judy Hornby Designs, Inc. (Respondent) violated
Section 8(l)(3) and (5) of the Act by offering sick leave
pay and wage increases to its employees (in October and
November 1981, respectively) to induce them to discon-
tinue their support for the Union, granted its employee,
Aldofina Lozano, paid sick leave for the same purpose,
discharged Lozano on January 4, 1982, because of her
activities on behalf of the Union, threatened its employ-
ees about December 8, 1981, with closing its facility to
induce them to discontinue supporting the Union, and re-
fused to recognize the Union, the representative of a ma-
jority of its employees in an appropriate unit, while, at
the same time , engaging in conduct that would preclude
the holding of a fair election among these employees.
The parties stipulated to the appropriate unit and the em-
ployees employed on October 23, 1981, the date the
Union allegedly obtained its majority status; Respondent,
however, denied the Union's majority status, that any re-
quest for recognition was made, that Lozano was dis-
charged, or that it committed any of the unfair labor
practices alleged
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the parties, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent , a New York corporation with its princi-
pal office and place of business located in New York
City, is engaged in the manufacture and nonretail sale
and distribution of dresses and related products. Re-
spondent , annually , sells and ships from its facility prod-
ucts, goods, and material valued in excess of $50,000 di-
rectly to firms located outside the State of New York.
Respondent admits, and I find , that it is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
11. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE FACTS
A. The Unit
The parties stipulated that the following consititutes
the appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All full time and part time production employees,
including machinists , cutters and sample makers em-
ployed by Respondent at 530 Seventh Avenue,
New York, New York; excluding all other employ-
ees, office clerical employees, sales persons, book-
keepers, managerial employees, guards and supervi-
sors as defined in the Act.
The parties also stipulated to the names and job classi-
fications of Respondent's employees employed as of Oc-
tober 23 and November 24, 1981; all had the job classifi-
cation of machinist, except for Hector Vega, who was a
cutter:
Rosario Gargano
Virginia Baron
Elsa Rojas
Maria Vasquez
Mary Bravata
Hector Vega
Aldofina Lozano i
Finally, Respondent admits that the following are su-
pervisors within the meaning of Section 2(11) of the Act
and agents of Respondent: Judy Hornby, president;
Dorothy Schoenfeld, production manager and pattern
maker; and Alan A. Larrabure, vice president.
B. Organization of Respondent's Employees
About September 198 1,2 the Union began investigating
Respondent to determine whether it was associated with,
or contracting work to, or for, Vera Maxwell, a compa-
ny under contract with the Union Harris Zinn, director
of organizing for the Union, had some of his agents in-
vestigate Respondent's business activities. In addition,
about September, he made a telephone call to Respond-
ent's premises and asked to speak to a principal of Re-
spondent; a Mr. Henman, office administrator of Re-
spondent, spoke to him and said that he was a principal
of Respondent. Zinn told Henman that he wanted to
speak to one of Respondent's principals "with regard to
having an agreement with the ILGWU." Henman asked
why he was bothering Respondent and Zinn said that he
was not bothering them, that he believed there was some
i During the hearing the issue of Lozano's supervisory status arose
She was the highest paid machinist (she earned $350 a week on the week
ending November 7, 1981, while the weekly salary of the others ranged
from $270 to $290 Vega, the cutter, was paid $400 a week) Dorothy
Schoenfeld , the admitted supervisor and agent of this unit, consisting of
seven employees at the time , was paid $600 weekly The evidence estab-
lishes that Lozano had no authority to hire or fire employees on her own
initiative, or to effectively recommend such Rather , it appears that she
was paid more than the other machinists because she was a highly pro-
ductive employee who, at times , assisted Schoenfeld in training new em-
ployees, giving Schoenfeld her opinion on their work, and assisting them
when their work was not satisfactory It appears that Lozano performed
these tasks because of her ability as a machinist and her ability to commu-
nicate with the employees in Spanish , which Schoenfeld could not do As
part of her work, Lozano also separated the cut dresses by sizes Howev-
er, as none of these tasks require the exercise of independent judgment, I
find that Lozano was not a supervisor within the meaning of Act Ohio
Power Co v NLRB, 176 F 2d 385 (6th Cir 1949), Republic Corp, 260
NLRB 486 (1982)
2 Unless otherwise indicated, all dates herein refer to 1981
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
association between Respondent and Vera Maxwell.
Henman said that Respondent had nothing to do with
Vera Maxwell.
In the first week of October, Zinn went to Respond-
ent's premises in an attempt to talk to one of its princi-
pals. He introduced himself to the receptionist, gave her
his card, and said that he wished to speak to one of Re-
spondent 's principals . The receptionist went into the
backroom and returned saying that there was nobody
available to speak to him. Zinn testified that, at that time,
he saw a woman standing in the doorway whom he later
learned was Judy Hornby, although his affidavit given to
the Board makes no mention of seeing her at that time.
At that point, Zinn left Respondent's premises.
At the end of the second week in October, Zinn, his
organizer, Ernesto Macias, and his assistant , Lou Bertot,
met with Hector Vega. Macias introduced Vega to Zinn
and they asked Vega what the working conditions were
at Respondent's facility. Vega told them that Judy
Hornby had promised them a wage increase, but had not
lived up to that promise and the employees needed a
union to get what they were entitled to. Zinn told Vega
that he should talk to the other employees about the
Union; that Macias would get him authorization cards,
and that if enough employees signed them the Union
could demand that Respondent recognize it. That
evening Zinn gave authorization cards to Macias and
told him to give them to Vega.
Lozano testified that in October she was given the
blank authorization cards by representatives of the Union
in the lobby of the building where Respondent is located.
(It was never explained why she, rather than Vega, was
given the cards.) She was told to ask the employees with
whom she worked to fill out the cards, and then she
should return them to the Union. On October 21, she
signed a union authorization card. Vasquez, Rojas, Gar-
gano , and Vega also signed authorization cards for the
Union; Lozano gave the cards to the employees at their
work location or in the ladies room.3 These employees
signed the cards on that day or the following day and
returned them to Lozano. Lozano testified that after re-
ceiving these signed authorization cards, either she or
Vega mailed them to the Union.
C. The Alleged Requests for Recognition
After receiving the signed authorization cards, Zinn
told Bertot that they had the authorization cards from
Respondent's employees and that Zinn wanted him to ar-
range to go to Respondent and make a recognition
demand. Bertot (who, at the time, was assistant director
of organization for the Union) testified that about Octo-
ber 26, he went to Respondent's premises shortly before
noon and entered the premises through a side door. He
was confronted by a female employee and he gave her
his business card and asked to speak to Judy Hornby.
She took the card and walked into a backroom; she re-
' Baron testified that Lozano asked her to sign an authorization card
for the Union while they were working next to each other at their ma-
chines, about 10 feet away from Schoenfeld 's work location , but she re-
fused They were facing away from Schoenfeld 's work location, so that
she did not know if she observed their actions
turned shortly and asked Bertot to follow her He was
introduced to Judy Hornby (he had never met her
before, but he testified that he recognized her as Judy
Hornby at the hearing herein); Bertot introduced himself
and told her that Zinn had instructed him to come to her
office and tell her that the Union represented a majority
of her employees; that Zinn wanted her to call him so
that they could sit down and negotiate "some sort of
agreement ." Hornby said that she did not see any reason
why she should call Zinn as she did not want a union in
her shop. She attempted to return his business card to
him, but he told her to keep it because Zinn was expect-
ing a call from her, and he left. Hornby denies that she
ever had such a meeting with Bertot. She testified that
the only occasion when she personally met with a repre-
sentative of the Union was in September, or earlier,
when a man from the Union (whose name she does not
remember) came to her premises and asked her if she
was doing any outside contracting and where her work
was being performed. She informed him that all the
work was performed in her shop; they did not perform
any outside contracting. She was told that the Union be-
lieved that she was performing work in Brooklyn, and
Hornby denied it.
Alan Larrabure (Hornby's husband) testified that about
October 21 and 23, while he was on Respondent's prem-
ises, he heard a disturbance in the production area; he
believes that Schoenfeld told him that a representative of
the Union was walking through the area. Larrabure went
into the factory area and asked this individual (Michal
Brennan) what he was doing; he said that he was from
the Union and wanted to talk to somebody regarding the
Union. Larrabure told him that there was nobody
present whom he could talk to, and asked him to leave.
He then told Larrabure that he wanted him to call Zinn
and gave him his business card, which also contained
Zinn's name handwritten on the card.
About October 26, Larrabure called Zinn, introduced
himself as one of the principals of Respondent, and ex-
plained that he stopped one of the union representatives
on his premises and he was asked to call Zinn. He told
Zinn: "I'd like to set up a meeting to see what your
problem is, why you are sending in these people and all
you're doing is disrupting the staff." He informed Zinn
that he was leaving on a business trip to the Orient for a
month, and they arranged to meet on November 24. Lar-
rabure testified that Zinn made no mention of a contract
in this conversation, never said that he wanted to negoti-
ate with him, nor what he wanted to discuss with Larra-
bure, and never told Larrabure that he had authorization
cards from a majority of Respondent's employees; ac-
cording to Larrabure's testimony, Zinn never said why
he wanted to speak to him and Larrabure never asked
Zinn to delay taking any action until he returned from
his trip.
Zinn testified that Larrabure called him later in the
day and said that Bertot had gone to Respondent's prem-
ises to request recognition. Zinn asked him how he was
and whether he could speak for Respondent, and Larra-
bure said that he could. Zinn told him that he wanted to
sit down and discuss a union agreement with one of Re-
JUDY HORNBY DESIGNS 1275
spondent's principals. Larrabure said that he was willing
to sit down and talk with him, but that he was leaving
on a month 's business trip; they agreed to meet on No-
vember 24; Larrabure asked to take no action in his ab-
sence and Zinn agreed.4
Zinn and Larrabure met on November 24 at the
Union's office. Zinn testified that after the introductions
he told Larrabure that the Union had signed authoriza-
tion cards from a majority of Respondent's employees
and he wanted to discuss with him entering into an
agreement with the Union covering these employees.
Larrabure asked, "[H]ow do I know that you represent
the employees of my firm?" Zinn said he had the author-
ization cards with him and Larrabure said, "[O]kay,
what do you want?" Zinn gave Larrabure a copy of a
union contract and they discussed its terms; he also told
Larrabure that he wanted a 10-percent wage increase
across the board. During the discussion of the terms of
the agreement, Larrabure said, "I'm prepared to give my
workers all that you 're asking , except I don't want the
Union." Zinn said that as the cost would be the same
why should the Union not be involved, and Larrabure
said, "I don't want to have a union tell me what to do."
Zinn told him that it was alread beyond that point as the
employees had already designated the Union as their col-
lective-bargaining representative They discussed the
agreement further, and Larrabure said he would look
over the agreement and get back to him. The following
day, Larrabure called Zinn and asked him to explain a
portion of the agreement, which he did; Larrabure said
he would get back to him, but he never did. Zinn called
Respondent's office and left messages, but respondent's
principals never returned his calls.
Larrabure testified that he introduced himself to Zinn
who told him that his employees had authorized the
Union to represent them in negotiations with Respond-
ent. Larrabure said that was the first he knew of it, and
asked Zinn what the Union was asking for. Zinn gave
him "copies of the union bylaws, and he had a brochure
on the union functions." (This was, in all probability, a
copy of the Union's basic agreement.) Larrabure looked
through this literature and informed Zinn that the union
wages were $4 an hour, while Respondent's employees
were paid $7 or $8 an hour, and why would the Union
organize Respondent in this situation. Zinn repeated that
he represented the employees. The hour- long meeting
ended with Larrabure saying that he would later get in
touch with Zinn again . He never contacted Zinn again
because he spoke to an attorney who informed him of
the Board's functions; on December 1, Larrabure filed an
RM petition at the Board; on December 11, there was a
hearing on this petition which lasted for 1 day. After the
filing of the unfair labor practice charges and complaint,
Respondent, on February 4, 1982, requested permission
to withdraw its petition; on February 16, 1982, the Re-
gional Director for Region 2 issued an order approving
request to withdraw petition.
Zinn's affidavit , given to the Board , makes no mention of this request
by Larrabure
D. The Alleged Unfair Labor Practices
1 Offer and grant of sick leave
Lozano testified that in November she was sick for 2
days and did not report for work on those days. She was
paid for the 2 days that she was absent, and she asked
Schoenfeld why she was paid:
[S]he told me that girls like me, when I told her
about the check, that she paid me the whole week
. . . that were doing the work I was doing, yes,
that's why I got the five days.
Lozano testified (rather vaguely) about an incident
when another employee was out sick for a day or two;
Lozano could not remember when this occurred ("It
might be before . . . [the authorization cards were
signed] but the employee informed her that she had not
been paid for the period she was absent. Schoenfeld testi-
fied that both before and after September 1 employees
received sick leave benefits.
Hornby and Larrabure testified regarding Respond-
ent's history to defend this allegation and the allegation
of the unlawful wage increase. Hornby previously
owned and operated her own company, Judy Hornby
International . After some financial difficulties she
brought in a partner, Alan Freeman, who acquired a ma-
jority interest in the Company. Whereas Hornby had
previously given her employees regular yearly wage in-
creases and sick leave, Freeman was against both. As re-
gards sick leave benefits, Judy Hornby gave the employ-
ees 5 days a year sick leave coverage prior to Freeman's
entry into the Company; Hornby testified that after Free-
man's involvement with the Company began, she contin-
ued to grant her employees the same sick leave benefit
without informing Freeman of it.
2. Offer of wage increases
The General Counsel's case regarding the alleged un-
lawful offer of wage increases is based solely on the testi-
mony of Lozano, as was true of its case regarding the
offer and granting of sick leave. Lozano testified on
direct examination that "around November" Schoenfeld
spoke to her at the office (no other employee was
present) and told her that Respondent's business was
doing well and the employees were going to have a
raise . On redirect examination, she again testified that
Schoenfeld made no reference to the Union in this con-
versation; she was then shown the affidavit she gave to
the Board; after looking over the pertinent part of this
affidavit she testfied: "[W]hen we spoke about the raise,
yes, and about sick days that they were going to give,
she told me, that is what the union gives . . . and that
the other girls were going to get a raise."
As stated, supra, Hornby and Larrabure testified that
the increases were given to the employees in late 1981
because although Freeman was involved with Judy
Hornby International, the employees received no wage
increases . Hornby testified that prior to Freeman's in-
volvement with the Company, its employees had re-
ceived increases, generally, on a yearly basis, but by the
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
summer of 1981, the employees had not received a wage
increase in approximately 18 months. About May or
June, Schoenfeld told her that the employees were
asking her about raises; Hornby told her to tell the em-
ployees that she was negotiating to buy out Freeman's
interest in the Company and that they should be patient
for a few months until that was complete. By September,
Hornby and Larrabure had accumulated enough capital
to buy out Freeman's interest in the Company; the trans-
action was completed in early October; shortly thereafter
(in the first or second week of October) Hornby told
Schoenfeld to tell the employees that they would soon
be receiving a raise , and the raises were given to the em-
ployees in the first week of November; the raises were
approximately 15 percent for Vega, 10 percent for the
other employees, except that Lozano received no wage
increase. The next wage increase the employees received
was in January 1983.
Schoenfeld testified that beginning in the summer of
1981, she had informed Respondent's employees "that
they would be getting their raise, as soon as it was possi-
ble to do it, as soon as the company, the present existing
company would disband, and the new one would be
formed." Employee Virginia Baron (who did not sign an
authorization card for the Union) testified that she began
working for Respondent in July; at that time Schoenfeld
told her that if she worked out she would get a raise
"when Judy and Alan dissolve their partnership, because
they were right in the midst of it at that time."
3. December threat to close 5
Zinn, Union Respresentative Ed Banyai, Hornby, and
Schoenfeld each testified about an attempt by the union
representatives to get into Respondent's premises on De-
cember 6 to see Hornby; all agree that it developed into
a shoving match of sorts; however, the witnesses dis-
agree whether Hornby made a threat at this time. Be-
cause the witnesses' description of this incident might
affect their overall crediblity (and not because this alter-
cation is substantively relevant to the ultimate determina-
tion) their testimony will be discussed fully.
Zinn testified that early that morning he and other
union representatives waited outside the building in
which Respondent is located; Vega identified Respond-
ent's employees for him and they told the employees that
they wanted to meet with them and inform them about
what was transpiring with their negotiations with Re-
spondent All except approximately two of Respondent's
employees went with them to the Union's office. At that
point they told the employees that they had not been
successful in attempting to negotiate with Respondent;
that Respondent had not been returning the Union's
calls, and they were hopeful that the work stoppage that
day would convince Respondent of the employees' sup-
port for the Union. Zinn told them that he, Banyai, and
Vega would go to Respondent's shop to attempt to speak
to one of Respondent's principals, while the other em-
ployees remained in the union office. They arrived on
the floor where Respondent is located and rather than
use the showroom door they knocked on the door to the
5 It is unclear whether this event occurred on December 6 or 8
shipping and receiving department. Somebody asked:
"Who's there?" and Vega said, "[ I]t's me ." The door
opened and somebody on the other side of the door said
to Vega, "[W]here have you been?" as Vega walked in
the door. (The credibility conflicts commence at this
portion of the story.) Zinn and Banyai "got about as far
as in front of the doorway" announced who they were
and Schoenfeld said , "[Y]ou can't come in here, we don't
want you gangsters." Zinn and Banyai were standing in
the doorway, but it is clear from his testimony whether,
at this point, there was a physical attempt by Schoenfeld
to push them off the premises and a corresponding at-
tempt by Zinn and Banyai to remain on the premises.
About that time, Hornby arrived and Banyai said that
they would like to meet with a representative of Re-
spondent to discuss a contract; Hornby yelled that she
did not want to speak to them and they should leave,
and threatened to call the police; Hornby then said (ac-
cording to Zinn's testimony): "I don't want to have any-
thing to do with you gangsters, and I would close the
shop before I would have anything to do with you." (At
this time, Vega was approximately 6 feet behind
Hornby.) There then developed "a little shoving match
as to whether we were going to stand in the doorway or
be pushed out into the hallway. So we moved away and
the door was slammed shut." Zinn testified that this
entire incident occurred within a period of 50 seconds to
a minute . He and Banyai waited downstairs for about 10
minutes ; Vega came down; and they returned to the
union hall. At the hall he told the employees that
Hornby and Schoenfeld both screamed at them and said
that they would not negotiate with gangsters, and
Hornby said that before she would have a union in her
shop she would close the shop. The employees then re-
turned to work.
Banyai testified that when Vega entered Respondent's
premises, Banyai was behind him. Banyai "got in about a
half a foot" and identified himself and said that he
wanted to see Hornby. Schoenfeld said that Hornby was
not there and began screaming for them to get out; she
then yelled to the rear of the shop for someone to call
the police Banyai's testimony regarding his position
during this period is unclear; he never admitted to a
shoving match with Schoenfeld or that he put his foot in
the door to prevent it from being closed. The closest he
came to a description of the situation was: "[I]f I was
inside of the shop, both of my feet were inside" and that
he was kept from entering Respondent's premises by "a
hysterical woman." Hornby then entered the area and
said that if they did not leave she would call the police.
She then said, "[R]ather than have a union, I'd close the
shop first " (Banyai testified that when they first entered
the premises he was about 6 inches behind Vega, but he
did not know where Vega was at the time Hornby made
her threat because: "There was a lot of shouting going
on.") At that point, he and Zinn left the premises.
Schoenfeld testifed that between 10 and 11 a.m. the
doorbell rang and when she asked who it was, Vega
said, "[I]t's me , Dorothy, let me in." She opened the
door, "and he's got these two big men with him in back
of him. I really became very frightened. I let him slip in
JUDY HORNBY DESIGNS
and I slammed the door shut." She later testified that as
soon as she opened the door she saw two strangers with
Vega, and therefore she only opened the door wide
enough for Vega "to slide through."6 Schoenfeld then
used her body weight to close the door, while Banyai
with a foot in the door was attempting to push the door
open. During this period of pushing at the door,7
Schoenfeld asked Banyai to leave the premises, but he
refused During this period only Banyai was attemptng
to push the door open; Schoenfeld testified that she
could see out of the corner of her eye that Zinn "stood
way back" in the hallway during this period. Despite
Banyai 's efforts, he was unable to push his way into the
premises. At that point Carol Wagner, Respondent's
bookkeeper (who, according to Schoenfeld, is a bigger
woman than she is), told Schoenfeld that she would hold
the door while Schoenfeld8 got Hornby, which she did.
She told Hornby that somebody was attempting to get
into the premises and Wagner was pushing on one side
of the door while Banyai was pushing on the other side,
with "only .. . his foot in the door." Banyai was saying
that he wanted to talk to Judy, and Hornby told Schoen-
feld to call the police, which she did. She testified that
Hornby also told Banyai, "[D]on't call me Judy," but she
could not remember anything else that Hornby said at
this time ; she testified that she could not remember
where Vega was at this time . Hornby then asked Zinn
and Banyai to leave the premises which they did.
Hornby testified that the first she knew of the events
of that day was when Schoenfeld approached her and
told her that Vega had come into the back with two
union men and she was attempting to keep them out. She
and Schoenfeld immediately went to the area ; when they
arrived there, nobody was pushing or holidng the door
for Respondent and Banyai was standing inside the door-
way, while Zinn was outside, in the hallway.9 Schoen-
feld immediately began pushing the door in an attempt to
force Banyai out; Banyai or Zinn said that they wanted
to speak to Judy; Hornby said , "[D]on't call me Judy,
my name is Ms. Hornby." They left shortly thereafter.
Hornby testified that she never said that she would
rather close the shop than have a union and that during
the period of this disturbance, Vega was in the same
room and working area where these events took place
and she "presumes" that he could hear the discussion
that was taking place because "voices were certainly
loud enough."
9 Schoenfeld testified that about the time he entered the premises,
Vega identified Zinn and Banyai as representatives of the Union
7 In answer to a question from me concerning Banyai's inability to
push the door open , Schoenfeld testifed- "I used to lift weights "
8 Schoenfled testified that she was very nervous during this confronta-
tion and therefore remembers less than she might otherwise remember,
for example , she did not remember exactly where Vega was after he en-
tered the premises although on direct examination she testified that he
was at his cutting table She did testify, however, that the two employees
who reported for work that morning were in the work area (about 40
feet by 80 feet without partitions ) at that time
At another point she testified that Banyai was "standing" in the door-
way with his foot in the door , that he was "actually over the threshold "
1277
4 Termination of Lazano's employment
Lozano testified that in October she told Schoenfeld
that she wanted to work only 3 days a week in the
month of December because her high income and her
husband's income had resulted in a high income tax;
Schoenfeld refused that request A day or two before
leaving (after the Thanksgiving weekend) she repeated
the request to Schoenfeld, on this occasion Schoenfeld
told her that rather than working 3 days a week "it was
better that I should take one month off, so I took the
month off." In the last week of December, she called
Schoenfeld and said that she was ready to begin working
in the first week of January; Schoenfeld told her that she
would have to discuss it with Hornby, that the materials
had not yet arrived. Later that week she called Respond-
ent's office again; this time Schoenfeld was not in and
she spoke to Henman, Lozano told him that she was
ready to begin working the following week and he said
there was no work. Shortly thereafter, Lozano obtained
employment elsewhere; about June 1982, she was tempo-
rarily laid off from the job; when she applied for unem-
ployment benefits she listed her employment with Re-
spondent. When Respondent was notified of her unem-
ployment, they employed her for approximately 6 weeks
beginning in June. At the end of this period, her other
employer called her back and she again left Respondent's
employ.
Schoenfeld testified that Lozano told her that she and
her husband were earning too much money and paying
too much in taxes, and "I'm going to have to take a
month off, until the first of the year." Schoenfeld's re-
sponse was "I wouldn't like her to do it, I wouldn't want
her to do it, I need her, I'm dependent on her, but if she
tells me she has to, I can 't say, you mustn't, you know."
She also told her: "This is my busiest time , I need you."
The next time that Lozano spoke to Schoenfeld, about
not working in December, was 2 hours before the end of
her last day of work in late November; she told Schoen-
feld that she was going to take the month of December
off; Schoenfeld testified that she was surprised because
Lozano had not spoken about it for a month and she felt
that she had changed her mind. Lozano then said that if
it was any help to her she would work 3 days a week for
Respondent; Schoenfeld said that it was better not to
work at all than to work 3 days a week. Lozano then
"indicated" to Schoenfeld that if Respondent wished, she
would work the entire month for Respondent if she
could work "off the books"; this offer was refused by
Respondent. Nobody attempted to convince Lozano to
stay and she left. Schoenfeld neither told her that she
would have a job awaiting her return in January, nor if
she took off the month of December, she should not
bother to return in January.
Schoenfeld testified that during most of the month of
December business is slow . Respondent's records estab-
lish that during December only Vega, the cutter, worked
overtime hours and no production employee was hired
until January 16, 1982, when Amanda Clavell was em-
ployed at a salary of $225 per week. Respondent's
records also established that one of its employees, Bra-
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vata, worked "off the books" for a period of approxi-
mately 6 months until February 20, 1982.
Schoenfeld testified further that sometime in Decem-
ber, Lozano called and told her that she would like to
return to employment with Respondent on the following
Monday; Schoenfeld told her that she would discuss it
with Hornby. Hornby asked her if she thought it was ad-
visable and Schoenfeld said that she did not know, and
asked Hornby what she should do. Hornby decided that
it was not advisable to take her back, "because she
wasn't dependable, you know, one minute she's going,
one minute she's coming back, and we need somebody
we can count on all the time." However, according to
Schoenfeld's testimony, Hornby left the decision up to
her, and she decided not to reinstate her at that time.
Schoenfeld attempted to contact Lozano to inform her of
this, but was not able to get through to her.
Schoenfeld testified that in January or February 1982,
she called Lozano on two or three occasions for a period
of a week during the daytime, but each time there was
no answer ("We were desperate for good workers. She's
fast, she's accurate, very good."); however, she never
sent a letter to Lozano to offer her employment. Finally,
Schoenfeld testified that she was not aware that Lozano
had distributed union authorization cards to Respond-
ent's employees.
Hornby testified that about October, Schoenfeld told
her that Lozano "had asked if she could take time off,
because she was earning too much money." She told
Schoenfeld that Lozano's reason did not sound very sen-
sible or true. She told Schoenfeld that "it was totally up
to [her] to make the decision, whether she felt that she
could spare her for a month, and if she was reliable
enough to bring her back." Schoenfeld informed her that
Lozano wanted to take the month off, or possibly, to
work "off the books" for the month of December;
Hornby denied this latter request because she "absolute-
ly" did not want an employee working off the books, al-
though, as stated supra , Bravata was employed by Re-
spondent "off the books" during this period. On cross-
examination , Hornby testified that Elsa Rojas, a sample
maker, took a leave of absence from December 12
through January 23, 1982.
Hornby testified further that on November 26, when
she learned for the first time that Lozano was definitely
leaving, she learned of it 2 hours before the end of the
day; she neither spoke to Lozano nor requested that
Schoenfeld speak to her. At that point she had not yet
decided what she would do if Lozano reapplied for em-
ployment. Sometime after Christmas, Schoenfeld told her
that Lozano had told her that she wished to return to
work; at a certain point (she testified that she could not
remember when) she decided that Lozano should not be
reemployed and she instructed Schoenfeld to tell Lozano
of this. She testified that she decided not to reemploy
Lozano because she was unreliable; this was based on the
fact that "she had come to us a month prior to leaving,
saying that she wanted to work off the books And we
said , no, absolutely, she couldn't do that. She wanted to
work three days, and we said, no, she couldn't do that,
because she was in a supervisory capacity " She testified
that another example of Lozano's unreliability was
"[b]ecause she had walked out from the shop only giving
a couple of hours' notice." On cross-examination,
Hornby admitted that Lozano was a fast worker who
performed good work, and who had a good attendance
record. It was for these reasons that Schoenfeld attempt-
ed to contact her by telephone, to return to Respondent's
employ in February and March 1982, when business im-
proved. Finally, Hornby testified that she was never
aware that Lozano had been soliciting employees to sign
authorization cards for the Union.
In this regard, Hornby testified that the first contact
she had with the Union was the visit, about September,
from the union representative who inquired about where
her work was performed, as described supra. The next
definite contact was Larrabure's meeting with Zinn; he
told her that Zinn alleged that he had authorization
cards from a majority of her majority of her employees;
she told Larrabure that she did not believe it. She testi-
fied further that during October she learned from Larra-
bure, Schoenfeld, and Henman' ° that representatives of
the Union had been at her shop. She was informed that
on two or three occasions these men entered from the
back door and walked through the production area
which interrupted production; however, she never asked
Schoenfeld to inquire why they were there: "I presumed
they wanted to unionize me."
Larrabure testified that when he first saw Brennan on
October 21 or 23 (as set forth supra) he was speaking to
one of Respondent's employees (whom he can identify
by sight, but not by name).
Schoenfeld testified to two incidents in October when
she observed two union representatives walking through
the production area of the shop; she could not be more
specific on time than that they occurred in October. On
the first occasion she observed the two men" speaking
to Vega while she was a few feet away from him; she
asked Vega if there was any problem; "He said they are
the union, they want to give their cards. They want to
see Judy." She did not ask Vega how these men got on
the premises; she presumed that the door was left open
and they simply walked in because she did not hear the
doorbell ring. The same was true on their second visit,
she again observed two men; one was speaking to one of
the female employees "while one lingered behind, look-
ing around, watching the operation, and that's what
caught my eye, because any Stanger looking around, ob-
serving and sizing up the situation is treading on my
toes." Schoenfeld told the employee, "[D]on't talk to
anybody you don't know that walks in here" and the
gentlemen walked away. Schoenfeld asked Vega who
these men were and Vega told her that the men were
from the Union to see Hornby. When Schoenfeld was
asked why she allowed these men to wander through the
shop without stopping them she testified: "They looked
10 She testified that none of the production employees informed her
that union representatives had been at the shop "No, they wouldn't
know who they were, if the men walked into the place, they wouldn't
know who they were, whether they were button men or fabric men "
" When asked if she saw either of the two men in the courtroom
during this proceeding, she testified "I was very unimpressed I wouldn't
remember "
JUDY HORNBY DESIGNS
rather innocuous." Henman then came into the shop area
and brought the men into Respondent's office; Schoen-
feld did not pay any further attention because "it was not
my business, not my affair." Schoenfeld testfieid that on
neither of these occasions did she speak to the union rep-
resentatives, nor did she ask the female employee in-
volved in the second incident what the union representa-
tive said to her, nor did she tell Vega (who works clos-
est to the back door) after these incidents to be more
careful about keeping the door locked.
IV. THE ANALYSIS
A. The Alleged Unfair Labor Practices
The first allegation is that about late October 1981 Re-
spondent, by Schoenfeld "offered its employees paid sick
leave to induce them to discontinue their support for,
and activities on behalf of [the Union]." The sole evi-
dence supporting this allegation is Lozano's testimony
that she was paid for being sick for 2 days in November,
while another employee-Maria Vasquez-who was out
sick for "a day or two" told her that she was not paid
for the time she was absent from work. (Lozano's testi-
mony regarding Schoenfeld's explanation for her sick
pay is too confusing to be helpful.) However, not only is
there nothing further to support this allegation that Re-
spondent offered its employees paid sick leave (not that it
paid for the sick leave), but Lozano could not remember
with any certainty whether the Vasquez incident oc-
curred before or after the signing of the authorization
cards. I will therefore dismiss this 8(a)(1) allegation.
The next allegation is that about November, Respond-
ent, again by Schoenfeld "offered its employees wage in-
creases to induce them to discontinue their support for,
and activities on behalf of [the Union]." The raises were
given to the employees (except Lozano) approximately 2
weeks after a majority of the employees had signed cards
for the Union and at a time when Respondent was admit-
tedly aware of the Union's organizational attempt. How-
ever, as the Board stated in Fireside House of Centralia,
233 NLRB 139 at 140 (1977). "It is well settled that the
granting of wage increases and/or benefits during union
organizational activity is not per se unlawful. Rather, the
test is whether, based on the circumstances of each case,
the granting of the new wages and benefits is calculated
to interfere with the employees' right to organize." The
granting of such benefits is not per se unlawful "where
the employer can show that its actions were governed by
factors other than the pending election."
Respondent's employees had not received a wage in-
crease for in excess of 18 months. Hornby and Larrabure
testified that this was due to restrictions on their author-
ity instituted by Freeman, and that during the summer,
when they saw the "light at the end of the tunnel" they
told Schoenfeld to inform the employees that they would
be receiving an increase in a few months. This is a rea-
sonable explanation, especially considering Baron 's credi-
ble testimony that Schoenfeld told her in July, that if she
performed satisfactorily, she would get a raise when
Hornby and Larrabure dissolved their partnership with
Freeman, which event subsequently occurred less than a
month before the raises were granted Also supportive of
1279
Respondent's position is the testimony that when Vega
first met with the Union's representatives, he told them
that Hornby had promised them a wage increase, but
had not lived up to that promise. What is troubling in
this regard is the statement (which I credit) that Schoen-
feld made to Lozano regarding the wage increase and
sick pay-"that is what the union gives." However, it
appears to me that as this statement was made to Lozano
(who was the only employee who did not receive this in-
crease), it was more of an afterthought by Schoenfeld,
rather than a statement of the reason for the increase. I
therefore find insufficient evidence to establish that Re-
spondent granted wage increases to its employees in No-
vember in order to interfere with the employees' organi-
zational rights and I therefore dismiss this 8(a)(1) allega-
tion.
The next allegation is that Respondent, about Decem-
ber 8, by Hornby "threatened its employees with the
closing of its facility and loss of work to induce them to
discontinue their support for, and activities on behalf of
[the Union]."
It is at this point that credibility becomes a major
factor; Zinn and Banyai allege that Hornby said that she
would close the shop before recognizing the Union, or
would close the shop before she would have anything to
do with the Union (as Zinn testified). Hornby denies that
she said this; she testified that all she said to them was
that they should not call her Judy; Schoenfeld testified
that she was extremely nervous during this incident and
only remembered Hornby telling Zinn and Banyai not to
call her Judy Without much difficulty, I credit the testi-
mony of Zinn and Banyai over that of Hornby and
Schoenfeld: Zinn and Banyai impressed me as witnesses
who were attempting to testify in an honest and truthful
manner; their testimony varied, at times, but this is natu-
ral in reciting events that occurred 15 months earlier.
Schoenfeld's testimony regarding this incident, on the
other hand, is probably unbelievable: after observing her
and Banyai on the witness stand, it is inconceivable that
if Banyai was attempting to push the door open (as she
testified), she would have been able to stymie his efforts
(even if she used to lift weights). Also difficult to believe
is that at a certain point she transferred possession of the
door to Wagner with no loss of control. An additional
reason for discrediting Schoenfeld is due to, what I con-
sider, her inconsistent testimony about earlier visits to
Respondent's facility by union representatives: Schoen-
feld impressed me as somebody who thinks of Respond-
ent's production area as her bailiwick , and this impres-
sion was reinforced by her testimony that "any stranger
looking around , observing and sizing up the situation [in
Respondent's production area] is treading on my toes."
And yet, her testimony regarding the two occasions in
October when union representatives were present in the
shop stresses her lack of interest in their presence. For
reasons to be discussed infra (in the discussion of Lo-
zano's termination), I also do not credit the testimony of
Hornby; I therefore find that during this incident
Hornby said that she would close the shop before she
would deal with the Union
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This incident began with Vega entering the premises
while Banyai argued at the door with Schoenfeld, and
Zinn waited outside the door. Zinn testified that at the
time that Hornby made her threat to close, Vega was ap-
proximately 6 feet behind her; Hornby testified that
Vega was in the room where this was occurring and, as
the voices were loud enough, she assumes he could hear
what was being said. This is a reasonable presumption;
Vega was originally the prime supporter of the Union;
on the day in question he and four other employees en-
gaged in a concerted walkout; later, he with the two
union representatives returned to the shop where he
alone, was admitted; a pushing match and yelling imme-
diately ensued, events which Vega was clearly interested
in. I therefore find that Vega overheard the threat that
Hornby made. Although the two employees who did not
join this walkout-Bravata and Baron-were at the
premises at the time, I find insufficient evidence that
they overheard the threat being made by Hornby.
In NLRB v. Gissel Packing Co., 395 U.S. 575 at 618-
619 (1969), the Supreme Court defined the standard of
permissible predictions on the effects of unionization:
If there is any implication that an employer may or
may not take action solely on his own initiative for
reasons unrelated to economic necessities and
known only to him, the statement is no longer a
reasonable prediction based on available facts but a
threat of retaliation based on misrepresentation and
coercion, and as such without the protection of the
First Amendment . . . . As stated elsewhere, an
employer is free only to tell "what he reasonably
believes will be the likely economic consequences
of unionization that are outside his control" and not
"threats of economic reprisal to be taken solely on
his own volition." NLRB v. River Togs, Inc., 382
F.2d 198, 202 (C.A. 2d Cir. 1967).
On this basis there can be no doubt that Hornby's
statement violated Section 8(a)(1) of the Act and I so
find. NLRB v. Rich's Precision Foundry, 667 F.2d 613
(7th Cir. 1981).
The remaining alleged unfair labor practice is the ter-
mination of Lozano's employment with Respondent; the
General Counsel alleges that she was not employed off
the books or part time in December, and was not reem-
ployed in January 1982 because of her activities in solic-
iting her fellow employees to sign cards on behalf of the
Union. Respondent, in its brief, alleges a number of de-
fenses to the termination of Lozano: the first (which I
have rejected, supra) is that as Lozano was a supervisor
within the meaning of the Act, her termination did not
violate the Act under Parker-Robb Chevrolet, 262 NLRB
402 (1982). Additionally, Respondent defends that she
was never discharged, that she left at an inopportune
time for Respondent, without any firm agreement on a
date for her return, and, even if she were discharged,
there was no substantial evidence adduced regarding
knowledge of her activities on behalf of the Union or
animus by Respondent toward the Union Admittedly,
sometime in October, and again in November, Lozano
told Schoenfeld that she wanted to work 3 days a week
off the books during the month of December because her
high income, and that of her husband (a postal employ-
ee), had resulted in what they considered to be an exces-
sively high income tax . As counsel for the Charging
Party states in his brief: "While this may not make much
sense to one with a knowledge of tax laws, the fact re-
mains that this is what Ms. Lozano said." Also, admitted-
ly, when Lozano attempted to return to Respondent's
employ in late December, this request was denied, al-
though neither Schoenfeld nor Hornby had previously
informed her that if she did not work that month, she
could not return to Respondent's employ in January
1982. A careful examination of the testimony of Hornby
and Schoenfeld illustrates the transparent and pretextual
nature of Lozano's termination; Hornby testified that she
"absolutely" would not allow Lozano to work off the
books for a month, although, at the time, Bravata had
been employed by Respondent off the books for 4
months, and continued to work off the books for an ad-
ditional 2 months. In addition, Respondent would not
grant Lozano a leave of absence for the month of De-
cember, although Rojas received such a leave for the
period December 12 through January 23, 1982. Lozano's
request to work 3 days a week was refused because (ac-
cording to Hornby's testimony) "She couldn't do that,
because she was in a supervisory capacity." Not only is
this a non sequitur, but I have found Lozano not to be a
supervisor within the meaning of the Act. Further sup-
porting my finding that Respondent's termination of
Lozano was pretextual and in reality was caused by her
solicitation of employees to sign cards for the Union is
the fact that throughout the month of December none of
the machinists performed overtime work; this establishes
that Respondent managed without Lozano with no hard-
ship. Also indicative of the motive for Lozano' s termina-
tion is that Respondent hired Clavell on January 16,
1982, I find unpersuasive Schoenfeld's testimony that she
attempted to contact Lozano on two or three occasions
in January or February 1982; if Respondent were really
serious about reemploying her, she would have sent her
a letter or called her in the evening after two or three
unsuccessful attempts to contact her during the daytime.
In this regard, and further negating Respondent's posi-
tion here is that, admittedly, Lozano was a fast, accurate,
and dependable worker. On the basis of all the above, I
find that Respondent's defense herein is pretextual, and
that it terminated Lozano's employment due to her ac-
tivities in soliciting employees to sign authorization cards
on behalf of the Union, and it therefore violated Section
8(a)(1) and (3) of the Act. Wright Line, 251 NLRB 1083
(1980). 12
12 Although there was no direct proof that Respondent was aware of
Lozano's activities on behalf of the Union, I believe that this knowledge
can be imputed to it Wiese Plow Welding Co, 123 NLRB 616 (1959) This
doctrine is applicable here in that the seven employees all worked togeth-
er in the same room with their supervisor, American Grinding & Machine
Co, 150 NLRB 1357 (1965), and Lozano did not attempt to conceal her
solicitations , Baron testified that Lozano handed her a union authoriza-
tion card while they were next to each other at their machines with
Schoenfeld's work station about 10 feet away, but she does not know if
Schoenfeld observed this activity Lozano testified that she solicited some
Continued
JUDY HORNBY DESIGNS
B. The Alleged Refusal to Bargain
The parties stipulated to the appropriate unit and to
the names of the seven employees who comprised the
unit at that time ; in addition , Lozano credibly testified to
soliciting these employees to execute authorization cards
for the Union and obtaining signed authorization cards
from five of these employees on October 12, 22, and 23.
I therefore find that the Union represented a majority of
Respondent's employees on October 23.
The General Counsel 's witnesses (Zinn and Bertot) tes-
tified that on October 26, after receiving these signed au-
thorization cards, Bertot went to Respondent's premises,
met .with Hornby, and told her that the Union represent-
ed a majority of her employees and that she should call
Zinn to negotiate an agreement . Later that day, Larra-
bure called Zinn, who said that he wanted to sit down to
discuss a union agreement with one of Respondent's
principals; Larrabure told Zinn that he was authorized to
do so, and was willing to sit down and talk with Zinn,
but he was leaving on a month 's business trip; they
agreed to meet when he returned, on November 24.
Hornby denies that she ever met with Bertot, as de-
scribed above, and Larrabure testified that his October
26 telephone conversation with Zinn was general in tone
and, in it , Zinn never mentioned a contract nor that he
had authorization cards from a majority of Respondent's
employees and wanted to negotiate a collective -bargain-
ing agreement with him . I would credit the testimony of
Bertot and Zinn over that of Hornby and Larrabure; ini-
tially , as stated supra , I found Hornby to be a witness
often lacking in credibility. I found Zinn and Bertot to
be generally credible witnesses although their testimony
may not have been precisely what their affidavits state.
In addition , I find it not unreasonable that Hornby gave
to Larrabure Zinn' s business card, which Bertot had
given her, and that this prompted Larrabure to call Zinn
later that day. Finally, Zinn had been an organizer for
the Union for 24 years, the last 5 years of which he was
the director of organizing for the Union. With that expe-
rience, I cannot believe that in the October 26 telephone
conversation with Larrabure he made no mention of the
Union 's majority status or his desire to negotiate a con-
tract with Respondent. For all these reasons , I find that
on October 26, the Union made a valid request for rec-
ognition at a time when it represented a majority of Re-
spondent's employees in an appropriate unit.13
The remaining issue herein is whether the violations
that I have found were committed by Respondent (the
threat to close and the termination of Lozano's employ-
ment) warrant the issuance of a bargaining order. The
employees at their machines and others in the ladies' room As the ad-
ministrative law judge stated in Samsonite Corp, 206 NLRB 343 at 349
(1973) "In a small plant where the supervision has close contact with the
employees , and the concerted activity is carried out in an open manner,
an inference is warranted that the company does obtain knowledge "
These factors, together with the pretextual nature of Lozano' s termina-
tion, support the inference herein that Respondent was aware of Lozano's
solicitations on behalf of the Union A to Z Portion Meats, 238 NLRB 643
(1978)
13 It should be noted that even if I discredited the General Counsel's
witnesses and credited Hornby and Larrabure , a valid request for recog-
nition was made on November 24, at a time Respondent still represented
a majority of Respondent 's employees in an appropriate unit
1281
Supreme Court in NLRB v. Gissel Packing Co., supra, de-
fined the situations when a bargaining order would be
appropriate : The first were those situations when an em-
ployer had committed "outrageous and pervasive" unfair
labor practices which eliminate the possibility of holding
a fair election; the second were the "less extraordinary
cases marked by less pervasive practices" when there is a
showing, at one point , that the union had authorization
cards from a majority of the unit employees, and the
Board concludes that the extensiveness of the unfair
labor practices "have the tendency to undermine majori-
ty strength and impede the election processes " The
Court then stated that in these "less extraordinary cases,"
in determining whether a bargaining order is warranted,
the Board may consider (395 U.S. at 614-615):
the extensiveness of an employer's unfair practices
in terms of their past effect on election conditions
and the likelihood of their recurrence in the future.
If the Board finds that the possibility of erasing the
effects of past practices and of ensuring a fair elec-
tion (or a fair rerun) by the use of traditional reme-
dies , though present, is slight and that employee
sentiment once expressed through cards would, on
balance , be better protected by a bargaining order,
then such an order should issue.
It is therefore necessary to assess the effect of the two
unfair labor practice violations found in order to deter-
mine whether a bargaining order is necessary to remedy
the violations.
The Supreme Court, in Gissel, supra at 611, recognized
that a threat to close is one of the most serious violations
in determining whether a bargaining order is warranted;
in NLRB v. Jamaica Towing, 632 F.2d 208 at 212 (2d Cir.
1980), the court recognized certain violations as highly
coercive. These violations (which the court referred to
as "hallmark" violations) include the threat of plant clo-
sure and discharge of union adherents in violation of
Section 8(a)(3) of the Act. The court at 213 noted that
these "hallmark" violations are likely "to have a coer-
cive effect on employees and to remain in their memories
for a long period."
The Board also considers the threat of plant closure as
"hallmark" violations. Jim Baker Trucking Co, 241
NLRB 121 (1979); Highland Plastics, 256 NLRB 146
(1981); Martin City Ready Mix, 264 NLRB 450 (1982).
The threat of plant closure here was made by Re-
spondent's president in the presence of one employee and
the union representatives, who then transmitted it to four
of the remaining employees, when they returned to the
union office. The General Counsel, in his brief, cites
Coach & Equipment Sales Corp., 228 NLRB 440 (1977),
as well as other cases for the proposition that the Board
will presume that a threat such as this, although only
heard by one employee, was the subject of discussion
and repetition among the remaining employees. There
appears to be merit to this argument considering the
source and seriousness of the threat, and the small size of
the unit herein, although counsel for Respondent, in his
brief, refers this theory as "discredited." I find it unnec-
essary to determine this issue; the fact is that the threat
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was disseminated to four other employees on the same
day. That it was disseminated to the employees by the
union representatives does not divest this threat of any of
its unlawful taint ; when Zinn and Banyai returned to the
union hall they had to report to the employees whether
Hornby agreed to recognize the Union, and that is what
they did.
As stated supra, the courts and the Board recognize
that the discharge of a union adherent is a "hallmark"
violation in determining whether a bargaining order is
warranted. As the Board stated in Armcor Industries, 227
NLRB 1543 at 1545 (1977):
This Board is well aware that no employer conduct
is more serious or has consequences more crippling
to the free exercise of Section 7 rights than the dis-
charge of an employee because of the employee's
union affiliation. Indeed, both the Board and the
courts have frequently pointed out that such con-
duct "goes to the very heart of the Act." [Citation
omitted.] The effect of such a discharge is particu-
larly pronounced when, as is true of the instant
case , one of the victims is well known as the insti-
gator of the Union's drive. In such circumstances,
only the most remarkably obtuse employee would
fail to perceive and to heed the employer' s message
that any employee who advocates the Union is em-
barking on a perilous venture.
Lozano solicited all the employees to execute authori-
zation cards for the Union; 2 months later her employ-
ment with Respondent was terminated; a few weeks later
Respondent hired an additional employee, bypassing
Lozano. This was bound to leave an indelible impression
on the remaining employees, especially considering the
small size of the unit and the fact that they work in close
proximity to each other. In this regard, the Board rou-
tinely finds the pervasiveness of unlawful conduct in a
small employee complement heightens its damaging
effect. Chandler Motors, 236 NLRB 1565 (1978); Ste-Mel
Signs, 246 NLRB 1110 (1979); Grandee Beer Distributors,
247 NLRB 1280 (1980); Larid Printing, 264 NLRB 369
(1982). As the Board stated in Pay 'N Save Corp., 247
NLRB 1346, (1980): "[In] a small unit , the impact of
such discharges has a far greater effect than in a larger
one and practically makes a fair election impossible." I
therefore find that the possibility of erasing the effects of
Hornby's threat and the termination of Lozano is so
slight that a bargaining order is warranted here rather
than the traditional remedy of an election, and this obli-
gation to bargain commenced on October 26, the date
the Union requested recognition after it had attained ma-
jority status. 14
14 Respondent , in its brief, alleges that it would be an injustice to
direct a bargaining order in this matter because six additional employees
have been hired by Respondent since the incidents in question Assuming
arguendo , that this is so (there is no record testimony in this regard), I
reject this argument Although it is true that the courts have, at times,
considered employee turnover in determining the appropriateness of a
bargaining order, the Board does not As the Board stated in Highland
Plastics, supra at 147
Although the Respondent has apparently experienced substantial
employee turnover since it committed the unfair labor practices de-
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth above in section
III, above, occurring in connection with Respondent's
operations described above in section I have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
threatening to terminate its operations rather than deal-
ing with the Union.
4. Respondent violated Section 8(a)(1) and (3) of the
Act by terminating the employment of Aldofina Lozano
about January 1, 1982.
5. The following unit is appropriate for purposes of
collective bargaining within the meaning of Section 9(b)
of the Act:
All full time and part-time production employees,
including machinists, cutters and sample makers em-
ployed by Respondent at 530 Seventh Avenue,
New York, New York; excluding all other employ-
ees, office clerical employees, sales persons, book-
keepers, managerial employees, guards and supervi-
sors as defined in the Act.
6. Since October 23, 1981, and at all times material
thereafter, the Union represented a majority of Respond-
ent's employees in the above-described appropriate unit,
and had been the exclusive representative of all the em-
ployees for purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
7 By refusing to recognize and bargain with the
Union as the exclusive collective-bargaining representa-
tive of its employees in the above-described unit, since
about October 26, 1981, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be re-
quired to cease and desist therefrom and take certain af-
scribed above, we find such turnover does not warrant withholding
a bargaining order The Board has consistently held that the validity
of a bargaining order depends on an evaluation of the situation as of
the time the unfair labor practices were committed and, therefore, to
delete such an order on the basis of employee turnover would
reward , rather than deter, an employer who engaged in unlawful
conduct during an organizational campaign
JUDY HORNBY DESIGNS 1283
firmative action designed to effectuate the policies of the
Act.
As I have found that Respondent unlawfully terminat-
ed Aldofina Lozano, I shall recommend that Respondent
be ordered to offer her immediate and full reinstatement
to her former position or, if that position no longer
exists, to a substantially equivalent job, without prejudice
to her seniority or other rights and privileges, and to
make her whole for any loss of earnings suffered as a
result of the discrimination by payment of a sum equal to
that which she would have earned, absent the discrimina-
tion, with backpay and interest computed in accordance
with F W. Woolworth Co., 90 NLRB 289 (1950), and
Florida Steel Corp. ' 5
For the reasons set forth above, I shall also recom-
mend that Respondent be ordered to recognize and, on
request, to bargain collectively with the Union as the ex-
clusive bargaining representative of the employees in the
above-described unit. 16
[Recommended Order omitted from publication.]
is 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB
716 (1962).
16 Although I have found that the unfair labor practices committed
warrant the imposition of a bargaining order , I find that the unfair labor
practices were not so egregious or widespread to warrant a broad order
Htckmott Foods, 242 NLRB 1357 (1979)