Pillows of California

National Labor Relations Board - Board Decisions

Nov 15, 1973

207 N.L.R.B. 369 (N.L.R.B. 1973)

PILLOWS OF CALIFORNIA 369
Pillows of California and Los Angeles Joint Board of
the International Ladies ' Garment Workers' Union,
AFL-CIO. Case 21-CA-11375
November 15, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On April 26, 1973, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and the General Counsel filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, as
modified herein, and to adopt his recommended
Order.
The complaint alleged that Respondent unlawfully
refused to reinstate economic striker Florence Her-
man after her unconditional offer to return to work.
The Administrative Law Judge found no voilation in
Respondent's not recalling Herman because Her-
man's job had been absorbed by supervisors and
other employees. He dismissed the 8(a)(3) allegation
as to Herman, stating that the General Counsel had
not met his burden of proving that Respondent was
motivated by antiunion considerations while Res-
pondent had advanced "a plausible case" for its
conduct. The General Counsel excepted to the
dismissal on the ground that the economic striker's
right of recall is not dependent on a show of
antiunion motivation and that it was Respondent's
burden to prove substantial economic justification
for failing to recall Herman, a burden that the
General Counsel contends Respondent did not meet.
We agree with the General Counsel as to the
appropriate rationale for determining when an
economic striker is entitled to reinstatement, but we
find that Respondent has proved its economic
defense. We therefore adopt the findings and
conclusions of the Administrative Law Judge but do
not wholly adopt his reasons therefor.
i The findings and conclusions, particularly that Florence Herman was
not a supervisor, are based, in part, on the credibility resolutions of the
Administrative Law Judge, to which Respondent excepts. On the basis of
our careful review of the record, we conclude that the Administrative Law
Judge's credibility findings are not contrary to the clear preponderance of
all the relevant evidence. Accordingly, we find no basis for disturbing those
The Administrative Law Judge found, crediting
Respondent President Cole, that during the econom-
ic strike, which began on September 20, 1972, and
ended on October 30, 1972, Respondent hired some
permanent striker replacements. He further found
that Cole, Supervisor Spring, and the striker replace-
ments divided up Herman's duties and. performed
her work. These several people were continuing to
perform the duties previously done by Herman as of
March 2, 1973, the time of the hearing in this case.
The hearing was, held 4 months after the strike
ended. In effect, Herman's former job no longer
existed because, prior to her offer to return to work,
the job duties had been divided up and assimilated
by others. Cole also testified that he had no job
openings for Herman and that he has recalled other
strikers but has not hired any new employees.
As the Board stated in The Laidlaw Corporation,2
an economic striker after a strike retains his status as
an employee and, in the absence of his having
obtained substantially equivalent work, is entitled to
reinstatement "absent substantial' business justifica-
tion, and regardless of [a respondent's] union
animus." The burden-of establishing the defense that
the unreinstated striker was no longer necessary to
the company rests with the employer. We find that
Respondent Employer has met that burden in this
case.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Pillows of California,
Los Angeles, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
findings. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 185 F 2d
362 (C.A. 3, 1951).
2 171 NLRB 1366, 1369, enfd. 414 F 2d 99 (C.A 7, 1969), cert denied
397 U.S. 920 (1970)
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge: On
March 1 and 2, 1973, 1 presided over a hearing at Los
Angeles, California, to try issues raised by a complaint
issued on December 15, 1972,1 on the basis of a charge and
i Read 1972 after all future date references omitting the year
207 NLRB No. 55
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an amended charge filed by Los Angeles Joint Board of the
International Ladies Garment Workers' Union, AFL-CIO,2
on November 7 and 16, respectively. The complaint
alleged that Pillows of California3 violated Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended
(hereafter called the Act), by hiring two new sewing
machine operators after six striking sewing machine
operators unconditionally offered to return to work, by
failing to offer recall to a seventh striker, and by
interrogating the seventh striker concerning union mem-
bership, activities, and sympathies.
The Company concedes it hired two new sewing machine
operators after receipt of an unconditional offer by six
striking sewing machine operators to return to work, but
alleges it did so because the Company and the two
employees reached agreement on their hire. as permanent
replacements for the strikers prior to its receipt of the
strikers' offer. The Company contends the seventh striker
was a supervisor at all times pertinent, that she was not
recalled because her duties were absorbed by other
employees during the strike, that neither she nor eight
other strikers have been recalled because there isn't any
need for their services, and that it was not discriminatorily
motivated in failing and refusing to call her.
With respect to the alleged interrogation of the seventh
striker, the Company,alleges she was a supervisor at the
time of the alleged interrogation and denies she was
interrogated concerning union membership; activities, and
sympathies.
The issues thereby joined by the parties and litigated at
the hearing were:
1. Whether the seventh striker (Florence Herman) was
a supervisor at times pertinent;
2. Whether the Company interrogated Herman concern-
ing union membership, activities, and sympathies;
3. Whether the Company failed and refused to recall
Herman because of her union membership, activities, and
sympathies; and
4. Whether the two sewing machine operators who
commenced work after the striking sewing machine
operators offered to return to work were hired previous to
the offer.
The parties appeared by counsel at the hearing and were
afforded full opportunity to adduce evidence, examine and
cross-examine witnesses, argue, and file briefs. Briefs have
been received from the General Counsel and the Compa-
ny.
Based upon my review of the entire record,4 observation
of the witnesses, perusal of the briefs and research, I enter
the following:
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the answer admitted, and I find
that the Company, at all times material, was an employer
engaged in commerce in a business affecting commerce,
and the Union' was a labor organization, as those terms are
defined in Section 2(2), (5), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company is a manufacturer of decorative pillows. In
August 1972, the Union commenced an organizational
drive among the Company's nonsupervisory employees
culminating in a petition for certification filed with Region
21 in early September (Case 21-RC-12874).
At the time the petition was filed, the Company
conducted its operations on two floors; the cutting and
sewing department and operations were on the basement
floor; the buttoning and finishing department, shipping
department, blowing room, and closing machine opera-
tions were on the first or main floor, as were the
Company's offices.
Harvey Cole, the Company's president, exercised general
control, direction, and supervision of the Company's
operations throughout; Max Spring exercised general
supervision over the first floor production and mainte-
nance employees and operations; Elias Landen exercised
general supervision over the basement floor production
and maintenance employees and operations. Cole, Spring,
and Landen were salaried, were not paid overtime, and did
not punch timeclocks 5
A recognition strike against the Company commenced
on September 20 and lasted until October 30, when the
Union made an unconditional offer on behalf of all the
strikers to return to work.
At the time the strike began the Company employed
approximately 25 nonsupervisory employees, with approxi-
mately 13 of the 25 working on the first floor. At the time
the strike began, Maria Cervantes, Kittie Cosby, Alicia
Moreno, Elvira Nunez, Maria Reyes, and Benita Torres
were employed by the Company as sewing machine
operators on the basement floor and Florence Herman was
employed in the buttoning and finishing department on the
first floor. All seven of these employees went on strike on
September 20 and remained out on strike through October
30.
B. The Supervisor Issue
In defense to the allegations that Florence Herman was
discriminately interrogated and not recalled, the Company
alleges at all times pertinent she was a supervisor, as that
term is defined in the Act.
In support thereof, Cole testified Herman was in charge
of the buttoning and finishing department for 3 to 4 years
preceding the September 20 strike, that she hired, fired,
laid off, disciplined, and directed the work of the
employees in that department, was paid a correspondingly
higher rate, was on a safety committee limited to
supervisors, and only she and other supervisors used the
telephone.
Y Hereafter called the Union. 5 It is undisputed that Cole, Spring, and Landen were supervisors and
3 Hereafter called the Company agents of the Company acting to its behalf at all times pertinent and I so
4 The General Counsel's unopposed motion to correct the transcript is find.
granted
PILLOWS OF CALIFORNIA 371
Herman testified she did not lure, fire, lay off, or
discipline department employees; that approximately I
hour per day she turned, cleaned, buttoned, and bagged
pillows and the balance of the workday kept a constant
check of button inventories, set up the work for the
buttoning employees and kept it flowing by placing
buttons at the worktables matching pillows to be buttoned
as -the pillows came through,6 placed orders by telephone
with outside manufacturers for buttons, saw that the
proper materials were supplied to such manufacturers and
picked up by them, checked delivered buttons to see if they
matched specifications, and made buttons at the plant
when necessary.7
She testified she was unaware of any instructions only
supervisors were to use the telephone and observed senior
employees regularly use it without warning or discipline,
namely, Gussie Morgan, Kittie Cosby, and Ron Tribble.
This testimony was uncontradicted and is credited.
She corroborated Cole's testimony that, following initial
interviewing and testing by the office staff and Landen and
hire, she showed new- employees in the department the
work and answered Cole's questions concerning their
abilities thereafter, but further testified other department
employees in the department also showed new employees
the work and answered Cole's inquiries regarding their
abilities, particularly Spanish-speaking employees.8 Her
testimony to this effect was corroborated by another
departmental employee, Marina Arevalo, was uncontrad-
icted, and is credited.
Cole testified to one alleged specific discharge by
Herman. He testified Herman discharged Atheree Wadley
in March. Herman denied she did so. The November
payroll printout supports Herman, inasmuch as it shows
Wadley as currently employed from a hiring date of June
12; i.e., not from a date of rehire following an alleged
August termination. Her denial is credited.
Cole testified to one other specific instance wherein
Herman allegedly exercised supervisory authority. He
testified Herman came to him with a report that a janitor,
Rivas, refused to sweep the floor in the department when
told to do so by Herman; that he went with Herman to
Rivas and told Rivas to sweep if Herman told him to do
so; that Herman was his supervisor and if he refused to
obey her again, he would be fired.
Herman corroborated Cole's testimony in part, testifying
she did go to, Cole with a complaint over Rivas' refusal to
sweep the floor at her request and that Cole accompanied
heir. to the floor and directed Rivas to comply with her
request; she denied, however, that he told Rivas Herman
was his supervisor and he was to take orders from her or
risk discharge. Herman went on to testify that various
departmental employees asked Rivas to sweep the floor
when they noted an overabundance of tacks on the floor,
particularly the Spanish-speaking employees in the depart-
ment who could speak to Rivas in Spanish. Arevalo
corroborated Herman's testimony to this effect, it was
uncontradicted, and is credited.
Herman testified at no time was she informed by Cole or
Spring or any other management representative that she
was a supervisor with power to hire, fire, lay off, or
discipline employees but on the contrary was informed by
both Cole and Spring that Spring was her boss and she was
to take orders from Spring.9 Arevalo testified without
contradiction that on one occasion Spring told her he was
her boss and she was to take orders, from him, not
Herman.1o
While an employee called by the Company, Lindsey
Rhone, testified that when she formerly worked in the
buttoning and -finishing department (several years prior to
the strike; she was employed for a substantial period
immediately prior to the strike in the cutting and sewing
department), she observed Herman passing out work and
"bawling out" some of ` the employees . She was unable to
cite any instances where she saw Herman hire, fire,
transfer, lay off, or discipline any employees. Under cross-
examination, she described her position in . the cutting
room as a "floorlady" and her duties as similar to those she
observed Herman perform on the first floor, namely,
distribution of materials to keep the work flowing smoothly
(she distributed welt, thread, zippers, etc.).
While another employee, Ron Tribble, testified he held
Herman's job some 6.years prior to 1972 and exercised
supervisory functions, he failed to testify to any observance
of Herman's exercise of such functions during her job
tenure.
Spring testified that Herman "ran" the buttoning and
finishing department and he confined himself to the
shipping room and the shipping function; he failed to
recite any specific instances of Herman 's conduct on the
job other than following special orders through the
department at his request and conceded he told Herman he
was the boss.
Insofar as Herman's rate of pay is concerned ($2.45), it is
noted that Gussie Morgan, who is listed on the computer
printout in the same department as Herman (103) received
$3.00 and had a hiring date of 9/17/56; Johnny Stephens
of the same department received $2.85 and had a hiring
date of 8/7/58; Poli Hernandiz of the same department
received $2.25 and had a hiring date of 10/ 12/72; Salvador
Mendez of the same department received $2.10 and had a
hiring date of 9/21/72; and Augustin Dominquez received
$2.00 and had a hiring date of 10/16/72. Herman's hiring
date was 4/18/61.
It appears from the foregoing that Herman's rate is as
readily attributable to her length of service vis-a-vis other
employees classified in department 103 as to any alleged
supervisory capacity.
With reference to the safety committee, the record
discloses Herman attended one meeting thereof, that
Spring, Landen, Cole; and a Mr. Joseph Langendahl of the
State Compensation Insurance Fund attended, and attend-
ed no further meetings. The record further discloses that a
nonsupervisory employee, Richard Haase, attended a
subsequent meeting.
6 It is undenied that the employees also at tunes secured pillows and Spring after some attempts to evade the question confirmed that he
matching buttons themselves . told Herman on several occasions he was her boss.
7 She also followed special orders through the department as directed by 10 Spring confirmed that he gave orders to all employees in the buttoning
Spring from time to time and finishing department
8 The Company employed a large number of such employees
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On balance, I find and conclude that Florence Herman
was a working leader within the buttoning and finishing
department, charged with the duty of supplying materials
and maintaining a smooth work flow, with the incidental
duties of maintaining button inventories, making buttons,
and ordering buttons from outside suppliers with little or
no exercise of independent judgment. In the small
workforce involved, supervisory authority was exercised by
Cole and his two floor foremen, Spring and Landen.
I therefore find and conclude that at times pertinent to
this proceeding, Florence Herman was not a supervisor
and agent of the Company acting on its behalf.
C. The Alleged Interrogation
Herman testified that on September 18, 2 days before the
strike commenced, she was called from the floor into
Cole's office at about 4:00 p.m. and questioned by Cole
and his attorney, Wilson Clark," about, as she put it, "how
did the Union get in."
Cole and Clark confirmed the fact Herman was called
into Cole's office on the date and at the time indicated.
The interview was scheduled by Cole, at Clark's request,
because Cole informed Clark (who had been retained to
represent the Company in the representation case) that
Herman was named as one of the members of the Union's
organizational committee in a letter he received from the
Union and he (Cole) considered her a supervisor. Clark
wanted to interview Herman to ascertain whether she was
a supervisor and, if so, whether her activities on behalf of
the Union were sufficient to provide a basis for seeking
dismissal of the Union's petition for certification.12
Cole introduced Clark to Herman when she appeared
and Clark told Herman he wanted to ask her some
questions.13
Clark explained to Herman that if a supervisor assists a
union in its organizational drive among a company's
employees, this may constitute grounds for dismissing that
union's petition for certification as the exclusive collective-
bargaining representative of that company's employees; he
then showed her a book containing an analysis of the
factors which constitute supervisory status14 and ques-
tioned her concerning the factors listed; she replied in the
affirmative to many of his questions and he informed her
she was a supervisor; he next asked her whether she had
solicited employees to sign cards authorizing the Union to
represent the Company's employees and she replied that
while she signed a card, because other employees also were
signing them, she did not ask any other employees to sign
cards.
Clark closed the interview with a warning that Herman,
as a supervisor, owed a duty of loyalty to the Company
and should desist from any union activity; informing her
any statements she made would have the effect of binding
the Company and her participation in union activities
31 I find that Clark was an agent of the Company acting on its behalf at
all times pertinent.
12 On the ground the Umon's showing of interest was tainted by virtue of
such activities.
13 Clark prefaced his questions with a statement that Herman did not
have to answer his questions, that no reprisals would be taken against her if
she refused to answer, and that he did not want to know the identity of the
Union's supporters or the union sentiments of the employees
therefore would neither benefit the Company nor the
Union.
On the basis of the foregoing, I find and conclude that
the Company, by Clark, interrogated Herman on Septem-
ber 18 concerning her and other employees' union
activities but that, in view of Clark's prefatory remarks and
good-faith belief she was a supervisor, it would not serve
the purposes of the Act to find that by such interrogation
the Company violated Section 8(a)(1) of the Act.
D. The Alleged Discrimination Versus Herman
As set out heretofore, the Union notified the Company
in September, in writing, that Herman was one of the
members of its organizing committee.
Herman participated in the strike from its inception on
September 20 until its expiration on October 30 and was
included in the Union's October 30 unconditional offer on
behalf of all the strikers to return to work.
Neither Herman nor eight other strikers had been
recalled by the time this hearing occurred-on March 1
and 2, 1973.
The General Counsel alleges the Company failed and
refused to recall Herman because she engaged in activities
on behalf of the Union and relies primarily on the
interrogation described above as evidence of such motiva-
tion.
Cole testified that Herman is only one of nine employees
who have not been recalled and that she has not been
recalled because, in the course of the strike, her job duties
were assigned to various supervisory employees and
employees hired during the strike as permanent striker
replacements.
He testified he, Spring, and an employee hired during the
strike named Betty Jean Smith plus other striker replace-
ments, both during and since the end of the strike, have
carried out Herman's job duties heretofore described. He
stated no need had arisen for either the services of Herman
or eight other strikers 15 since the strike ended.
The General Counsel failed to develop any evidence that
any vacancies have occurred and been filled in the
buttoning and finishing department since the strike ended
which Herman could have performed.
In my judgment, the General Counsel failed to meet his
burden to establish, by prima facie evidence, that Herman
was not recalled to her former job prior to the hearing
because she engaged in the strike and supported the Union
prior thereto, while the Company has advanced a plausible
case 16 for its failure to recall Herman at any time prior to
the hearing.
I therefore shall recommend that those portions of the
complaint so alleging be dismissed.
14 The Labor Relations Expediter published by the Bureau of National
Affairs. Herman conceded she was shown the book.
15 The record fails to disclose the job classifications or departments in
which these eight strikers were employed prior to the strike, except to the
extent it is undisputed that all sewing machine operators have been offered
recall (see discussion in Sec. E)
16 Cole's testimony recited above is uncontradicted and credited.
PILLOWS OF CALIFORNIA 373
E. The Alleged Discrimination Against Cosby,
Nunez, Torres, Cervantes, Reyes, and Moreno
It is undisputed that sewing machine operators Kittie
Cosby, Elvira Nunez, Benita Torres, Maria Cervantes,
Maria Reyes, and Alicia Moreno went on strike against the
Company in September and that on October 30 the Union
made an unconditional offer on their behalf to return to
work.
It is likewise undisputed that Herlinda and Ramona
Martinez commenced work as new employees 17 (sewing
machine operators) 4 days later, on November 3.
It is further undisputed that with the Company's
December 1 offer to recall Moreno, all of the Company's
striking sewing machine operators were offered recall.
Cosby was recalled on November 16; Nunez was recalled
on November 22; Torres was recalled on November 27;
Cervantes was recalled on November 30; Reyes was
offered (and declined) recall on November 27; and
Moreno was offered (and declined) recall on December 1.
The General Counsel contends the hire of Herlinda and
Ramona Martinez as new sewing machine operators
following the unconditional offer by striking sewing
machine operators Cosby, et al. to return to work delayed
their recall and thereby violated Section 8(a)(3) and (1) of
the Act.
The Company contends that while Herlinda and Ramo-
na Martinez commenced work after Cosby, et al. offered to
return to work, the Company hired the two Martinez
women as permanent strike replacements for the striking
sewing machine operators on October 23, prior to the
strike's end, thus the fact they reported for work after the
strike ended did not delay the recall of Cosby, et al. and
thereby violate the Act.
The issue turns on whether or not the two Martinez
women were hired as permanent employees on October 23.
Both Herlinda Martinez and Cole agreed they spoke by
telephone on two occasions prior to October 30 and once
on October 31.
They differed on the date of the first conversation, but
this is immaterial as their testimony was in accord on the
fact Cole's offer of employment as striker replacements
was not accepted.
They differed on another point which is of some
consequence-Cole testified it was during the first conver-
sation Herlinda informed him she and her mother were
employed by an umbrella company while Herlinda
testified she informed Cole of that fact in the course of the
second (October 23) conversation.
Martinez and Cole agreed the second conversation
occurred on October 23, that Cole called the Martinez
home, left word in Herlmda's absence to call him back,
and that she called him back later in the day. They agreed
Cole offered Herlinda and her mother jobs as sewing
machine operators 18 and that Herlinda informed Cole she
was ill with bronchitis and that, in response to Cole's
inquiry regarding the possibility of her mother coming to
work for him, Herlinda stated her mother was nervous
about working anywhere without Herlinda (her mother
spoke little English) and therefore would not work for Cole
unless and until Herlinda did so.
Their testimony differed with regard to the October 23
telephone conversation in the following significant re-
spects: Herlinda testified it was in this conversation she
told Cole she could not come to work for him because she
had bronchitis, and because she and her mother were
employed by an umbrella company and expected to return
to work there; and that she responded to Cole's offer of
employment by saying she and her mother would have to
think about it; Cole testified the reference to employment
at the umbrella company occurred in the first conversation,
and that Herlinda promised she and her mother would
come to work for him when she recovered from her
bronchitis attack.
Both Herlinda and Cole agree their third conversation
took place on October 31, the day after the Union called
off the strike and made the unconditional offer on behalf
of the striking employees to return to work.
They agreed that in the course of this conversation Cole
informed Herlinda that the strike was over and renewed his
offer of employment; that Herlinda informed Cole she was
still suffering from bronchitis, was scheduled to see her
doctor on Thursday, November 2, and that she and her
mother were willing to report for work on the following
Monday, November 6, if the doctor found her fit; that
Cole suggested they report on Friday November 3, if the
doctor permitted; and tat Herlinda agreed that she and
her mother would report for work that day, the doctor
permitting.
As noted heretofore, Herlinda and her mother did report
for work as sewing machine operators on Friday, Novem-
ber 3, and have worked continuously for the Company
since that date.
Where the testimony conflicts, Herlinda's testimony is
credited. She struck me as an earnest witness testifying to
her best recollection. Any difficulties she experienced were,
in my judgment, due to her difficulty in comprehending
English (for that reason, I requested that an interpreter be
utilized to ask her questions in Spanish and translate her
replies into English).
Based on the foregoing, I find and conclude that
Herlinda and Ramona Martinez did not accept Cole's
offers to come to work for the Company as sewing machine
operators prior to October 31 and did accept his offer on
October 31, the day after Cosby, et al., abandoned the
strike and unconditionally offered to return to their jobs as
sewing machine operators.
Based upon the foregoing, I find and conclude that the
hire of Herlinda and Ramona Martinez under these
circumstances delayed the recall of Cosby, et al., and
thereby violated Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. At all times material, the Company was an employer
engaged in commerce in a business affecting commerce
17 While they were previously employed by the Company, it is
undisputed that such employment terminated in 197Q.
is Cole made both the first and the second offer at the urging of Maria
Chavez, a close friend of Herlinda and her mother . Chavez was a longtime
company employee (sewing machine operator).
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the Union was a labor organization as those terms are
defined in Section 2(2), (5), (6), and (7) of the Act.
2. At all times pertinent, Florence Herman was not a
supervisor of the Company as that term is defined in the
Act.
3. By its October 31 hire of Herlinda and Ramona
Martinez as new sewing machine operators, following the
October 30 unconditional offer by striking sewing machine
operators Cosby, Nunez, Torres, Cervantes, Reyes, and
Moreno to return to work, the Company delayed the recall
of the latter six employees and thereby violated Section
8(a)(3) and (1) of the Act.
4. The Company did not otherwise violate the Act.
5. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that the Company engaged in
unfair labor practices in violation of Section 8(a)(3) and (1)
of the Act, I shall recommend that the Company be
directed to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
I have found that the Company unlawfully delayed the
recall of six, striking sewing machine operators who were
offered recall on varying dates between November 16 and
December 1. In order to compensate these six employees
for any loss of earnings they have experienced as a result of
this delay, I shall order the Company to make those
individuals whole by payment to them of a sum of money
equal to that which they would have earned as wages from
the date upon which they would have been recalled, but for
the hire of Herlinda and Ramona Martinez, to the date
upon which they were actually offered recall.
It is difficult to calculate the actual sums owed, but a
reasonable formula would be a direction for the Company
to pay Cosby,, the first recall, the wages she would have
earned had she been recalled on October 31, the date
Herlinda Martinez was hired as a new employee. Applying
the same formula to the second recall, Nunez, it would
appear reasonable to direct the Company to pay Nunez the
wages which she would have earned had she also been
recalled on October 31, the date Ramona Martinez was
hired as a new employee. It is reasonable to presume the
earlier recall of Cosby and Nunez would have accelerated
the recalls of the remaining four striking sewing machine
operators (Tones, Cervantes, Reyes, and Moreno) in a like
fashion to dates on which Cosby, Nunez, et al., were
actually recalled. I shall leave the application of the above
formula, however, to the enforcement stage of this
proceeding.
The loss of earnings referred to above shall be computed
with interest on the amount due, computed at 6 percent per
annum.
The Company shall also be ordered to make available to
the Board or its agents, upon request, payroll and other
records to facilitate the computation of the amounts due,
and to post the attached notice.
Upon the foregoing findings of fact, conclusions of law
and the entire record and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER i9
Pillows of California, its officers, agents, successors, and
assigns, shall:
1. Cease and desist form hiring new employees to fill
vacancies in jobs performed by its employees who
participated in the September 20 to October 30 strike until
and .unless such strikers have been offered recall thereto.
2. Take the following affirmative action necessary to
effect the policies of the Act:
(a) Make whole Kittie Cosby, Elvira Nunex, Benita
Torres, Maria Cervantes, Maria Reyes, and Alicia Moreno,
in the manner set forth in the section of this decision
entitled "The Remedy," for any losses in pay they
experienced by reason of the delay in their recall due to the
hiring of Herlinda and Ramona Martinez. '
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, health
and welfare payment records, pension payment records,
personnel records, reports, and other records necessary to
analyze the amount of money or other payments or
benefits due under the terms of this Order.
(c) Post at its place' of business in Los Angeles,
California, copies,of the attached notice marked "Appen-
dix."20 Copies of said notice, on forms provided by the
Regional Director for Region 21, after being duly signed
by the Company's authorized representative, shall be
posted by it immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter, in
conspicuously located places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Company to insure that such
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps the Company has taken to comply herewith.
19 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and the recommended Order herein shall, as provided
in Section 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.
20 In the event the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT hire new employees as vancancies
occur in jobs striking employees have unconditionally
offered to return to until and unless those striking
employees are all recalled.
WE WILL make whole Kittie Cosby , Elvira Nunez,
Benita Torres , Maria Cervantes , Maria Reyes, and
Alicia Moreno for any loss of earnings they experi-
PILLOWS OF CALIFORNIA 375
enced by our hire of new employees to replace them in This is an official notice and must not be defaced by
their former jobs following their October 30, 1972 , anyone. -
unconditional offer to return to work following a strike , This notice must remain posted for 60 consecutive days
together with interest at 6 percent per annum on the from the date of posting and must not be altered, defaced,
sums due to them . or covered by any other material.
Any questions concerning this notice or compliance with
PILLOWS OF CALIFORNIA its provisions may be directed to the Board's Office,
(Employer) Eastern Columbia Building , 849 South Broadway, Los
Angeles, California 90014, Telephone 213-688-5229.
Dated By
(Representative) (Title)