Playboy of Miami, Inc.

National Labor Relations Board - Board Decisions

Oct 6, 1966

160 N.L.R.B. 1617 (N.L.R.B. 1966)

PLAYBOY OF MIAMI, INC. 1617
Director for Region 20, after having been duly signed by a representative of
Respondent, shall be posted immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including all places
where it customarily posts notices to its members and other persons using the hiring
hall and referral services of Local No. 701. Reasonable steps shall be taken by
Respondent to insure that such notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 20, in writing, within 20 days from
the date of receipt of this Decision , what steps Respondent has taken to comply
herewith?
In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read "Notify the said Regional Director , in writing , within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith"
APPENDIX
NOTICE To ALL MEMBERS OF CARPENTERS LOCAL No. 701 , UNITED BROTHERHOOD
OF CARPENTERS AND JOINERS OF AMERICA , AFL-CIO, AND PERSONS USING ITS
HIRING HALL
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT refuse to grant to John D Collins, or any other person, a job
referral to which they are entitled under the Act.
WE WILL NOT in any like or related manner cause or attempt to cause Haas &
Haynie Corporation , or any other employer, to discriminate against employees
or prospective employees , including John D. Collins, in violation of Section
8(a)(3) of the Act.
WE WILL make John D. Collins whole for any loss of pay he may have suf-
fered as a result of our discrimination against him m refusing to grant him a
lob referral to which he was entitled under the Act.
CARPENTERS LOCAL UNION No. 701 UNITED BROTHERHOOD
OF CARPENTERS AND JOINERS OF AMERICA , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other matenal.
If members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 500 Union
Street, 327 Logan Building, Seattle, Washington 98101, Telephone 583-4583.
Playboy of Miami , Inc. and Amalgamated Clothing Workers of
America, AFL-CIO, Local No. 694. Case 10-CA-3313. Octo-
ber 6, 1966
DECISION AND ORDER
On May 18, 1966, Trial Examiner Arthur Christopher, Jr., issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. He also found that the Respondent had not
160 NLRB No. 128.
257-551-07-vol 100-103
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in certain other unfair labor practices and recommended that
such, allegations of the complaint be dismissed. Thereafter, the
Respondent filed exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.2
[The Board adopted the Trial Examiner's Recommended Order.]
[The Board dismissed the complaint insofar as it alleges unfair
labor practices not specifically found in the Trial Examiner's
Decision.]
'The Respondent excepts to the credibility findings of the Trial Examiner. We have re-
viewed the entire record and, under the standards set forth in Standard Dt y Wall Products,
Inc., 91 NLRB 544, enfd 188 F 2d 362 (C.A 3), we find no reason to reject these findings.
eon the basis of uncontroverted record evidence, we amend the date on which Onelia
Valdez, an 8(a) (3) discriminatee, was visited by Carlos Delgadillo, a union representative,
to read "-July 26, 1965," rather than "July 6, 1965," as appears in the Trial Examiner's
Decision
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Arthur Christopher, Jr., in
Miami, Florida, on December 13, 14, and 15, 1965, on complaint of the General
Counsel and on answer of Playboy of Miami, Inc., herein called the Respondent.'
The issues litigated were whether the Respondent violated Section 8 (a) (1) and (3 )
of the National Labor Relations Act, as amended. At the hearing all parties were
represented by counsel, and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, to present evidence, and to file briefs. At the close of
the hearing, the General Counsel and the Charging Party argued orally and there-
after the Charging Party submitted a brief.
Upon the entire record and my observation of the demeanor of the witnesses, I
hereby make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Florida corporation with its principal office and place of business
located at Miami, Florida, is engaged in the manufacture and sale of men's sport
clothing. Annually, the Respondent, in the course of its business enterprise, sells and
ships finished products valued in excess of $50,000 to customers located outside the
State of Florida.
'The original charge was filed by the above-named Union on August 17, 1965; an
amended charge was filed on August 20, 1965 ; and a second amended chat ge 'was filed on
October 1, 1965.
PLAYBOY OF MIAMI, INC. 1619
I find, contrary to the contention of the Respondent, that it is an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the Act and
that it will effectuate the policies of the Act to assert jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that Amalgamated Clothing Workers of America, AFL-
CIO, Local No. 694, hereinafter called the Union, is a labor organization within
the meaning of the Act. -
111. THE UNFAIR LABOR PRACTICES
A. The issues
The first principal issue in this proceeding is whether the Respondent violated
Section 8(a)(3) and (1) of the Act through its alleged discriminatory refusal to
recall and reinstate Onelia Valdez, Isabel Vivanco , Dolores Vivanco , and Violetta
Sosa to their former or substantially equivalent positions because the aforesaid
employees joined or assisted the Union or engaged in other union or concerted
activities.
The second issue is whether the Respondent violated Section 8(a)(1) of the Act
through (a) the alleged conduct of Production Manager Irving Goldstein, an
admitted supervisor, on or about August 6, 1965, interrogating two employees
concerning their being contacted by a union representative; (b) through the alleged
conduct of Goldstein, on or about August 9, 1965, calling and conducting a meeting
of the employees where they were told about their union sympathies and that they
were free to do as they pleased, but Goldstein would do what was best for him;
(c) through the alleged conduct of Armando Menendez, an alleged supervisor,
telling the assembled employees in the course of the meeting that the Union would
not come into the plant because the Respondent did not want it; (d) through the
alleged conduct of Forelady Hilda Villa, an alleged supervisor , on or about
August 9, 1965, interrogating an employee concerning her signing a union card
and the involvement of another employee in union activities; (e) through the alleged
conduct of Goldstein and Menendez, on or about August 13, 20, and 23, 1965,
interrogating an employee concerning her union activities and signing a union card,
and telling her that the employees were engaging in "treason," and had been advised
of the imminent closing of the plant; (f) through the alleged conduct of Menendez
on or about August 20, 1965, te.';ng an employee that she could continue working
providing she did not vote for the Union in the event of an election and did not
turn "Traitor"; (g) through the alleged conduct of Goldstein, on or about August 23,
1965, telling an employee that she could return to work, providing she had not
signed a union card and was not a union member and, upon her return , talked to
no person at the plant about the matter except Goldstein.
B. The facts
Irving Goldstein, variously referred to by employee witnesses as "Mr. Elvis,"
"Mr. Elvin," and "Mr. Irving," in addition to serving as production manager of
the Respondent's plant, also serves as secretary-treasurer of the Respondent cor-
poration. In the day-to-day operations of the clothing plant, Goldstein is assisted,
inter alia, by Hilda Vila, classified as a floorlady, who is in charge of the machine
operators , and Angel Armando Menendez Martinez, generally known as Armando
Menendez, who is classified as a presser and is in charge of the employees engaged in
the pressing , buttoning , and folding operations . As several of the issues relating to
alleged interrogation and threats involve alleged misconduct on the part of Hilda Vila
and Armando Menendez , an initial resolution of their status as supervisors within the
meaning of the Act is necessary prior to consideration of the aforementioned issues.
Hilda Vila testified that her principal duty as floorlady was to distribute the work
to the more than 80 sewing machine operators and to do "everything else with
respect to the girls that I am instructed to do by the owner [Irving Goldstein]."
Vila has an assistant, Conchita Menendez, and two floorgirls to whom she issues
orders. Vila, like the rank-and-file sewing machine operators, is paid on an hourly
basis. However, she receives $1.871/2 per hour as compared to the machine
operators whose rates range from $1.25 to $1.50 per hour. In addition to being
in charge of the machine operators, Hilda Vila is also in charge of the finishing
1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
section , with six employees, as well as the stretch pocket section, which also has six
employees. With respect to the latter section, she is assisted by two girls who are in
direct charge of the operation of that section.
Dolores Vivanco, one of the alleged discriminatees who was employed by the
Respondent as a sewing machine operator on July 11, 1963, credibly testified that
Hilda Vila distributed the work to the sewing machine operators, examined it upon
its completion and, when the occasion required, changed operators from one job
to another. Vila also tested applicants for sewing machine jobs who ultimately were
hired by Goldstein only if Vila gave them favorable recommendations. According
to Vivanco, Hilda Vila issued orders to the sewing machine operators who had no
choice but to obey them. She also reprimanded employees within her department
and when the work slackened decided which girls were to be laid off. Dolores Viv-
anco testified that, although Goldstein's office was located adjacent to the large room
where the machine operators were quartered and Goldstein spent a part of his time
on the production floor, the actual supervision was carried out by Hilda Vila. In
this connection, Vivanco also testified that on one occasion she was laid off by
Hilda Vila notwithstanding the existence of work. Work assignments within Hilda
Vila's department were made on a sectional basis, e.g., a group of employees was
assigned a specific operation such as the sewing of sleeves; the sewing of collars is
assigned to another, and the production of pockets is assigned to still another section.
Celia Fernandez, an employee who was employed as a machine operator and
worked under Hilda Vila at the time of the hearing, corroborated the testimony of
Dolores Vivanco in all essential aspects. She also credibly testified that Hilda Vila
was assisted in making work assignments by Conchita Menendez, who told the
machine operators whether or not they were to work the following day.
Hilda Vila testified that she had never hired or discharged any employees and
contradicted the testimony of Dolores Vivanco that Vila had the authority to lay
off employees. She further testified that any direction she gave her subordinates
were issued in a routine manner, as she merely functioned as a conduit, relaying the
instructions -of Irving Goldstein to the machine operators. Vila asserted that she dis-
tributed the work to the girls on the basis of "whatever the owner decides." Despite
the fact that Vila in an affidavit submitted to a Board agent stated that she orga-
nized and assigned the work to the approximately 80 girls employed in the machine
operation and reviewed and inspected their work,- she nevertheless maintained that
she merely transmitted Goldstein's directions to the operators within her department.
As Dolores Vivanco impressed me as being a forthright and truthful witness and
her testimony was substantially corroborated by Celia Fernandez who likewise
worked under Hilda Vila, I credit Vivanco's testimony over that of Hilda Vila where
it is in .conflict. In the foregoing circumstances, I find that Hilda Vila responsibly
directed the employees engaged as machine operators in their work, exercising inde-
pendent judgment in connection therewith and that she had the authority effectively
to recommend changes in the status of employees within her department. I there-
fore find and conclude that Hilda Vila was a supervisor within the meaning of the
Act on all dates material herein.
Armando Menendez testified that he was employed by the Respondent as a presser
and he performed pressing duties and also taught the girls how to press collars, etc.
Menendez was hourly paid and punched a timeclock like the girls'. Menendez testi-
fied that he had no authority to hire or discharge employees.
Isabel Vivanco Garcia, one of the alleged discriminatees and the daughter of
Dolores Vivanco, credibly testified that Menendez was the supervisor of the press-
ing department which employed about seven or eight girls. Garcia stated that "he tells
everybody'what to do," and also performed manual work himself, such as pressing
shirts, along with three or four girls who performed similar duties. She said he was the
"one in charge, to tell which one does the right job . . . ." Garcia further testified
that Menendez also reassigned employees within the pressing department to differ-
ent jobs.
Marta Pedron, who commenced working for the Respondent as a presser on
December 16, 1964, and worked until about 8 months thereafter, credibly testified
that one of the girls at the plant brought her to the plant after Menendez informed
the girl that he needed a presser. After she talked to Menendez and he showed her
the method of pressing followed in the plant, she was hired. According to Pedron,
Menendez assigned the work to the employees within the department and rotated
them within the department. He also reprimanded them for improper work and
"told us to go home that there was no work that day and recall[ed] us . . . when
there was work." She further testified that on occasions when she was not feeling
PLAYBOY OF MIAMI, INC . 1621
well, Menendez granted her time off without apparent prior consultation with Gold-
stein . On another occasion Pedron talked•to Menendez about a raise, and Menendez
told her he would "talk so that she would get the raise." Thereafter she obtained a
raise in pay from $1.25 to $1.30 per hour. Pedron testified that Goldstein told the
employees within the pressing department that they had to obey "Armando's orders."
Olga Rodriquez, employed as a packer and called as a witness by the Respondent
testified that Menendez did not have the authority to hire or discharge employees,
but always consulted Goldstein with respect to such matters.
On the basis of all the foregoing, I find that Armando Menendez had the author-
ity responsibly to direct the employees within his department, exercising independ-
ent judgment in connection therewith, and also had the authority effectively to rec-
ommend changes in their employment status. I therefore find and conclude that
Armando Menendez was a supervisor within the meaning of the Act and on all dates
material herem.
Production Manager Irving Goldstein testified that on August 9, 1965, be called
a meeting of Respondent 's employees after a telephone conversation with Attorney
Seymour A. Gopman who represented the Charging Party. Goldstein stated that in
his telephone conversation with Gopman Goldstein discussed his "union trou-
ble" and declined Gopman's invitation to confer with him stating "I have nothing to
sit down and . . . talk about ." He discussed with Gopman what Goldstein described
as an offer by the Government of the Commonwealth of Puerto Rico to construct
a building for the Respondent in Puerto Rico so that the Respondent could move
its plant from Miami to Puerto Rico. Goldstein testified that he believed he brought
up the Puerto Rican relocation matter but denied that he brought it up for the
reason of "running away from here ." Goldstein testified that he told the employees
at the meeting they could do whatever they wanted to about the Union and that
he would do whatever was best for him. '
Goldstein testified , and the record supports his testimony in this respect, that
the Respondent generally encountered a slow season which began in July and
extended into August. He further testified that on or about August 6,2 from 18 to
20 girls were laid off because of lagging business , and during the month of August
the Respondent laid off a total of from 19 to 25 employees and had a working
complement of from 70 to 80 girls. At that time it was engaged in the making
of samples . On the date of the hearing the Respondent had a force of 120 female
employees . By October 7 it had continued to add additional machines ' and girls
were still being employed.
Onelia Valdez was employed by the Respondent as a sewing machine operator
on November 27, 1964, and worked under the supervision of Hilda Vila. Valdez
credibly testified that Carlos Delgadillo, a union representative, visited her home on
July 6, 1965, and she signed a union card on that same day. Within a period of
4 or 5 days thereafter she talked with a number of her coworkers employed at
the Respondent's plant urging their support of the Union. In this respect Valdez
stated she talked to about 13 to 15 employees after she had been visited by
Delgadillo. These conversations took place at the homes of the girls concerned,
and she further testified that she had attempted to get these employees to sign
union cards. She was successful in obtaining the signatures of four to six of these
employees on union authorization cards. Valdez was laid off from work sometime
in July 1965, prior to the time she signed the union card. Valdez credibly testified
that thereafter she called the plant several times in order to learn whether there
was work available for her. She testified that her second call to Goldstein occurred
the day after she signed the union card. At the time of the first call, Goldstein told
her to call him back at a later date . In the second telephone conversation with
Goldstein, Valdez asked if she could return to work, and when work would be
available. Goldstein replied that she should not annoy him further and specifically
directed her not to call him again as he did not have any work for her. Valdez
testified that she made two or three telephone calls to the Respondent on later
dates, but was'always told that there was no work available for her. In the later
calls she was unable to talk to Goldstein, but talked with Hilda Vila and Armando
Menendez.
Valdez further testified that she knew that several other employees who per-
formed jobs similar to hers were laid off from work only several days, after which
they were'recalled. Valdez was not certain whether these other employees were laid
off at `the time she was laid off, but she knew that all were reemployed . In this
2 All dates shown are 1965 unless otherwise indicated.
7
1622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'respect , Onelia Valdez testified that all the girls who had signed union cards at
her instance - worked during the period commencing July 6 and extending 5 or 6
days thereafter : Although Tony Farcon testified that, on the instructions of Irving
'3oldstein, he had visited Valdez' home twice in I week in July about 5 p m in
unsuccessful attempts to contact her and tell her to return to work, I find his
testimony incredible of belief in view of the clear evidence that work did not pick
up until August. In this connection Onelia Valdez credibly testified that she had no
knowledge that anyone attempted to call her or bring her messages to return to
work after August 6 , 1965. Although Valdez did not have a telephone , she used
the telephone located downstairs at the house where she lived . On prior occasions
she had been called by the Respondent who instructed her to return to work after
a layoff.
Goldstein testified that Onelia Valdez did not work for the Respondent after
July 20 . He denied Valdez' testimony that she had called Goldstein and talked to
him at his home one evening , although he testified that he recalled having talked
to Onelia Valdez at the plant on one occasion while she was working . According
to Goldstein this conversation with Onelia Valdez resulted from complaints by
other female employees that it was disagreeable to work with Valdez because of
an offensive body odor . Goldstein stated that he talked to Valdez about the com-
plaint in order to adjust it. I credit Onelia Valdez' testimony that she talked with
Goldstein several times seeking reemployment as she impressed me as being a
straightforward, truthful witness as contrasted with Goldstein who, at times, was
evasive and frequently stated he could not recall details and even changed his
testimony as to certain crucial matters when confronted with contrary statements
that he had made in his affidavit submitted to a Board agent . I further find and
conclude that the Respondent made no attempts to contact Onelia Valdez either
by mail, telephone, or by messenger after work picked up at the Respondent's plant
in August.
Isabel Vivanco Garcia was employed by the Respondent in October 1964, and
worked in the pressing department under Armando Menendez, performing cleaning
and folding work . She testified that initially she worked on a steady basis but
shortly thereafter she commenced working on the basis of 2 or 3 days each week.
Garcia credibly testified that she obtained a union card from Union Organizer
Carlos Delgadillo, and signed it on August 5, 1965, at her home. Isabel Garcia
testified that the day she signed the card was the last day she worked for the
Respondent , and she was not recalled to work after August 5, 1965.
Irving Goldstein testified that after August 6 , 1965, he never heard from Isabel
Vivanco Garcia and that she never called in requesting work . When asked if
there was any reason why Isabel Garcia had not been recalled to work , Goldstein
stated there was no reason but added that when she was hired he told her mother,
at whose instance she had been hired , that he had no steady work for her . He said
there was an understanding that if work was not available she would not complain
to him about it.
Dolores Vivanco was employed by the Respondent on July 11, 1963, as a
machine operator and worked under Hilda Vila. Vivanco signed a union card on
August 5, 1965 , in her home at the same time her daughter , Isabel Garcia signed
a card, and turned the card over to Carlos Delgadillo, the union representative.
Vivanco furnished Delgadillo the name of another employee, Norma Santoro, who
likewise was interested in the Union . Vivanco testified that after signing the union
card she talked on the telephone to several of her coworkers about the advantages
of the Union. She did not recall whether she had stated to any of them that she
in fact had signed a union card . She testified , however, that she mentioned in the
course of the telephone conversations that Delgadillo was the union representative
who had called on her , and that four employees were in favor of the Union.
Vivanco credibly testified that on the following day, August 6, 1965, about
4 p.m., when she went to punch her timecard in the plant , she passed "Mr. Irwin"
and overheard Hilda Vila tell Goldstein "look at her now. This is her now." Upon
reaching the line, Goldstein came to Vivanco and instructed her to go to his office.
Thereafter she had a short conversation with Goldstein in the course of which he
asked Vivanco" whether "the union man had called on her ." She testified she told
Goldstein that she had been visited by Delgadillo and that the union representative
had also talked to her daughter , Isabel Vivanco Garcia. Goldstein replied that she
was within her rights in doing whatever she wanted to do. The following day,
about 2 p.m., Dolores Vivanco had another conversation with Goldstein . Goldstein
told her that he did not have work for her on Monday. She thereupon asked Gold-
PLAYBOY OF MIAMI, INC. 1623
stein whether her daughter, Isabel, was to come to work on Monday and Goldstein
likewise replied that he didn't have work for Isabel either. A few days later, on
August 12, 1965, Dolores Vivanco had a third conversation with Goldstein. At that
time she told him that she was inquiring about whether she could come back to
work. Goldstein replied that he did not have any work at that time whereupon
Dolores Vivanco told Goldstein that she knew that the Respondent had hired
someone in her place . Goldstein replied that it was true that a woman had been
hired in her place and that the woman needed work. Vivanco replied that she
needed work as much as Maria Henannestas , the replacement employee. At one
point in the latter conversation Vivanco asked Goldstein whether she should go to
the appropriate State office to seek unemployment compensation. Goldstein replied
that she could do whatever she and her daughter wanted to do. He added that he
did not have any more work for her. Vivanco stated that beginning with her
initial employment by the Respondent she worked steadily until her August 1965
layoff, except for an absence of about a week around Christmas 1963 when she
was laid off by Hilda Vila.
Irving Goldstein testified that Dolores Vivanco was not recalled because she had
told Goldstein that her daughter was getting married and Dolores Vivanco was
moving to New York as there was "family trouble." He laid her off because when
he later achieved a busy production schedule he "did not want to get stuck." Gold-
stein added as apparent afterthoughts that be had experienced problems with
Dolores Vivanco She had been ashamed of her production, according to Goldstein,
and he had encouraged her by telling her that she would improve . He also testified
that Vivanco had personality difficulties with Hilda Vila as well as with Goldstein
himself.
Violetta Sosa was employed by the Respondent on October 7, 1963, and worked
until August 6, 1965, when she was laid off. Sosa credibly testified that she signed
a union card either on August 2 or 4, 1965, at the time Carlos Delgadillo, the
union representative , had requested her to sign the card. She also testified she had
a conversation with Goldstein in the plant on the last day of her employment. No
one else was present. Sosa testified that Goldstein asked her if a "Cuban gentleman"
had called her on the telephone and discussed the Union with her. She replied in
the negative. Sosa testified that on August 7, 1965, she engaged in a telephone con-
versation with Armando Menendez who stated that upon the instruction of Gold-
stein he had called her to give her a message that "the girls would not be coming
to work on Monday." On the following Monday and Tuesday, August 9 and 10,
Sosa testified that she had further conversations on the telephone with Goldstein.
Goldstein had called her and told her there was no work available at that time
and that Sosa was to call him on Thursday to see whether work was available.
On the following Thursday Sosa called Goldstein as instructed but was not recalled
to work. She visited the plant the next day at which time she had another conversa-
tion with Goldstein . At that time, in the presence of her husband who had accom-
panied her to the plant and Armando Menendez, Goldstein stated that she was
a good operator and that he would have work for her later, but "there had been a
problem that he had told the other girls that he is going to close the factory up."
Menendez affirmed Goldstein's statement to the girls that he was going to close
down the plant. Menendez added that he had been a friend of the Sosas "quite
awhile" and asked Violetta Sosa whether she had signed a union card. Sosa replied
that she had not been a union member.
Sosa testified that on August 23, 1965, she had three other conversations on the
telephone with Goldstein, and in each instance Goldstein had called Sosa. The first
conversation occurred between 4 and 4:15 p.m. at which time Goldstein stated that
he bad been calling Sosa all day, and told her that toward the end of the year
he would have as much work for her as the other operators. The second conversa-
tion occurred at 5 p.m. on the same day, at which time Goldstein told Sosa that
he wanted her to come to work the next day. She did not answer Goldstein affirma-
tively. The third conversation occurred about 10 p .m. on the same evening; Sosa
testified that she, because of the late hour of night , asked Goldstein what was
wrong. Goldstein told her that he had received a call from a woman inquiring why
he had called Sosa back to work . The woman knew that Sosa was one of the
employees who had signed a union card and that there had been a "union man"
in her house . Sosa asked Goldstein why did he listen to what other people told
him and why did he not ask her directly. Thereupon Goldstein asked her twice
whether she had signed a union card , and said "if you have not signed a union
card , do not belong to the Union , then come to work tomorrow . But if you have
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anything to say, you must just talk to me alone." Sosa testified that she returned
to the -Respondent's plant but did not resume work, as she and her husband, who
was present at the time of the last conversation with Goldstein, agreed that she
should not work under the conditions laid down by Goldstein. The next morning
she visited the plant before Goldstein arrived and she removed her personal effects
and departed.
Goldstein initially testified that he had engaged in one telephone conversation
in August 1965 with Violetta Sosa in which he told her to come back to work.
However, when confronted with his affidavit submitted to a Board agent, he
admitted that he had stated therein that he had called Sosa twice, but still main-
tained that he called Sosa only for the purpose of telling her to come back to work.
Goldstein further admitted on cross-examination that he had stated in his affidavit
that he told Sosa "not to worry," and that she would obtain employment with the
Respondent as soon as work picked up, and that he did not want Sosa "to tell him
anything," and she was to report for work "as she had worked before." Goldstein
also admitted that he had stated in his affidavit that a man who had refused to
identify himself had called Goldstein shortly after his first conversation with Sosa
and told Goldstein that Sosa was "bad." Immediately thereafter he called Sosa
back, and told her to come to work and she would be able to make up for her
lost earnings by working overtime, and Sosa agreed to return. Goldstein explained
that he called Sosa back because of the telephone call from the unidentified person.
Goldstein testified he felt that Sosa would be frightened, as the unidentified person
would contact Sosa as he obviously did not want her to return to work. Goldstein
later changed his testimony that a man had called him and stated that he was not
certain whether it was a man or a woman. He also denied that he mentioned the
Union to Sosa in the course of his conversation with her on the telephone. How-
ever, he admitted that the call was made at night, but was not certain as to the
time of the call.
As stated heretofore, Goldstein did not impress me as being a trustworthy witness.
In this-circumstance and as Violetta Sosa impressed me as being a forthright, truth-
ful witness, I credit her version as to the content of the telephone conversations
she had with Goldstein. I further find and conclude that Goldstein interrogated
Sosa concerning her union membership and told her that she could return to work
on the condition that she was not a member of the Union and talked to no person
other than Goldstein.
Celia Fernandez, employed at the time of the hearing as a machine operator at
the Respondent's plant, testified that she signed a union card on August 8. On
August 9, 1965, the same day Goldstein called a meeting of the employees, Fer-
nandez talked with Hilda Vila who asked Fernandez as she passed her whether
Fernandez had signed a union card. After Fernandez had stated that she had
signed a card at "Mrs. Onelia's that day," Vila did not reply but commented that
she had thought that Onelia Valdez was the one who "was with the Union." On
redirect examination Fernandez repudiated her testimony to the effect that Hilda
Vila had remarked that she thought that Onelia Valdez was a union adherent.
Fernandez was laid off in August and without seeking work fiom the Respondent
obtained employment at another plant. She nevertheless was recalled later and
resumed working for the Respondent. She testified in this connection that when her
former coworkers returned to work they called her and told her that both Gold-
stein and Vila had asked for her and had sent word for her to return to work.
I credit Celia Fernandez' initial testimony that Hilda Vila remarked that she
thought that Onelia Valdez was with the Union rather than her later testimony
that Vila made no such statement .3
Marta Pedron testified that she was present at the August 9 meeting called by
Goldstein. She credibly testified that Goldstein stated at the meeting that he knew
that many of the girls had signed union cards but he did not mind because he was
giving them work regardless of that fact. When Goldstein finished speaking,
Armando Menendez came forward and stated, "Anyway, the Union is not going
to get in because the Union here is a racket." Menendez explained that he meant
8 Celia Fernandez, called by the General Counsel, was a reluctant witness. Although her
name was included in an earlier charge as an alleged discrlininatee, she later told a Board
agent on his visit to the plant that she had authorized no one to make any_ "claims" in
her behalf as she had no reason for such action. In her initial testimony on direct examina-
tion Fernandez impressed me,as being truthful and responding in a straightforward man-
ner to the questions propounded to her. On redirect examination, she impressed me as being
evasive in her answers.
PLAYBOY OF MIAMI, INC . 1625
by his remark that the Union desired "to live off" the money the employees paid
to the Union .4 Notwithstanding Goldstein 's statement that he did not care whether
or not his employees had signed union cards, Pedron stated that about 3 . days after
she signed a union card Olga Rodriguez called her on the telephone and told her
that Goldstein had learned that Pedron had signed a union card and Goldstein
asked Rodriguez to tell Pedron to call him and give him an explanation and he
would "forgive" her for signing the union card . Pedron further testified that as a
consequence she asked her niece , Theresa Sanchez, to call Goldstein on August 19
and tell him that Pedron had signed a union card . Pedron stated that when she
reported for work the next day, Menendez told her he had attempted to reach her
by telephone earlier that morning to tell her not to report because Goldstein had
instructed Menendez there would be no work for Pedron that day. Menendez
thereafter told Pedron nevertheless to stay as she was already there and he would
talk to Goldstein later that morning. Later Menendez told Pedron while Olga
Rodriguez was present that Goldstein said it would be all right for Pedron to work
on one condition , "That when elections came , up I was not to vote in favor of the
Union, that he didn't want me to be a traitor to them." Pedron testified that the
conversations described herein occurred between August 19 and 23, 1965 . Pedron
worked at the Respondent 's plant until she left voluntarily on August 26, 1965.
Theresa Sanchez substantially corroborated Pedron 's testimony and testified
further that Goldstein , in the course of her conversation with him over the tele-
phone, denied making a statement that he was going to fire any employees who
signed a union card and inquired who had told her aunt, Marta Pedron , that Gold-
stein knew about her signing a card . Goldstein concluded the conversation by
asking if Menendez had told her aunt to report for work the next day. Upon
learning that Menendez had not given Pedron any instructions about the next day's
work, Goldstein told Sanchez to tell her aunt to come to work the next day.
Olga Rodriguez, who testified as a witness for the Respondent, stated that she
discussed the matter of Pedron 's signing a union card on the telephone with
Pedron , as Pedron had mentioned while they were in a car that she had signed a
union card . Rodriguez further testified that Pedron was nervous and fearful that
she would be discharged and Rodriguez told Pedron that Goldstein would not
discharge her because of her signing a union card and, in order to allay her fears,
suggested to Pedron that she call Goldstein and tell him that she had signed a union
card. In this respect, Olga Rodriguez testified that Goldstein had asked her if she
had been visited by "the union - man." Rodriguez told Goldstein that the union
representative had been to see her whereupon Goldstein remarked that he already
had knowledge that the union representative had visited the employees at their
homes.
I credit Marta Pedron 's testimony as to the contents of her conversation with
Rodriquez as she impressed me as being a forthright and truthful witness whereas
Olga Rodriguez did not impress me as being a straightforward , truthful witness .5
C. Concluding findings
The Respondent contends that it has not violated the Act in any respect and
urges that its conduct and activities with respect to Onelia Valdez, Isabel Vivanco
Garcia, Dolores Vivanco, and Violetta Sosa, do not constitute a discriminatory
refusal to recall these alleged discriminatees ., It argues that Sosa voluntarily termi-
nated her employment and that the other three did not seek or actively try to
obtain reinstatement , asserting that none contacted the Respondent or any of its
officers or other persons occupying positions of authority with the Respondent to
obtain their recall to work.
The General Counsel argues that even though the Respondent 's operations
experienced a slow season in July 1965 and the alleged discriminatees were laid
off solely for economic reasons, the Respondent nevertheless seized upon the oppor-
tunity presented and did not recall the four girls solely because of their member-
ship in the Union or their activities in its behalf.
' Celia Fernandez substantially corroborated Pedron's testimony in this respect.
5 Apart from being evasive in her testimony Olga Rodriguez testified as to several
matters as to which she alleged she had direct knowledge . Illustrative , she testified that
she had observed the discharge of several pressers whose work was not satisfactory. Upon
being queried as to the names of the individuals, Rodriguez could not name a single
individual who had been discharged for such reason . In this respect she testified "I
imagine that they [ Goldstein and Menendez ] agreed that the person didn't work out."-,
1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is clear from the evidence that the Respondent had knowledge that the four
alleged discriminatees had either engaged in union activity or had signed union
authorization cards. This is revealed in the testimony of Celia Fernandez that after
the meeting called by Goldstein on August 9, 1965, Hilda Vila asked Fernandez
whether she had signed a union card and after she had indicated that she had
signed a card for "Mrs. Onelia," Hilda Vila replied that she thought that Onelia
Valdez was "with the Union." This is also revealed in the credible testimony of
Dolores Vivanco that Goldstein called her after she overheard Hilda Vila pointing
her out to him and her calling his attention to her that "she was the one" and his
asking immediately thereafter, whether the "Cuban man" had visited her, and
whether the union representative had also spoken to her daughter Isabel Garcia.
Moreover, Goldstein's telephone conversation with Violetta Sosa on August 23 as
to which Sosa credibly testified that Goldstein mentioned that an individual had
called and stated that Sosa was "bad," and questioned Goldstein as to why he had
called Sosa back to work, together with Goldstein asking her whether she was a
union member and conditioning her return to work upon her not being a member
of the Union and not talking to anyone but Goldstein, reveal Respondent 's initial
suspicion that Sosa was a union member. This suspicion was confirmed the next
day when Sosa moved her belongings from the plant because she did not desire
to return to work under the aforementioned conditions. It is not disputed, as Gold-
stein himself conceded that 19 employees who had been laid off during the month
of August excluding the 4 alleged discriminatees, were called back to work by the
Respondent not later than August 23. Although Goldstein stated to some of his
employees that he was not opposed to their joining the Union, his conduct and
that of his supervisors belied his words. Notwithstanding Goldstein's testimony
that he had no reason for not calling the four alleged discriminatees back to work,
the four alleged discriminatees were not called back to work and at the time of
the hearing had not been reinstated to their former jobs.
The Respondent's argument that Violetta Sosa voluntarily terminated her employ-
ment fails when viewed in all the surrounding circumstances of Sosa's visit to the
plant. Sosa did not desire to accept reemployment on the conditions laid down
by Goldstein. She clearly did not abandon her employment, as revealed by her
credible testimony that she desired reinstatement. The argument that the other
three alleged discriminatees did not seek reinstatement likewise is lacking in merit.
The evidence is clear that the Respondent's practice with respect to the recall of
laid-off employees was to communicate with such employees by various methods,
including "word of mouth" messages to them delivered by other employees, by
telephone, or by messenger. However, the Respondent made no attempts whatever
to contact the employees in question after it learned of their support of the Union.
Indeed, attempts to obtain recall were fruitless as revealed by the testimony of
Onelia Valdez, the first employee to be laid off, that Goldstein made it clear to her
the day after he learned about her support of the Union that no work was available
for her.
It is inescapable from all the foregoing, when viewed in the light of the union
animus reflected by the interrogation of employees by Goldstein, Vila, and Menen-
dez together with the other acts of interference, that the true reason for the
Respondent's refusal to reinstate Onelia Valdez, Isabel Vivanco Garcia, Dolores
Vivanco, and Violetta Sosa was their membership in, and activities in behalf of,
the Union. I therefore find and conclude that the Respondent, commencing on
August 23, 1965, when work was available and continuing thereafter, discrimina-
torily refused to recall the aforesaid employees in violation of Section 8(a)(3) and
(1) of the Act.
I also find and conclude that the Respondent violated Section 8(a)(1) of the
Act by interrogating its employees as to whether they had signed union cards,
whether they had been visited by the union representative, and by conditioning
employees' recall to work on the promise of the employees not to vote for the
Union, in the event of an election.
I also find and conclude that Respondent, by the statement of Production Man-
ager Goldstein at the August 9 meeting that the employees could do whatever they
wanted to do about the Union and he would do what was best for him, and by the
statement of Supervisor Menendez at the same meeting that the Union would not
come in because it was a "racket" and wanted to "live off" the payments of Respond-
ent's employees, did not violate Section 8(a) (1) of the Act.6
6 The Respondent 's motion to dismiss is granted for this reason but is denied in all
other respects.
PLAYBOY OF MIAMI, INC. 1627
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities as set forth in section III, above, occurring in connection
with the operations of Respondent set forth in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a) (1) and (3) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
I shall further recommend that the Respondent offer Onelia Valdez, Isabel Vivanco
Garcia, Dolores Vivanco, and Violetta Sosa immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice to seniority and
other rights and privileges, and make them whole for any loss of earnings they may
have suffered by reason of the discrimination against them, by payment to them of
a sum of money equal to that which they would have earned as wages from the
date of the discrimination against them to the date of offer of reinstatement less
interim earnings, and in a manner consistent with Board policies set forth in F. W.
Woolworth Company, 90 NLRB 289, to which shall be added interest at the rate of
6 percent per annum as prescribed by the Board in Isis Plumbing & Heating Co.,
138 NLRB 716. The Respondent must also be ordered to cease and desist from
hereafter interrogating employees as to whether they have signed union cards, or
whether they have been visited by union representatives, and conditioning their rein-
statement upon the promise that they would not vote for the Union in the event of
an election. In view of the nature of the unfair labor practices committed, the com-
mission of similar and other unfair labor practices reasonably may be anticipated.
I shall therefore recommend that the Respondent be ordered to cease and desist
from in any manner infringing on the rights guaranteed its employees by Section 7
of the Act.
The Charging Party in its brief requested me to recommend that the Board adopt
a remedy such as was prescribed in H. W. Elson Bottling Company, 155 NLRB 714,
wherein the Board, inter alia, required the Respondent to mail to each of its employ-
ees a copy of the notice after the notice was signed by the Respondent's representa-
tive, in addition to the customary requirement of posting of the notice; and that the
Respondent, upon request of the Union made within 1 month of the Decision, grant
the Union and its representative reasonable access for a 3-month period to its bul-
letin boards in all places where notice to employees were customarily posted, in
addition to furnishing at a mutually agreeable time suitable facilities customarily
used for employees' meetings so that the Union could speak to the employees assem-
bled on company time. The Board prescribed these special remedies in the Elson
case because of the serious acts of interference with the union organizational cam-
paign involved therein. Apart from the fact that there is no allegation herein of a
violation of Section 8(a) (5) of the Act, as was the case in Elson, the allegations of
interference involved herein are not as aggravated and do not approach the magni-
tude of those involved in Elson. I therefore find and conclude that there is an insuf-
ficient basis for recommending that the Board adopt the special remedies requested
by the Charging Party.7
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of the
Act.
2. The Union is a labor organization within the meaning of the Act.
3. By failing and refusing to reinstate Onelia Valdez, Isabel Vivanco Garcia,
Dolores Vivanco, and Violetta Sosa to substantially equivalent positions because of
their union membership and activities, Respondent engaged in discrimination to dis-
courage membership in the Union, thereby engaging in unfair labor practices within
the meaning of Section 8(a) (3) of the Act.
7 Cf. Enpineeis f Fabricators, Inc., 156 NLRB 919, at footnote 16 of the Tiial Examiner's
Decision; Jens Mfg, Inc. 156 NLRB 643, at tootnote 16 of Trial Examiner's Decision;
and N.LR It. v. Ftonnatsc Corp, 347 F 2d 74 (C.A. 2)
162S DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By interfering with, restraining, and coercing its employees in their exercise of
the rights guaranteed them by Section 7 of the Act, including the interrogation of
employees, and the conditioning of employees' recall to work upon their promises
not to vote for- the Union in any subsequent election, Respondent has engaged in,
and is engaging in, unfair labor practices within the meaning of Section 8(a) (1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The allegations of the complaint that Section 8 (a) (1) of the Act was violated
by the Respondent through Production Manager Goldstein's statement to the
employees at the August 9 meeting that they could do whatever they wanted to
about the Union and he would do whatever was best for him; and by Supervisor
Menendez' statement at the same meeting that the Union would not come in because
Respondent did not want it, have not been sustained.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law it is rec-
ommended that Respondent, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or in any other labor organization
by refusing to reinstate, or in any other manner discriminating against employees
in regard to their hire or tenure of employment or any term or condition of
employment.
(b) Unlawfully interrogating employees about their union activities.
(c) Discouraging membership in the Union or any other labor organization by
conditioning employees' recall to work upon their promises not to vote for the
Union in any subsequent Board election.
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization , to form, join, or assist labor organi-
zations, to bargain collectively through representatives of their own choosing, and
to engage in other concerted activity for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such activities.
2. Take the following affirmative action which is necessary to effectuate the poli-
cies of the Act:
(a) Offer Onelia Valdez, Isabel Vivanco Garcia, Dolores Vivanco, and Violetta
Sosa full reinstatement to their former or substantially equivalent positions without
prejudice to their seniority or other rights or privileges, and make them whole for
any loss of pay they may have suffered by reason of the discriminatory refusal to
reinstate them in the manner set forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due and all other rights under the terms of this Recommended
Order.
(c) Post at its plant at Miami, Florida, copies of the attached notice marked
"Appendix." 8 Copies of said notice to be furnished, in both the English and the
Spanish languages, by the Regional Director for Region 12 of the Board, after being
duly signed by Respondent, shall be posted immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in conspicuous places, where
notices to employees are customarily posted. Respondent shall take reasonable steps
to insure that such notices are not altered, defaced, or covered by any other material.
(d) Notify the said Regional Director, in writing, within 20 days from the receipt
of this Decision, what steps Respondent has taken to comply herewith.9
8In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and
Order "
, in the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
JONES & LAUGHLIN STEEL CORP. 1629
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT unlawfully interrogate employees about their union member-
ship and activities in violation of Section 8 (a) (1) of the Act.
WE WILL NOT condition employees' recall to work upon their promises not to
vote for the Union in any subsequent Board elections.
WE WILL NOT discourage membership in any union by discriminatorily refus-
ing to reinstate employees to substantially equivalent positions because of their
union membership and activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activity for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any
or all such activities.
WE WILL offer Onelia Valdez, Isabel Vivanco Garcia, Dolores Vivanco, and
Violetta Sosa full reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority or other rights or privileges, and make
them whole for any loss of pay they may have suffered by reason of the dis-
criminatory refusal to reinstate them, together with interest at the rate of 6
percent.
All our employees are free to become or remain members of any labor
organization.
PLAYBOY OF MIAMI,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NOTE.-Notify Onelia Valdez, Isabel Vivanco Garcia, Dolores Vivanco, and
Violetta Sosa if serving in the Armed Forces of the United States of their right to
full reinstatement upon application in accordance with the Selective Service Act,
and the Universal Military Training and Service Act, as amended, after discharge
from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, Room
826, Federal Office Building, 51 SW. First Avenue, Miami, Florida 33130, Tele-
phone 350-5391.
Indianapolis Plant, Jones & Laughlin Steel Warehouse Division,
Jones & Laughlin Steel Corporation and United Steelworkers
of America, AFL-CIO, Petitioner
Indianapolis Plant, Jones & Laughlin Steel Warehouse Division,
Jones & Laughlin Steel Corporation, Employer-Petitioner and
United Steelworkers of America, AFL-CIO, Union . Cases 25-
RC-3033 and 25-RM-191. October 6, 1966
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
Pursuant to a stipulation for certification upon consent election
executed on October 20, 1965, an election by secret ballot was con-
160 NLRB No. 132.