Rafael Igartua

National Labor Relations Board - Board Decisions

Feb 19, 1969

174 N.L.R.B. 615 (N.L.R.B. 1969)

RAFAEL IGARTUA
Rafael Igartua, Proprietor of Aguadilla Children's
Wear Plant and International Ladies' Garment
Workers Union , Local 600 and 601, AFL-CIO.
Case 24-CA-2497
February 19, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On November 4, 1968, Trial Examiner Alvin
Lieberman, 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. The
Trial Examiner further found that the Respondent
had not engaged in certain other unfair labor
practices alleged in the complaint and recommended
the dismissal of these allegations. Thereafter, the
General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief, and the
Respondent filed cross-exceptions with a supporting
brief and an answering 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.
The Board has reviewed the rulings made by the
Trial Examiner 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 recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that the Respondent,
Rafael Igartua, Proprietor of Aguadilla Children's
Wear Plant, Aguadilla, P.R., his agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, as so
modified:
1. Amend paragraph 1(b) of the Trial Examiner's
Recommended Order by deleting the words "or with
discharge, loss of employment."
2. Amend paragraph 1(d) of the Trial Examiner's
Recommended Order by deleting the words "in any
other manner," and substituting therefor the words
"in any like or related manner."
615
3. Delete the third indented paragraph of the
notice and substitute therefor the following
paragraph:
WE WILL NOT threaten to move our plant, or
otherwise threaten you with reprisals to prevent
you from joining, signing a card for, supporting,
or assisting in any way, International Ladies'
Garment Workers Union, AFL-CIO, or any other
union , or threaten you because you have already
done any of these things.
4. Amend the fourth indented paragraph of the
notice by deleting the words "in any manner," and
substituting therefor the words "in any like or
related manner."
5. Change the last period in the fourth indented
paragraph of the notice to a comma and add the
following: "except to the extent that such right may
be affected by an agreement requiring membership
in a labor organization as a condition of
employment in conformity with Section 8(a)(3) of
said Act."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN , Trial Examiner: The trial in this
proceeding, with all parties represented, was held before
me in Mayaguez, Puerto Rico, on August 12 and 13,
1968, upon a complaint of the General Counsel,' dated
May 31, 1968, and respondent's answer.' In general, the
issues litigated were whether respondent violated Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended (herein called the Act). Particularly, the
questions for decision are as follows:
1. Did respondent engage in independent violations of
Section 8(a)(1) of the Act by coercively interrogating and
threatening employees and by creating the impression that
their activities in support of the Union were under
surveillance?'
2. Did respondent violate Section 8(a)(3) and (1) of the
Act by discharging and failing to reemploy Eugenia
Gonzalez Egipciaco?
Upon the entire record ,4 upon my observation of the
witnesses and their demeanor while testifying, and upon
careful consideration of the arguments made and the
'The complaint was issued on a charge and two amended charges filed,
respectively, on January 26, 1968; March 1, 1968; and April 19, 1968, by
International Ladies' Garment Workers Union, Local 600 and 601,
AFL-CIO (herein called the Union)
'During the trial the complaint was amended to set forth respondent's
name as it appears in the caption The complaint was further amended by
inserting the words "and (1 )" between the words "Section 8(a)(3)" and "of
the Act" in paragraph IX Also during the trial, changes were made in the
answer. Paragraph 2 was amended so as to admit the allegations of
paragraph III of the complaint and the first affirmative defense was
deleted.
'At the trial respondent moved to dismiss the complaint insofar as it
alleged violations of Section 8(aXi), contending that because the charge
referred to those violations in general language only there was absent the
necessary relationship between the charge and complaint . I denied this
motion In his brief respondent urges, in essence , that I reconsider my
ruling, and I have done so. Having reconsidered and having taken into
account respondent 's further arguments and the cases cited in support of
his position , I find no convincing reason for not adhering to my original
decision . See; in this regard, Hotel Conquistador , Inc, 159 NLRB 1220,
1223-24, affd in pertinent part 398 F 2d 430 (C A. 9, July 10, 1968).
Certain errors of the transcript have been noted and corrected.
174 NLRB No. 100
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
briefs submitted by the General Counsel and respondent, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is engaged in Aguadilla, Puerto Rico, as a
sewing contractor for The Baylis Brothers Co. (herein
called Baylis) of Cincinnati, Ohio, a manufacturer of
children's wearing apparel. During 19675 respondent sewed
and shipped girls' dresses valued at more than $50,000 to
Baylis or to its customers located in various States of the
United States. Accordingly, I find that respondent is
engaged in commerce and that the assertion of jurisdiction
over this matter by the National Labor Relations Board
(herein called the Board) is warranted. Siemons Mailing
Service, 122 NLRB 81, 85; Cantera Providencia, 111
NLRB 848.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Briefly, this case concerns itself with events which
occurred during the Union's campaign to organize
respondent's employees. Among these, the complaint
alleges, was respondent's interrogation of, and threats to,
employees; his creation of the impression among
employees that their efforts in support of the Union's
organizing campaign were being monitored; and his
discharge of, and refusal to reinstate, one employee,
Eugenia Gonzalez Egipciaco (herein subsequently called
Gonzalez).
The General Counsel contends that Gonzalez' discharge
and respondent's subsequent refusal to reemploy her
comprised separate violations of Section 8(a)(3) of the
Act, and that respondent's other conduct was
independently violative of Section 8(a)(1).' For his part,
respondent denies that he engaged in the independent
violations of Section 8(a)(1) set forth in the complaint.
Concerning his alleged infringement of Section 8(a)(3)
respondent's position is that cause existed for Gonzalez'
dismissal and his later refusal to rehire her.
'Unless otherwise noted all dates referred to in this Decision fall within
1967.
'In pertinent part these sections provide.
Sec 8 (a) - It shall be an unfair labor practice for an employer -
(1) to interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed in section 7;
(3) by discrimination in regard to hire or tenure of employment
to encourage or discourage membership in any labor organization.
Section 7 , insofar as relevant, provides as follows.
Sec 7 Employees shall have the 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
activities for the purpose of collective bargaining or other mutual aid or
protection.
B. Preliminary Facts
1. Respondent's business
As already noted, respondent is a sewing contractor in
the children's wearing apparel industry. He works only for
Baylis, a manufacturer of girls' dresses. In the regular
course of their respective operations Baylis sends cut cloth
and other components of a finished garment to respondent
who assembles the pieces and sews them into dresses.
These are then shipped by respondent to Baylis or to its
customers.
It was respondent's practice to meet with his employees
from time to time, as the occasion demanded. At these
meetings production and related matters appear to have
been the principal, but not the only, topic of discussion. In
this connection, after the Union's organizing drive began,
which will be more fully discussed below, the Union
became a subject of conversation at at least'one of these
assemblies.
Prior to October 20, respondent's employees were
divided into two groups, known as Section A and Section
B. Each independently of the other performed similar
work; i.e., the conversion of the cut cloth and other
components into finished dresses. In each group there was
one employee called a bias cordoner, whose function
consisted of inserting a bias cord at the waist of a dress.
After the insertion of the bias cord the dress, which was
still unfinished, was passed on to other employees for the
performance of additional operations leading to a finished
product.
The bias cordoner in Section A was Claripsia Arce.
Gonzalez, whose discharge and failure of reinstatement is
alleged in the complaint as being violative of Section
8(a)(3) of the Act, was the bias cordoner in Section B.
2. The layoff of Section A
As respondent testified, in September he began to
"experienc[e] a crisis in [his] factory." The quality of the
work being turned out at respondent's plant was
deteriorating This condition worsened and at the end of
September Baylis notified respondent, by letter, that, as
he further testified, unless respondent was "more careful
in doing [his] work [Baylis] would stop sending work to
[respondent] and send this work to other contractors."
Upon receipt of this letter respondent called his
employees to a meeting, read the letter to them in Spanish
translation, and urged them to improve the quality of
their work. The consequence of their not doing so, as
respondent and the letter both made plain to the
assembled employees, was respondent's loss of his
contract with Baylis. After the meeting respondent posted
the letter from Baylis on a plant bulletin board.'
Because the work continued to be badly done Baylis, by
letter dated October 12, informed respondent that it was
"going to reduce drastically the quantity of work [sent to
respondent] from [a] normal average of 750 dozen per
week to 350 dozen per week until such time as the quality
of [respondent's] workmanship has improved."8 As a
result of this sharp reduction in the amount of work
received from Baylis, respondent, on October 20, laid off
all the employees working in Section A, including Arce,
that group's bias cordoner.
'Respondent credibly testified, in this respect, that he placed the letter
"on the bulletin board so that all these girls that knew English would read
it and tell the other girls "
'This letter was received in evidence as respondent's Exhibit 2.
RAFAEL IGARTUA 617
3 The Union's organizing campaign
Starting in August the Union began its campaign to
organize respondent's employees. To this end union
organizers and employees who supported the Union visited
employees at their homes, spoke favorably to them about
the Union, and solicited their signatures to cards
authorizing the Union to be their collective-bargaining
representative. Gonzalez, the subject of the complaint's
discrimination allegations, appears to have been one of the
chief employee participants in this activity.
In August, almost at the very beginning of the Union's
campaign, Andrea Lopez Rivera, an organizer, thinking
that Hilda Matos, a floorlady at respondent's plant, was a
rank-and-file employee and not a supervisor,' visited her
at her home, informed her that "the workers were
interested in organizing and joining the [Union]," and
sought her signature to an authorization card. Matos,
however, refused to sign.10
In addition to the foregoing the Union used other
methods to gain support among respondent's employees.
It distributed souvenirs and, starting during the first week
of October, Jesus Ferrer, the Union's principal organizer,
addressed them from time to time over a loudspeaker
from a position in front of respondent's plant."
C. Facts Concerning Respondent's Alleged
Independent Violations of Section 8(aX I) of the Act
The complaint alleges that respondent interrogated
employees concerning the Union, threatened employees
for supporting the Union, and told employees that he
knew the identity of those who had signed cards
authorizing the Union to be their representative. Despite
respondent's denial of these allegations of the complaint, I
find that respondent did engage in such conduct. I further
find, insofar as respondent's interrogation is concerned,
that the employee questioned was not informed that her
answer would not subject her to reprisal or that she could
remain silent.
'Matos' supervisory status is conceded in respondent 's brief.
"My findings in this regard are based upon, and the quotation taken
from, Rivera's credible testimony
"Four witnesses testified that they heard Ferrer speak to employees in
this manner . Two, respondent and one of his employees, Virginia
Quinones, were unable , with any degree of certainty , to fix the date on
which Ferrer started this practice. Quinones ' memory was faulty in this
regard and she could recall only that it was before January 1968. Although
respondent testified that "the first time [he remembered seeing] Mr Ferrer
with a loudspeaker was around the first days of January after Three Kings
Day [January 6]," he earlier testified that he did not , and could not,
"remember the first time" this occurred , but was "pretty sure" that it did
not happen in October Opposed to this inconclusive and vacillating
testimony as to the beginning of Ferrer' s use of a loudspeaker is the
positive testimony of Matos, respondent 's floorlady, and Gonzalez Matos
testified that Ferrer began to use the loudspeaker in December. Gonzalez
stated that he started to do so in October during which Ferrer "used to go
to [the front of respondent' s plant ] every week . with loudspeakers." As
between this conflicting testimony I credit that given by Gonzalez, who
impressed me very favorably by her demeanor while on the witness stand
On the other hand, Matos created an opposite impression Furthermore,
although Matos testified that she had never heard about the Union prior to
December when, as she stated , Ferrer commenced using a loudspeaker, she
did not deny having been visited in August by Rivera, a representative of
the Union , who informed her of the Union's organizing campaign and
asked her to sign an authorization card. For the foregoing reasons I have
found that Ferrer's use of a loudspeaker outside respondent's plant began
early in October.
The credible evidence discloses only one instance of
employee interrogation by respondent. On October 10
Virginia Rios, who was then employed as a sleeve closer
by respondent, signed a union authorization card at the
instance of Gonzalez, whose discharge on October 27 is
alleged in the complaint as having been violative of
Section 8(a)(3) of the Act. About a week after Gonzalez'
dismissal respondent asked Rios whether she "had signed
any card for the Union?" Rios admitted that she had and
volunteered the information that the card had been given
to her by Gonzalez
Respondent's threat to his employees was made on
about October 13 at one of the frequent meetings which
respondent had with his employees. At this one he
informed the employees of the contents of the letter, dated
October 12 which he had just received from Baylis
notifying him of the drastic reduction in the amount of
work which it would send to respondent.
Not only did respondent, at this meeting make known
to his employees that Baylis had reduced the quantity of
dresses that would be sent to him to be sewn, but
respondent also talked about the Union. In this
connection, as Gonzalez, upon whose testimony my
findings as to the events of the meeting under discussion
are based, testified, respondent stated that "if the union
won [the plant would be taken] to Barbados."1 z
Another statement respecting the Union made by
respondent at the meeting under discussion related to his
knowledge of who were in its support. In this regard,
respondent pointed to 14 employees and said that he had
"learned that they had signed the cards.""
'"Gladys Perez, who, like Gonzalez, had been discharged on October 27,
but whose dismissal is not claimed by the General Counsel to have
contravened the Act, testified that respondent made additional threats at
other meetings Perez also testified that she was called to respondent's
office and there asked by respondent whether she was "talking something
about the union " However, no mention of these threats or of her
interrogation appears in Perez' pretrial affidavit When this was pointed
out to Perez at the trial she weakly agreed to the suggestion that perhaps
the Board agent before whom the affidavit was subscribed "forgot to put it
there." In view of the nature of the threats ands interrogation to which
Perez testified it is hardly conceivable that had she, in fact, related them to
the Board agent investigating the charges filed by the Union he would not
have included them in the affidavit he prepared for her signature
Accordingly, I do not believe her trial testimony as to her interrogation or
respondent's threats. See, in this connection , Tidelands Marine Service,
Inc., 126 NLRB 261, 263 Other testimony given by Perez has been
credited only to the extent that there is in the record' corroborative
evidence of a credible nature
"Gonzalez' testimony as to respondent 's references to the Union at the
meeting in question was directly countered by three witnesses called by
respondent, Elsie Carrero , Quinones, and Matos , and indirectly by
respondent , himself. All have given me reason for disbelieving their
testimony Thus, Carrero testified that she attended employee meetings
from September through November and that at none did respondent
"mention anything about the union." In virtually the next breath, however,
she stated that respondent did talk about "union cards ." Quinones and
Matos testified that they, too, attended meetings during the same period
and that respondent, who spoke at each, did not make any statement
relating to the Union. Quinones said, additionally , that respondent 's first
reference to the Union occurred at a meeting in January 1968 In footnote
11, above, I discussed Quinones faulty memory with respect to the time
when Ferrer, the Union's organizer , started to address employees over a
loudspeaker . Her memory being imperfect in that respect, I cannot rely on
her testimony as to when respondent began to mention the Union. Insofar
as Matos is concerned , the same footnote contains my comments as to her
incredibility as a witness Accordingly, I do not believe her in regard to the
matter under discussion. Respondent testified that he first became aware of
the Union's organizing campaign in January 1968 when "Ferrer used to
come around with a loud speaker" In this manner respondent, by
implication , denied that he discussed the Union at the meeting held on
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Contentions and Concluding Findings Concerning
Respondent 's Alleged Independent Violations of
Section 8(a)(1) of the Act
The General Counsel contends that, as alleged in the
complaint , respondent violated Section 8(a)(1) of the Act
by interrogating employees concerning the 'Union, by
threatening them with reprisals for supporting the Union,
and, in essence , by creating the impression that their
activities with respect to the Union were under
surveillance . Although respondent has denied these
allegations , his denials have been overcome by the proof.
Considering the foregoing matters in the order in which
they have been set forth , the evidence shows that on about
November 3 respondent asked Rios , one of his employees,
whether she had signed a union authorization card.
Inasmuch as Rios was not assured by respondent that no
action would be taken against her if she answered and
that she could , with impunity , remain silent , I find that
her questioning by respondent was coercive and, therefore,
violative of Section 8(a)(1) of the Act . Cohen Bros. Fruit
Company, 166 NLRB No. 2.
The next matter for consideration , insofar as this phase
of the case is concerned , is respondent 's statement at the
meeting of October 13 that "if the union won [the plant
would be taken] to Barbados." Much need not be said,
nor is there need for citatin^_ of authority , to establish the
violative nature of this remark . Threats of plant closure or
removal should a labor organization become the
representative of employees have long been held to be
coercive and within the ambit of Section 8(a)(1).
I also find that respondent violated Section 8(a)(1) of
the Act by telling employees at the meeting he had with
them on October 13 that he had "learned" that 14 of
those present "had signed [union] cards. " By saying this
respondent fostered the notion that the activities of
employees in support of the Union were being monitored.
That the evidence does not show that respondent actually
spied upon the employees who signed the cards is not
important . What is significant is that respondent's
comment "plainly created an impression of surveillance
[which] tended to restrain and interfere with employees in
the exercise of their rights guaranteed under the Act."
Mitchell Plastics , Incorporated , 159 NLRB 1574, 1576.
See also Edinburg Manufacturing Company, 164 NLRB
No. 18, enfd . 394 F.2d 1 (C.A. 4).
Accordingly , I conclude that respondent committed
unfair labor practices within the meaning of Section
8(a)(1) of the Act by coercively interrogating an employee
as to whether she signed a card authorizing the Union to
be her collective-bargaining representative , by threatening
to move his plant in the event the Union became the
collective-bargaining representative of his employees, and
by creating the impression that the activities of employees
in support of the Union were under surveillance.
E. Facts Concerning Respondent 's Violations of
Section 8(a)(3) of the Act
8, 1968, her request for reemployment was denied. The
complaint alleges that Gonzalez' discharge and
respondent's subsequent refusal to reemploy her were
violative of Section 8(a)(3) of the Act.
Gonzalez, a staunch union supporter, participated in the
Union's organizing campaign from its inception. To this
end, among other things, she visited employees of
respondent at their homes and spoke to them in favor of
the Union; distributed, and solicited signatures to, union
authorization cards; and submitted names and addresses
of employees to union organizers.
During her tenure as an employee in respondent's plant
Gonzalez turned out work of good quality, but she has
always worked slowly and was frequently absent. Because
of her slowness and absences respondent was required
from time to time to assign another employee, who
normally performed a different operation, to assist in the
bias cordoning work. This was done because a tieup in the
bias cordoning work resulted in corresponding delays
further along in the production process.
It will be recalled that respondent's employees had been
divided into two groups, known as Section A and Section
B, and that on October 20, because of a sharp reduction
in respondent's work all employees in Section A were laid
off. Gonzalez was a member of Section B. Claripsia Arce
was her opposite number in Section A.
Gonzalez and Arce were the only regular bias cordoners
in the plant. Other employees who may have performed
this operation did so only when Gonzalez' low output
impeded the work of other employees who followed her in
the line of production.
The quality of the work done by Arce and Gonzalez
was equal. Arce, however, worked at a faster pace and, as
respondent testified, "with good attendance."
Respondent's records, which were received in evidence and
which I have no reason to disbelieve, show, in this
connection, that from April 3 through October 20 Arce's
production was 24-percent higher than Gonzalez'.
Respondent's records also show that from January until
October 27, the date on which Gonzalez was discharged
she was absent on 20 occasions for either a full day or
part of a day.15
On October 27, one week after all the employees in
Section A were laid off, Gonzalez' employment was, as
she put it, "suspended." Four other members of Section B
were "suspended" at the same time." All were told by
Matos, respondent's floorlady, as Gonzalez further
testified, "that she was laying [them] off so that they
could give an opportunity to work to . . . five [ir Section
A] that bad been laid off before."
On October 30, the first working day after Gonzalez'
discharge, Arce was put to work in her -place. On the
same day four other employees who, like Arce, had been
members of Section A and laid off on October 20
replaced the four employees who were discharged with
Gonzalez. Respondent' s reason for not immediately
replacing Gonzalez with Arce upon the layoff of Section
A was, in essence , that he felt that in order to be fair to
both groups he refrained from selecting particular
Eugenia Gonzalez began to work in respondent's plant
as a bias cordonerl4 in about 1958. Before that she worked
for respondent at her home for a period of some 6 years.
On October 27 Gonzalez was discharged and on January
October 13. I have found, however, that Ferrer commenced addressing
respondent's employees over a loudspeaker early in October . Inasmuch as
respondent must have heard Ferrer when he spoke in this manner I place
no credence on his indirect denial of Gonzalez' testimony.
"It will be remembered that the function of a bias cordoner is to insert a
bias cord at the waists of the dresses sewn in respondent 's plant.
"Respondent's records showing Arce's attendance from the beginning of
1967, were not offered in evidence. Those records which were received,
however, show that from April 3 through October 20 Arce was absent 2
1/2 days, whereas Gonzalez, during this period was absent 11 times, 5 full
days and parts of 6.
"No claim is made by the General Counsel that the "suspensions" of
these four employees involved violations of the Act
RAFAEL IGARTUA
employees in either group for layoff, but laid off all the
employees in one and retained all the employees in the
other.
Early in January 1968 respondent reinstated several
employees who had previously been laid off. He also hired
some who had never before worked in his plant. Learning
of this Gonzalez, on January 8, 1968, applied to
respondent for employment. She was told, however, that
there was no work for her.
F. Contentions and Concluding Findings Concerning
Respondent's Alleged Violations of Section 8(a)(3) of
the Act
Throughout this proceeding respondent has maintained
that Gonzalez was discharged and not reemployed because
of her low production and frequent absences. Brushing
this contention aside as a pretext, the General Counsel
argues that Gonzalez' discharge and respondent's
subsequent refusal to reemploy her were violative of
Section 8(a)(3) of the Act. To bolster his pretext position
the General Counsel, in his brief, points to the fact that
although Gonzalez' low production and frequent absences
were matters of long standing and were known to
respondent for a substantial period of time before her
dismissal, she was not discharged because of these
shortcomings until after the Union, which she stauchly
supported, began to organize respondent's employees.
There appears to be a modicum of support for the
General Counsel's stand. Respondent testified, in essence,
that because he wanted to be fair to all employees when it
became necessary for him to lay off half his force he did
not pick and choose among them. Instead, he laid off
Section A in its entirety and retained all employees in
Section B. Yet, a week later he did become selective. He
replaced five employees in Section B, including Gonzalez,
with five employees in Section A, including Arce. Why
respondent did on October 27 what he felt was not fair for
him to have done on October 20 has not been fully
explained. Because of this Gonzalez' discharge on October
20 is suspicious.
But, as has been held countless times, suspicion is not a
substitute for proof. Despite respondent's long knowledge
of Gonzalez' low production and frequent absences, the
opportunity to do something about this state of affairs did
not present itself until after, the employees in Section A,
including Arce, had been laid off. This layoff made
available for the first time, insofar as is shown by the
record, a suitable substitute for Gonzalez. This substitute,
Arce, was the only other employee in the plant who
regularly performed the same kind of work that Gonzalez
did. Arce's production was considerably higher than
Gonzalez' and her absences much less frequent. For these
reasons, I cannot find on the proof before me that
respondent's asserted grounds for discharging Gonzalez on
October 27, which, unlike the explanation offered by the
employer in another case,17 do not "fail to stand under
scrutiny," are pretextual and that she was actually
discharged because she supported the Union.
There is yet another basis for dismissing the
complaint's allegation that Gonzalez' employment was
terminated in violation of Section 8(a)(3) of the Act. The
foregoing discussion was based on the assumption that
respondent knew at the time of Gonzalez' discharge that
she was a union activist. But the evidence does not show
this to be the case. It shows only that respondent's first
619
knowledge of Gonzalez' prounion conduct was acquired
about a week after her discharge when respondent was
informed by Virginia Rios, who was then in his employ,
that Gonzalez had given her a union card. The absence of
evidence establishing respondent's awareness of Gonzalez'
support of the Union prior to her discharge not only
negates the General Counsel's pretext argument,18 but also
requires the dismissal of the violative discharge allegations
of the complaint. Lyn-Flex Industries, Inc., 157 NLRB
598, 599-600.
The final matter for determination is whether
respondent's refusal to reemploy Gonzalez on January 8,
1968, was discriminatory as the General Counsel urges.
As noted, respondent contends that Gonzalez was not
rehired for the same reasons which prompted her
discharge, which I have found was not shown to have been
violative of Section 8(a)(3) of the Act.
Between the time of her discharge and the date on
which Gonzalez requested reemployment respondent had
become aware that she had engaged in activities on behalf
of the Union. It is well settled, however, that an
employer's knowledge that an employee supports a labor
organization does not guarantee the employee a job. Such
a person may be discharged or refused employment on
any ground unless "the real motivating purpose is to do
that which Section 8(a)(3) forbids." N,L.R.R. v.
McGahey, 233 F.2d 406, 413 (C.A. 5).
Gonzalez was discharged on October 27 because of her
low production and frequent absences. The only new fact
which intervened between Gonzalez' discharge and
respondent's refusal to reemploy her was respondent's
acquisition of knowledge,that she was an adherent of the
Union. I was not satisfied, on the assumption that
respondent had this knowledge, that Gonzalez' support of
the Union was the "motivating purpose" in her discharge.
I am equally unsatisfied, for the same reasons, that
respondent's refusal to reemploy Gonzalez after he
actually acquired knowledge that she favored the Union
was motivated by a purpose other than the one which
moved him to discharge her in the first place.
In short, although suspicion also exists in this respect,
the proof adduced by the General Counsel does not
convince me that respondent infringed upon Section
8(a)(3) of the Act by refusing to rehire Gonzalez.
Accordingly, upon consideration of the entire record, I
conclude that the General Counsel has not sustained his
burden of proving by a preponderance of the evidence that
respondent violated Section 8(a)(3) of the Act by
discharging Gonzalez on October 27 or by refusing to
reemploy her on January 8, 1968. I will, therefore,
recommend that paragraphs VI, VII,, and IX of the
complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's activities to the extent found violative of
the Act occurring in connection with its operations set
forth in section I, above,, have a close, intimate, 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 of
commerce.
'7N.L R. B. v. Dant, 207 F 2d 165, 167 (C.A. 9). "See, in this regard , TomkinsJohnson Co., 172 NLRB No. 250.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act,
my Recommended Order will direct respondent to cease
and desist therefrom and to take such affirmative action
as will effectuate the purposes of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2(6) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By coercively interrogating an employee as to her
signing a card authorizing the Union to represent her in
collective bargaining respondent has engaged, and is
engaging , in an unfair labor practice within the meaning
of Section 8(a)(1) of the Act.
4. By threatening employees that his plant would be
moved in the event the Union became the
collective-bargaining representative of his employees
respondent has engaged, and is engaging, in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
5. By creating an impression among his employees that
their activities in support of the Union were under
surveillance respondent has engaged, and is engaging, in
further unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
6. Respondent did not engage in an unfair labor
practice within the meaning of Section 8(a)(3) or (1) of
the Act by discharging Eugenia Gonzalez Egipciaco on
October 27.
7. Respondent did not engage in an unfair labor
practice within the meaning of Section 8(a)(3) or (1) of
the Act by refusing to reemploy Eugenia Gonzalez
Egipciaco on January 8, 1968.
8. The unfair labor practices engaged in by respondent,
as set forth in Conclusions of Law 3, 4, and 5, above,
affect commerce within the meaning of Section 2(6) and
(7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record in this case, I hereby issue the
following:
RECOMMENDED ORDER
Rafael Igartua, proprietor of Aguadilla Children's
Wear Plant, his agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their,
or other employees' membership in, activities in support
of, attitudes toward, desires regarding, relationship to, or
matters concerning International Ladies' Garment
Workers Union, Local 600 and 601, AFL-CIO, or any
other labor organization.
(b) Threatening employees with plant closure or with
the removal of his plant from Aguadilla, Puerto Rico, or
with discharge, loss of employment or any other form of
reprisal for joining, assisting, or engaging in any activity
in support of International Ladies' Garment Workers
Union, Local 600 and 601, AFL-CIO, or any other labor
organization, or threatening employees with similar
reprisals conditioned on the event that the foregoing
named labor organization or any other becomes their
collective-bargaining representative.
(c) Engaging , attempting to engage , or giving the
impression of engaging , in surveillance of employees'
activities on behalf, or in support , of International Ladies'
Garment Workers Union, Local 600 and 601, AFL-CIO,
or any other labor organization.
(d) In any other manner interfering with, restraining, or
coercing 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 , or to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection as
guaranteed in Section 7 of the National Labor Relations
Act, as amended , or to refrain from any or all such
activities , except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment in conformity
with Section 8(a)(3) of said Act.
2. Take the following affirmative action , which it is
found, will effectuate the policies of the National Labor
Relations Act, as amended:
(a) Post at its premises copies of the attached notice
marked "Appendix ."" Copies of said notice , and copies of
Spanish translations thereof, on forms provided by the
Regional Director for Region 24 of the National Labor
Relations Board , after being duly signed by an authorized
representative of respondent , shall be posted by
respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places , including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by respondent to insure that said notices are not
altered, defaced , or covered by any other material.
(b) Notify said Regional Director , in writing , within 20
days from the receipt of this Decision, what steps
respondent has taken to comply herewith.20
IT IS FURTHER ORDERED that the complaint be, and it
hereby is , dismissed insofar as it alleges unfair labor
practices not specifically found herein.
"In 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 Boar"d'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 "
3°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 respondent
has taken to comply herewith."
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
Relations Act, as amended, we hereby notify our
employees that:
After a trial in which both sides had an opportunity to
present their evidence, it has been found that we violated
the law by committing unfair labor practices. Accordingly,
we post this notice and we will keep the promises that we
make in this notice.
WE WILL NOT question you in any way about the
International Ladies' Garment Workers Union,
RAFAEL IGARTUA
AFL-CIO, or any other union.
WE WILL NOT spy on your activities in support of the
International Ladies' Garment Workers Union,
AFL-CIO, or any other union , nor will we spy on what
you are doing to bring in a union to represent you.
Also WE WILL NOT do or say anything to make you
think that we are spying on you as you do any of these
things.
WE WILL NOT threaten to do, or do, any of the
following things to prevent you from joining, signing a
card for, supporting , or helping in any way,
International Ladies ' Garment Workers Union,
AFL-CIO, or any other union , or because you have
already done any of these things:
Close our plant or move it away from Aguadllla.
Go out of business or discontinue any part of our
business.
Fire you.
Lay you off.
Reduce your hours of work.
Anything else which will be to your disadvantage.
WE WILL NOT in any manner interfere with , restrain,
or coerce you in the exercise of any rights guaranteed
to you by the National Labor Relations Act. In this
connection , WE WILL respect your rights to
621
self-organization , to form , join , or assist any union, to
bargain collectively through any union or representative
of your choice as to wages , hours of work , and any
other term or condition of employment . You also have
the right , which WE WILL also respect , to refrain from
doing so.
All our employees are free to become or remain, or not
to become or remain , members of International Ladies'
Garment Workers Union , AFL-CIO, or any other union.
RAFAEL IGARTUA,
PROPRIETOR OF
AGUADILLA CHILDREN'S
WEAR PLANT
(Employer)
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 material.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board's Regional Office, 7th Floor, Pan
Am Building, 255 Ponce de Leon Avenue, Hato Rey,
Puerto Rico 00919, Telephone 724-7171, Extension 123.