Soft Touch Shoe Co.

National Labor Relations Board - Board Decisions

Jul 3, 1962

137 N.L.R.B. 1162 (N.L.R.B. 1962)

1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I further recommend that, unless within the prescribed period the Respondent
notifies the said Regional Director that it will comply with the foregoing Recom-
mended Order, the National Labor Relations Board issue an order requiring the
Respondent to take the action aforesaid.
I further recommend that the complaint be dismissed insofar as it alleges that the
Respondent discriminatorily discharged W. J. Williamson and L . D. Peel and .that
it engaged in acts of surveillance of union meetings , or any other acts or conduct in
violation of the Act, except as specifically found herein.
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their affiliation with
Amalgamated Association of Street Electric Railway and Motor Coach Em-
ployees of America, AFL-CIO, or their sympathies or activities in that organiza-
tion, in a manner constituting interference , restraint, or coercion.
WE WILL NOT promise benefits to our employees if they withdraw from or
cease their activities on behalf of the above -named Union.
WE WILL NOT threaten our employees with loss of employment if they do
withdraw from and cease their activities on behalf of the above-named Union.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of the right to self-organization , to form labor
organizations , to bargain collectively through representatives of their own
choosing, and to engage in any other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection , or to refrain from any and
all such activities.
FORT WORTH . TRANSIT Co ., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 300 West
Vickery , Room 2093 , Fort Worth, Texas, Telephone Number, Edison 5-5341, Ex-
tension 284, if -they have any question concerning this notice or compliance with its
provisions.
Leo Rosenblum , d/b/a' Crown Handbag of California , and d/b/a
Soft Touch Shoe Co. and . L.A. Leather, Luggage & Handbag
Workers Union , Local 213 L, AFL-CIO. Case No. 21-CA-4525.
July 3; 1962
DECISION AND ORDER
On May 1, 1962, Trial Examiner Ramey Donovan issued his Inter-
mediate Report 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 Intermedi-
ate Report. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint, and recommended that these allegations be dismissed.
137 NLRB No. 124.
CROWN HANDBAG OF CALIFORNIA , ETC. 1163
Thereafter , the General Counsel filed exceptions to the Intermediate
Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three -member panel [ Chairman McCulloch and Members
Rodgers and Fanning].
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 Inter-
mediate Report, the exceptions and brief , and the entire record in
this case , and hereby adopts the findings , conclusions ,' and recom-
mendations of the Trial Examiner , with the following modifications
in the remedy as hereinafter set forth.
THE REMEDY
The Trial Examiner found that, on September 19, 1961, Respondent
discriminatorily laid off Jesus Angel Velasco, Fernando Ornellas, and
Frank Zamora, and on September 21, 1961, discriminatorily laid off
Consuelo Campoy, in violation of Section 8(a) (3) of the Act. With
respect to Velasco, Ornellas, and Zamora, the Trial Examiner con-
cluded that these employees would have been laid off for economic
reasons at some indeterminate date in late September and therefore
recommended no backpay remedy as to them. Because Respondent
had heard that these three employees had obtained better-paying jobs
elsewhere, the Trial Examiner did not recommend that Respondent
offer them reinstatement although the record shows that new em-
ployees were hired after the layoff of these discriminatees in jobs pre-
viously performed by them. With respect to Campoy, the Trial Ex-
aminer also concluded that this employee would have been laid off for
economic reasons sometime in September and recommended no back-
pay be awarded her.' The General Counsel has excepted to the Trial
Examiner's failure to fashion an appropriate remedy for these
individuals.
Although Velasco, Ornellas, Zamora, and Campoy would have been
laid off for valid business reasons sometime in September, even absent
Respondent's unfair labor practices, we perceive no warrant for the
Trial Examiner's denial of a backpay remedy to them, particularly
when the Trial Examiner himself found it impossible to determine on
this record when the layoffs would normally have occurred. In such
Ilia the absence of exceptions thereto, we adopt the Trial Examiner 's findings and con-
clusions pro forma.
2 The Trial Examiner did recommend that Respondent offer Campoy reinstatement in
the event that Respondent had hired new employees since September 21, 1961, for work
that Campoy was qualified to perform, by the displacement of such new employees.
Alternatively, he recommended that Campoy be offered reemployment to her former or
substantially equivalent position as soon as such job opportunity occurred we concur in
his remedial treatment of this aspect of the case
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances, it is the Board's usual practice to order a backpay
remedy, taking into consideration in computing backpay due to em-
ployees the* periods during which they would have been in layoff status
for economic reasons 3 We shall accordingly fashion such a backpay
remedy in this case. Backpay shall be computed on a quarterly basis
in the manner established by the Board in F. W. Woolworth Company,
90 NLRB 283.
The Trial Examiner declined to recommend reinstatement for Ve-
lasco, Ornellas, and Zamora on the ground that Respondent had heard
that these employees had obtained better-paying jobs elsewhere. The
record discloses that new employees were hired to fill their positions
after they had been discriminatorily laid off. Where employees have
been discriminatorily separated from their jobs, the Board orders that
they be offered reinstatement to their former or substantially equiv-
alent positions. Only when such offer has been made and unequiv-
ocably rejected by employees is an employer relieved of his duty to
reinstate. In this case, Respondent testified that it had heard from
some unidentified employees in the plant that the three discriminatees
had employment elsewhere. However, at no time since their discrim-
inatory layoff on September 19, 1961, has Respondent made them an
.offer of reinstatement. Accordingly, we shall order Respondent to
offer to Velasco, Ornellas and Zamora immediate and full reinstate-
ment to their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges, dismiss-
ing, if necessary, all employees hired since then. Of course, if in
fact Velasco, Ornellas, and Zamora have obtained substantially equiv-
alent employment and do not desire reinstatement, this may be con-
sidered at the compliance stage of this proceeding.'
In view of the nature, variety, and extent of the unfair labor prac-
tices committed, we shall order Respondent to cease and desist from
infringing in any other manner upon the rights of employees guaran-
teed by Section 7 of the Act..
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Leo Rosenblum,
d/b/a Crown Handbag of California, and d/b/a Soft Touch Shoe Co.,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership of any of its employees in L.A.
Leather, Luggage & Handbag Workers Union, Local 213 L, AFL-
CIO, or in any other labor organization, by discharging or laying off
8 See Jack G. Buncher, d/b/a The Buncher Company , 131 NLRB 1444, 1445.
11 See Marlin Firearm8 Company, 110 NLRB 1834, 1840.
CROWN HANDBAG OF CALIFORNIA, ETC. 1165
any employee, or in any other manner discriminating against any
employee in regard to hire, tenure of employment, or any term or
condition of employment, except as authorized by Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
(b) Interrogating any of its employees with respect to their activ-
ity, membership, or interest in any labor organization, or threatening
them with economic reprisal, in a manner constituting interference,
restraint, or coercion in violation of Section 8(a) (1) of the Act.
(c) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form,
join, or assist any labor organization, to bargain collectively through
representatives of their own choosing, to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, 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, as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Jose Isabel Flores immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and make him whole for
any loss of pay in accordance with the method set forth in the section
of the Intermediate Report entitled "The Remedy."
(b) Offer to Consuelo Campoy reinstatement to her former or sub-
stantially equivalent position, when such is available, without preju-
dice to her seniority and other rights and privileges. In the event that
Respondent has hired one or more new employees since September 21,
1961, to perform work that Campoy was qualified to perform, Re-
spondent shall offer Campoy the opportunity to replace such new
employee and to be employed in her stead. Respondent shall also make
Campoy whole for any loss of pay she may have suffered by reason of
the discrimination against her, in the manner set forth in the section
of this Decision and Order entitled "The Remedy."
(c) Offer to Jesus Angel Velasco, Fernando Ornellas, and Frank
Zamora immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority and
other rights and privileges, and make them whole for any loss of pay
they may have suffered by reason of the discrimination against them,
in the manner set forth in the section of this Decision and Order
entitled "The Remedy."
(d) Preserve and, upon request, make available to the Board and
its agents, for examination and copying, all payroll records, social
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
security payment records, timecards, personnel records and reports,
and all other records relevant to the amount of backpay due and to the
reinstatement and related rights provided under the terms of this
Order.
(e) Post at its place of business in Los Angeles, California, copies
of the notice attached hereto marked "Appendix." I Copies of said
notice, to be furnished by the Regional Director of the Twenty-first
Region, in the English and Spanish languages, shall, after being
signed by a duly authorized representative of the employer, be posted
by Respondent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Employer to insure that said
notices are not altered, defaced, or covered by any other material.
(f) Notify the said Regional Director in writing, within 10 days
from the date of this Order, what steps it has taken to comply herewith.
IT IS FURTHER ORDERED that, except as otherwise found herein, the
remaining allegations of the complaint be, and they hereby are,
dismissed.
6In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcnig an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT discourage membership of any of our employees
in L.A. Leather, Luggage & Handbag Workers Union, Local 213
L, AFL-CIO, or in any other labor organization, by discharging
or laying off any employee, or in any other manner discriminate
against any employee in regard to hiring for a job, seniority, or
tenure of his or her employment or any term or condition of
employment.
WE WILL NOT interrogate any of our employees regarding their
membership, activity, or interest in the above Union or in any
other labor organization in a manner constituting interference,
restraint, or coercion in violation of Section 8(a) (1) of the Act.
WE WILL NOT threaten any of our employees with economic loss
if they join the Union or engage in union activity.
WE WILL offer Jesus Angel Velasco, Fernando Ornellas, and
Frank Zamora immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their
CROWN HANDBAG OF CALIFORNIA, ETC. 1167
seniority or other rights and privileges previously enjoyed, and
make them whole for any loss of pay suffered by them as the
result of the discrimination against them, in the manner set forth'
in the section of the Decision and Order entitled "The Remedy."
WE WILL offer to Consuelo Campoy reinstatement to her former
or substantially equivalent job, when such is available, without
prejudice to her seniority and other rights and privileges. With
respect to any new employee hired since September 21, 1961, who
is performing work that Consuelo Campoy is qualified to per-
form we will offer to Consuelo Campoy the opportunity to replace
such new employee and to be employed in her place. We will also
make Campoy whole for any loss of pay she may have suffered by
reason of the discrimination against her, in the manner set forth
in,the section of the Decision and Order entitled "The Remedy."
WE WILL offer to Jose Isabel Flores immediate and full rein-
statement to his former or substantially equivalent position with-
out prejudice to his seniority and other rights and privileges, and
we will make him whole and compensate him for any loss of pay
he may have suffered by reason of the fact that we discriminated
against him and discharged him, in the manner set forth in the
section of the Intermediate Report entitled "The Remedy."
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees if they exercise their rights to engage in
self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all such activities, except as such right may be affected by
a valid agreement requiring membership in a labor organization
as a condition of employment.
LEO ROSENBLUM, D/B/A CROWN HAND-
BAG OF CALIFORNIA, AND D/B/A SOFT
ToucH SHOE Co.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, Eastern Columbia Building, 849 South Broadway, Los Angeles,
California, Telephone Number Richmond 9-4711, Extension 1031, if
they have any questions concerning this notice or compliance with its
provisions.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The General Counsel issued the complaint and notice of hearing in this case on
November 8, 1961.1 The complaint alleged illegal interrogation of and threats to
employees by Respondent and further alleged that seven named employees were
discriminatorily discharged by Respondent, all in violation of Section 8(a)(1) and
(3) of the Act. In its answer, Respondent denied the commission of the alleged
unfair labor practices.
With all parties represented, the hearing was held before Trial Examiner Ramey
Donovan on December 18 and 19, 1961, at Los Angeles, California. Briefs, which I
have carefully considered, have been filed by the General Counsel, 'the Respondent,
and the Charging Union.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE EMPLOYER'S BUSINESS
Leo Rosenblum, Respondent, is an individual proprietor doing business under the
trade names of "Crown Handbag of California" and "Soft Touch Shoe Co.," with
his principal office and place of business in Los Angeles, California. The above op-
erations are referred to herein as the handbag operation and the shoe operation,
respectively. Respondent manufactures and sells at wholesale ladies' handbags and
ladies' slippers.
In the conduct of his business, Respondent, in the past year, purchased for and
received at his Los Angeles plant goods and materials valued in excess of $50,000
directly from places outside the State of California.
It is found that Respondent is an employer within the meaning of the Act and
that his operations are within the jurisdictional standards of the Act and of the
Board.
II. THE LABOR ORGANIZATION INVOLVED
L.A. Leather, Luggage & Handbag Workers Union, Local 213 L, AFL-CIO, herein
called the Union, is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent conducts his operations on premises that in the ordinary sense of the
term are three adjacent and combined retail-type stores. On these premises Re-
spondent has an office area and two areas where it manufactures handbags and
slippers, respectively .2
By common industrial standards, Respondent's operations are relatively simple.
The slippers, for instance, are made of a soft plastic; their manufacture is rudimentary
and they retail for $1 a pair. The employees, for the most part, are either of
Mexican nationality or of Spanish-speaking descent. The skills involved in both the
handbag and shoe operations range from those of high skill to moderate skill, to
semiskill, to almost elementary manual application.
With respect to management, Rosenblum, as the owner, is the principal figure.
There are two supervisors in addition to Rosenblum. Feld is foreman of the handbag
operation and Hernandez is foreman of the shoe operation. Hernandez, in addition
,to designing the shoe products and instructing and supervising the shoe employees,
has an investment interest in the shoe operation, in addition to his salary.
On the morning of Tuesday, September 19, 1961, Grossberg, a union organizer,
appeared on the sidewalk in ;front of Respondent's plant. She was accompanied
by a person whom she identified in the record as a Spanish-speaking friend. Gross-
berg and friend stood at the door of the premises and passed out union' application
cards to the employees as the latter were going to work. According to Grossberg,
whom I credit on this point, the employees were told by her that a union was being
organized. Employees Frank Zamora, Santiago Zamora, Fernando Ornellas, and
Jesus Angel Velasco were early arrivals at the plant and after signing cards they
stood at the entrance with Grossberg and encouraged the employees to sign. A
substantial majority of the employees signed cards on the aforedescribed occasion.
The evidence is clear that both Rosenblum, Feld, and Hernandez observed the
activities, aforedescribed, outside ,the plant and entered the plant during the activities.
1 Charges and amended charges had been filed on September 25 and 27 and October 24,
1961.
2 Aside from testimony in the record, the Trial Examiner, with respect to the physical
setup of Respondent's business, visited and saw the premises in the company of the parties.
CROWN HANDBAG OF CALIFORNIA, ETC. 1169
Rosenblum did not speak to Grossberg as he went into the plant but he testified that
after he had entered the plant some employees told him that the "lady" was trying
"to organize a union." Rosenblum then came out of the plant and told Grossberg,
with some emotion, that he would call the police if she did not go away.
Hernandez testified that on the occasion when Grossberg was handing out the
cards to the employees as they came to work, she spoke to him at the doorway to the
plant. Grossberg informed Hernandez that the employees had told her of their
liking for Hernandez and she suggested that he help the employees by joining the
Union. Hernandez replied that he was not interested and did not care for a union
and that, contrary to Grossberg's view, her suggestion that he join the Union would be
harmful rather than helpful to the employees. After entering the plant, Hernandez
went outside once more and again spoke to Grossberg, "I gave her my views of the
Union and she gave me hers, which were completely opposite " More specifically,
Hernandez told Grossberg that he had never found a union to be helpful and, in fact,
it was his experience that unions had been detrimental to his advancement in shops
where he had worked; he also referred to corruption and Communist influence in
unions.
During the balance of the day Hernandez had a series of conversations with
employees both individually and in groups.3 He testified that he "told them to
come in the open if they wanted a union . if you love the union so much, some
of you, there is a lot of union places. Why don't you get a job there if you are not
happy here?" According to Hernandez, he asked some of the employees whether
they had signed the union card and in other instances employees came to him and
told him whether they had signed. Hernandez' testimony indicated that he had,
and displayed to the employees, great interest and concern about where each individual
stood with respect to the Union, with his own opposition to the Union being apparent.
He testified that some employees informed him that they did not want a union and
he believed them to be sincere "But I could notice that some of them were lying
I went inside again in the shop and told them that they couldn't deceive me.
I said, `If you are for the union, you can go ahead and join. Just say it openly."'
The witness stated that he told the employees "that it wouldn't be to our advantage
to have the union; it would destroy us . ," explaining that the product was a cheap
product and that on simple operations employees "have to work on ['at] a minimum."
Bonita Pena, an employee in the shoe operation who was still employed at the
time of the hearing, testified that on September 19, Rosenblum came into the shoe sec-
tion and spoke to Hernandez. Rosenblum instructed the latter to tell the employees
that he did not want to see any groups there on the outside with the union people.
Rosenblum then left and Hernandez spoke to the employees in Spanish, saying that
",the boss said he didn't want to see us with the lady from the Union because if we
went to a union [meeting?] with union people he would lay us off." Flores, another
employee in the shoe section, testified that Hernandez, in Spanish, said that those
who wanted to go to the Union could go and those who did not, not to go, but
.,if we went to the Union meeting" thereafter "the doors would be closed on us,
there would be no more work for us." I credit the foregoing testimony of Pena
and Flores as substantially accurate as to what was said at one point on September 19.
Based on the testimony of Hernandez, Pena, and Flores and the other evidence
in the record, I find that on September 19, 1961, Respondent violated Section 8(a) (1)
of the Act by engaging in illegal interrogation of its employees regarding their
union activities and made it clear that Respondent was opposed to having a union
in its shop and that ,the employees would incur economic detriment if they adhered
to the Union .4
8 Hernandez, as contrasted with Rosenblum and Feld, spoke Spanish Previously noted
is the fact that most of the employees spoke this language and in many instances spoke
little or no English Respondent, in his brief, has given the following description: "The
history of the situation indicates that these workers are uneducated, unlettered, young
men and young women of Spanish or Mexican extraction, speak very little English and
who have very little understanding of what goes on The testimony indicates that this
was a closely knit factory in which the workers themselves brought subsequent replace-
ments, it had a fair labor turnover, and the workers were held together by one Robert
Hernandez, who was the moving and guiding spirit and to whom everyone looked upon
and trusted "
4 Later, on the same day, Roth, executive secretary of the Union, and Grossberg came
to the plant and spoke to Rosenblum He ordered them straightway to leave the premises,
which they did A union meeting scheduled that same evening after work was attended
by only one employee, Campoy, who had been a union member in other shops before com-
ing to work for Respondent
649856-63-vol. 137-75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Terminations
The evidence indicates that Respondent 's handbag business had been good in 1960
but poor in 1961 . Contrary to the general nature of the business in past years,
The first part of 1961 had been relatively good but business had decreased in the
ensuing months.5
a. Velasco, Ornellas, and Frank Zamora
Velasco, one of the employees laid off on September 19, testified that in the
preceding week one of the cutters had said to him, "Business is too slow and, I
don't know , I think Leo [Rosenblum ] is going to lay off some of you guys." About
2 p.m. on September 19, Foreman Feld said to Velasco, in the presence of Frank
and Santiago Zamora, and Ornellas, that "I think the boss is going to lay off some of
you fellows today; I hope you are not the one on the list because I like to keep you
working here." Later, at 4 p.m., Feld said to Velasco, "I'm sorry, but you are the
one on the list too ." Feld said that in a week or two he would call him back if work
picked up. Velasco had worked for the Respondent in the handbag operation doing
general work of various kinds since March 1961 . He has not been recalled.
Frank Zamora commenced work in the handbag operation in September 1960. He
performed general manual work like making handles, putting eyelets in the bags, and
turning the bags inside out. He also had worked in the shoe operation for a month,
around November or December 1960, performing a simple operation of turning the
slippers. He testified that on September 19 Feld told him in the afternoon that
he was going to be laid off and said that if he , Feld, did not call him back this week
that he should come in for his check during the following week . Frank Zamora
has not been recalled.6
Ornellas had worked in the handbag operation since January 1961 . He testified
that he had worked on putting the bags in the frames, turned bags, worked on a sta-
pling machine, put rivets in the bags , made handles, cleaned the shop , "and all
sorts of jobs." On the afternoon of September 19 Feld told him that he was being
laid off because work was slow but that "he will tell me when to come back in two
weeks." At the time, Ornellas testified that he had plenty of work to do and had
not run out of work. Ornellas has not been recalled.
Feld testified that the layoffs of Frank Zamora, Ornellas, and Velasco on Sep-
tember 19 were due to business conditions . He was asked how it happened that that
particular day was chosen . In reply, the witness stated , "Well, we were planning
on laying off much before , much before that . I was talking over with Mr. Rosen-
blum two weeks even before, before this happened, and we figured to lay off these
people " The witness stated, however, that the employees had been kept on in
the hope that conditions would improve . Once more the question was asked,
"Why did you decide to lay them off on September 199" Feld replied, "Well, that
was the day before our holiday [the Jewish holy day of Yom Kippur] and we didn't
have nothing to do any more." At another point, Feld admitted that on the preceding
Friday, September 15, he knew that work was slow. He was asked why he had
not laid off the men on Friday, the end of the week His reply was that "We figure
something will come in on the weekend " Feld made it clear that by the "weekend"
he was referring to Saturday and not Monday as the expected time for an incoming
order.?
Rosenblum also testified that the layoffs of Frank Zamora, Ornellas, and Velasco
were due to lack of work. He stated that be began to lay off people at the beginning
of September and he named four framers in the handbag operation who had been
laid off in September "much before" September 19.
The evidence satisfies me that Respondent's business in September had substan-
tially decreased and that a layoff under such circumstances was customary. Al-
though Respondent had no fixed policy of following seniority in layoffs, there is, in
any event, no evidence that employees performing the same work as Frank Zamora,
Ornellas, and Velasco, who were iunior in service, had been retained. I am there-
fore accepting the proposition that the three employees 'aforementioned, none
e January 1961 , gross sales shipped , $ 14,590 ; February , $ 18,391 ; March, $25,829;
April, $ 18.361 ; May, $20 , 000: June , $8,200 • July , $ 17,700; August , $9,800; September,
$5,800; October, $6,900; and November, $4,800.
e On cross -examination Respondent 's counsel asked the witness:
Q You were told specifically weren't you , that you weren 't fired but that you were
laid off and as soon as there would be work, you would be called back , is that right?
A. Yes, sir.
1 Taken in context • "In the weekend, not Monday Saturday...."
CROWN HANDBAG OF CALIFORNIA, ETC. 1171
of whom had long service or any particular skill, were logical choices for layoff
when business was poor, as it was in September, and that they would have been
laid off sometime in that month.
The General Counsel has introduced, as we have seen, substantial evidence that
Respondent was opposed to having a union in his shop. The opposition was not
confined to an inner conviction or point of view. It manifested itself in illegal
interrogation and threats, principally through Hernandez. Hernandez was more
than a foreman in the shoe operation. He not only had an investment interest in the
shoe operation but because of his own national background and lingual ability he
was very close to all the employees who, as we have seen, were predominantly of
Spanish or Mexican ancestry and were Spanish speaking. It is to be borne in mind
that Rosenblum was manufacturing handbags and shoes in the one location. From
the technical standpoint the two operations were separate although, as need arose,
employees were from time to time assigned from one operation to the other. The
entire Rosenblum operations were in close proximity. They were in fact practically
on top of each other and were, of course, under the coordinated proprietorship and
overall management of the owner. It is therefore quite apparent that management
was an mtermeshed composition of Rosenblum, Feld, and Hernandez with the right
hand knowing what the left hand was doing and with the knowledge of one being
the knowledge of Respondent.
As we have seen, Rosenblum, Feld, and Hernandez, each, on the morning of
September 19, were in a position to and could not have helped seeing Grossberg
handing out cards at the entrance to the shop on the morning of September 19.
Frank Zamora, Velasco, and Ornellas, as well as Santiago Zamora, were the first em-
ployees to arrive. In addition to signing cards they stood there with Grossberg and
spoke to other employees as they arrived and urged them to sign. It is a fair in-
ference that management observed this activity and I draw the inference. Further,
Hernandez testified that during the day, on September 19, some of the girls told
him that Frank Zamora had asked them to sign union cards. Also, Hernandez ad-
mittedly had made it his business on September 19 to know where each employee
stood with respect to the Union. Although Zamora, Velasco, and Ornelias worked
on bags, they were in the same premises and they were Mexican young men about
whom Hernandez was no doubt reasonably informed. Such knowledge would be
in addition to the personal observation of Rosenblum, Feld, and Hernandez earlier
in the day.
Respondent has undertaken, as an affirmative defense to the allegation of discrimi-
nation, to show that on September 19 the layoffs were attributable solely to lack of
work. While I believe that Respondent has borne the burden of showing that
economic conditions were dictating layoffs in September, I am unconvinced by any
evidence in the record that solely economic and nondiscriminatory considerations
dictated September 19 as the day for the layoff of three employees who had mani-
fested strong and more than routine interest in the Union on that very day. Motive
is a persuasive interpreter of equivocal conduct and when Respondent has manifested
strong opposition to having a union in its shop and lays off marked union adherents
on the initial day of the union appearance, its explanation should be reasonably
convincing.
For approximately 2 weeks business had been such that Respondent had seriously
contemplated layoffs in its bag operations. There pis no evidence that conditions on
September 19 were worse than they had been for several weeks. Respondent's only
explanation for the choice of September 19, a Tuesday, is that it was the day before a
Jewish holiday. The logic of this explanation is not apparent. Perhaps the concept
sought to be conveyed was that since the shop would be closed on the holiday, it was
decided to make the layoffs the day before just as a layoff might be made on a Friday
at the end of the week rather than on the following Monday. Rosenblum, in fact,
testified quite affirmatively that he personally did not work on September 20 and that
his entire shop was closed on that day with the exception of the shoe operation. The
employees' timecards, however, show that all the employees in the handbag opera-
tion (as well as in shoes), with the exception of Frank Zamora, Ornellas, and Velasco,
worked on September 20.8 Rosenblum and Feld did not work.
In the same connection there is uncontroverted testimony, that I credit, that in
the preceding week there had been two Jewish holidays and the handbag operation
had been closed. However, Respondent had not laid off Frank Zamora, Velasco, and
Ornellas at that time although conditions, including two holidays, were indistinguish-
able from the situation of the following week.
8 Geleano, a handbag operation employee, did not work on September 20. However, she
was not a laid-off employee and her absence was presumably due to such a factor as ill-
ness or other temporary cause.
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Another explanation proferred by Feld for the selection of September 19 as the
layoff date, rather than, for instance, the end of the preceding week, Friday, Septem-
ber 15, was that on Friday Respondent decided to wait to see if some new orders
would come in over the weekend. Feld was emphatic that the expression, "over the
weekend" as he used it, meant that the hoped for orders would come in by Satur-
day. Since the new orders had not materialized by Saturday (or Monday) it is not
clear why the layoffs were not made on Monday, at least by the end of the day.
In the absence of convincing evidence either by way of explanation or by records
of orders on hand, shipping records, invoices, or other tangible evidence, as to why
The layoffs occurred on September 19, 1 can only conclude that the distinguishing
feature of that date was that it was the inception of the union effort to organize Re-
spondent's shop. Respondent's hostility toward the Union can reasonably be in-
ferred to have been a factor in the selection of September 19 as ,the date for the
layoff of the three union adherents whose activity had come to Respondent 's atten-
tion on that very day. In short, Respondent in its affirmative defense in answer to
the prima facie case of the General Counsel, has not, with any reasonably con-
vincing evidence shown that September 19 was selected in the normal course of
business and without regard to the union activity of the three men on that date.
Although the foregoing conclusion warrants a finding of a violation of Section
8(a)(1) and (3) of the Act, and I so find, I have previously concluded that the three
men in question would have been laid off in September for economic reasons. It is
impossible on this record to determine when the layoffs would have normally oc-
curred. In view of these circumstances, particularly since I believe that it is probable
that the layoffs would have normally occurred sometime around the same period,
though not on the particular date of September 19, I shall recommend neither im-
mediate reinstatement nor,backpay.
Rosenblum testified that a few weeks before the hearing he had hired some new
employees to do the same relatively unskilled work for the shoe operation (packing
and turning) as Frank Zamora, Ornellas, and Velasco had previously performed in
the bag operation .9 The witness testified that he did not offer the jobs to the three
laid-off employees because some of the girls in the shop had informed him that the
men were working at better-paid jobs obtained through the Union. This testimony
that the men had obtained better-paid jobs is not controverted in the record and I
credit it. As to whether this was in fact the reason why Rosenblum did not offer re-
employment to the laid-off employees the matter is not free from doubt. However,
by the time these jobs were available in Respondent's shop, the Union was in less
than a strong position among the employees. In fact, by the end of September, largely
through Hernandez' efforts, most of the employees who had signed union cards had
repudiated their interest in the Union. Respondent therefore may have been willing,
as stated, to reemploy the laid-off men but did not offer them employment because he
believed that they had secured higher-paying jobs.10 In any event, the evidence, in
my opinion, does not warrant a finding of illegal discrimination as to rehire on the
rather limited facts available on this aspect.ll
b. Consuelo Campoy
Consuelo Campoy had been a union member since 1953. She was first hired by
Respondent in June 1961 as an operator in the handbag section at $1.50 per hour.
She worked for 3 days and then voluntarily quit. She was rehired on July 15, 1961.
At the latter time she informed Rosenblum that she required a higher wage rate and
was given $1.70 per hour. She worked regularly until her layoff on September 21. I
credit her testimony that her work had never been criticized and her foreman, Feld,
testified that her layoff was due to lack of work. He expressed no criticism of her
work. In view of these factors and the fact that Rosenblum had rehired her in July
at a higher rate, I find Rosenblum's testimony, that Campoy was a poor operator,
unconvincing.
At the time Campoy was first hired Rosenblum was informed by the employee that
she was a union member. Rosenblum testified that he told her that it was not a union
shop and he was "glad" of this fact. When Grossberg appeared on September 19,
0 The shoe manufacturing -business was admittedly very good
1011. . . the Respondent explained that it did not offer to rehire her [the laid-off em-
ployee] because, unlike the others, she had obtained other work." The Board found no
discrimination in the failure to rehire under the foregoing circumstances. Magic Slacks,
Inc, 136 NLRB 607.
11 With 29 eligible voters, the Union received 2 votes in a representation election on
December 4, 1961. I am unable to determine whether the job vacancies occurred before
or after the election.
CROWN HANDBAG OF CALIFORNIA, ETC. 1173
Campoy signed another union card "in front of the door of the factory" about 7:55
a.m. She was the only employee who appeared for a union meeting scheduled on the
same day after work. When no other employees came for the meeting Campoy ac-
companied Grossberg to the homes of various employees.
In addition to the preceding weeks, Campoy worked on Monday, September 18,
as well as on September 19, 20, and 21. As previously noted, Rosenblum and Feld
did not work on September 20. Whereas Respondent testified that it had selected
September 19 for the layoff of the three men previously described because it was the
day before the holiday and because there was no work, Campoy's layoff was at the end
of the day after the holiday, following a full day's work on September 20 and 21.
The reason given to Campoy and at the hearing by Feld was lack of work. She spoke
to Rosenblum who said he would try to call her back if work picked up in a few days
or weeks. Campoy testified that at the time of her layoff she was aware of no slack
in the work. It is also pertinent to observe that after September 19 Grossberg next
appeared at the plant entrance on the morning of September 21 when she attempted
to distribute circulars. Rosenblum came out of the shop and stood next to her for 5
or 10 minutes and reentered the plant at 8 a.m., the time when the plant commenced
work.
As in the case of the three male employees the evidence persuades me that Campoy
would have been laid off sometime in this period because of the decrease in Respond-
ent's handbag business. She was the most recently hired of five operators and had
worked only since July 1961. However, in view of the evidence regarding Respond-
ent's hostility toward having a union in his plant and the fact that three union pro-
tagonists had been laid off on September 19, the first day of the Union's appearance,
the elimination of Campoy, the one longtime union member, at the end of the first
day after Rosenblum's and Field's absence from the plant, and coinciding with
Grossberg's second appearance, raises doubts regarding the bona fides of the timing.
While Rosenblum had originally hired Campoy knowing that she was a union member
he had made it clear to her that his was not a union shop and that he was pleased
that such was the fact. There is of course a distinct difference in tolerating a lone
union member at a time when there was no organizational effort being made in
Respondent's shop and preserving this same neutral attitude toward a known union
member at a time when an organizational effort was underway. This is particularly
true since we have clear evidence of active opposition to the Union on Respondent's
part at the time when Grossberg appeared at the plant.
Under the foregoing circumstances, Respondent's affirmative defense that the
timing of Campoy's layoff on September 21 was purely coincidental and was due to
a lack of work which became more acute on that particular day requires reasonably
convincing evidence in support thereof. I am unable to conclude that Respondent
presented such evidence. If the situation was as asserted by Respondent it would
appear that some record of orders or lack of orders or some convincing details re-
garding the work situation of operators on September 21 could have been presented.
As it is, the union hostility of Respondent and the timing of Campoy's layoff on the
second day of the Union's appearance and within 2 days of the first layoff presents
a picture of the virtual elimination of the staunchest union adherents by September
21 with no better evidence than the oral assertion that work became coincidentally
slack on September 21.
Accordingly, while I believe that Campoy would have been laid off sometime
during this period I am not persuaded that her layoff on September 21 was not influ-
enced by her known union affiliation.12 I accordingly find that her layoff on Septem-
ber 21 was violative of Section 8(a)(1) and (3) of the Act. But, for the reasons
stated with respect to Frank Zamora, Velasco, and Ornellas, I recommend no back-
pay or immediate reinstatement for Campoy who, I believe, would have been laid off
at some date in this period. This matter is more fully discussed below in the sec-
tion entitled "The Remedy."
c. Santiago Zamora
Santiago Zamora was terminated by Hernandez on September 25. Zamora did
not testify at the hearing but the evidence does show that he was in the group of
Frank Zamora, Velasco, and Ornellas on September 19 when they signed union
cards and stood at the plant entrance urging other employees to sign. Santiago
'a Additionally, the conclusion may be warranted that in a closely knit community of
Spanish-speaking employees who admittedly regarded Hernandez as something in the
nature of a patron whose views they were quick to respect and to whom they confided
freely, management had been made aware that on the evening of September 19 Campoy
had accompanied Grossberg in visiting various employees about the union organizing effort.
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Zamora worked in the shoe section. It is not entirely clear just what type of work
he performed.
Hernandez testified, without contradiction, that between September 19 and 25
Frank Zamora, who had been laid off, continued to come to the plant and talked
to Santiago Zamora during the latter's working time. Santiago also, according to
Hernandez, used to go outside to talk to Frank, his cousin, when he should have been
working. Hernandez warned Santiago to stop such conduct and to stop his cousin
from coming to Santiago's machine and talking to him. Santiago allegedly informed
Hernandez that since he had joined the Union the latter would no longer be able to
give him orders and generally was insubordinate to Hernandez. Hernandez warned
Santiago that he would check his production. This was done and, according to
Hernandez, Santiago's production was down about 40 percent. Hernandez warned
him he would be fired if the condition continued. Santiago, however, did not im-
prove his production and Hernandez testified that he was convinced that the low
production of Santiago was deliberate and intentional and he therefore discharged
him.
On the evidence, I credit Hernandez' uncontroverted testimony and I recommend
dismissal of the complaint allegation regarding Santiago Zamora,
d. Alicia Ochoa
Alicia Ochoa had worked as a trimmer in the shoe operation since September
1961. She signed a union card on September 19. In her testimony she referred to
a speech made by Hernandez to the shoe employees on the same day. Among other
things, Hernandez "told us that they want no union." Later in the month, Hernandez
told the employees that if they were sincere about not wanting a union they should
be willing to put their sentiments in writing. Among the employees who did so was
Ochoa. She wrote, in substance, that she was happy with her job and did not want a
union. She gave the statement to Hernandez.
'Ochoa testified that on October 3 Hernandez told her that he would have to lay
her off for a few days. The witness testified that Hernandez recalled her in 2 days
but she had gone to Mexico in the interval She later returned and was reemployed
a week after her layoff. She was working for Respondent at the time of the hearing.
Hernandez testified that he had laid off Ochoa for 2 days because of a slight short-
age of trimming and recalled her in 2 days.13
The above-credited evidence with respect to Ochoa is such that I recommend dis-
missal of the complaint allegation regarding this employee.
e. Jose Flores
Jose Flores commenced working for Respondent's shoe operation on May 15,
1961. Like the other employees, he had signed a union card on the morning of
September 19. He testified that on that day Hernandez told the shoe employees as
a group that those who wanted .to go to the union meeting could go and those that
did not want to, should not go, but that there would be no more work for those who
went to the meeting.
On October 2 [31 at 4 p in., according to Flores, Hernandez informed him in the
shop that he was not to come to work any more. Flores received his paycheck and
did not work thereafter.
I am unable to iagree with the General Counsel's statement in his brief that at
the time of his discharge Flores was told by Hernandez that "all those that signed the
[union] cards are not going to come back." Because of language difficulties Flores'
testimony is not altogether clear but as I understand his testimony as a whole, and
as I read it in the record, he testified that at the time of the discharge Hernandez
said nothing, other than that Flores was no longer to come to work. It was Flores'
opinion that he was let go on October 3 because of what Hernandez had said on
September 19, as described above.i4
13 General Counsel points out that the shoe operation was busy during that period and
therefore the layoff was inconsistent with the situation. However, while the overall
operation was operating at capacity it appears not implausible that a temporary short-
age of trimming or some other item might occur.
"Flores testified as follows.
Q. At the time you were informed of your layoff, did your foreman, Roberto
Hernandez, give you any reason for your layoff?
A. Nothing. He has told me not to come back. He said, "All those that signed
the cards are not going to come back "
s s s s • • s
(Footnote continued on following page)
CROWN HANDBAG OF CALIFORNIA, ETC. 1175
Flores testified that he had never been criticized regarding his work or his pro-
duction and he denied having used improper language to female employees.
Following the General Counsel 's case, in which Flores had testified as described,
Hernandez testified that he had discharged Flores for using "vulgar " language to
some of the female employees on October 3. At another point, Hernandez used
the term "dirty " language in the same connection . The witness also testified that on
a prior occasion , before September 19, Flores had done the same thing and "I
called it to his attention and he promised he wouldn't do it any more." Rosenblum
testified that Hernandez had wanted to lay off Flores a month before because he
"was talking dirty to the girls" but gave him another chance. Rosenblum stated
that Hernandez had told him that Flores was a poor worker, low in production.
Hernandez also testified that Flores was a slow worker . At another point Hernandez
enhanced his prior testimony that Flores had, on a prior occasion , used dirty lan-
guage by stating that he had given Flores "two or thiee chances before" regarding
Flores' use of dirty language . Both Flores and Hernandez agreed on one thing,
that at the time of the discharge Hernandez did not tell Flores why he was terminat-
ing him. Hernandez testified in this connection that Flores "knew it" was because of
vulgar language , "He had that coming for a long time "
As to the actual incidents on the day of the discharge , Hernandez testified that,
on October 3, Flores "told me that belonging to the union gave him a rise, you
know, to talk to me at the same level. " is Hernandez told Flores that he was not
interested in talking to him but simply wanted him to do his job. The witness
(Hernandez ) then went on to state , "After a little while I saw . . some of the
girls, most of them can testify if needed, come over to tell me that he was again
using dirty language." 16 On cross-examination , Hernandez was again asked about
the incident of Flores' discharge . He stated:
I went to call his attention about talking , some of the girls, Maria Ramoz and
the observer from the union went to call me and told me that he was talking,
and they couldn 't understand 'him. I went to call his attention-He answered
me dirty and I told him that I was going to fire him.
This latter testimony is not consistent with Hernandez ' other version . In the last-
quoted testimony it appears that the girls could not understand Flores It is un-
possible to know whether this lack of comprehension was in relation to conversation
pertaining to mutual work or what it was. But it is difficult to conclude that the
girls could be complaining about dirty talk when they did not understand what
Flores was saying 17 Moreover , in this latter version of Hernandez , the dirty talk
is now depicted as having been directed to him and not to the girls.
Respondent 's position , as stated by Hernandez on direct examination by Respond-
ent's counsel , was that the precipitating cause of the discharge was Flores' use of
Q Would you please tell us what Roberto said and what you said?
A Well, nothing He just gave inc the check and then I didn't say anything
Q Did he tell you why you were being let go'1
A Because of that, because we signed the card
Q Did he say that to you)
A Roberto did, because lie had told us on the day that we had signed the card
that those who wanted to go the union, not to come any more
Q And did he ever say it again between the date he said it the first time
and the day lie was laid off 9
A That was the only time
Is It is difficult to determine whether the word "rise" or "right" is the correct transcrip-
tion of the testimony. In any event, it appears as quoted above. But, whether "rise"
or "right," I interpret the statement as the somewhat inarticulate expression of a rela-
tively uneducated young man who was stating that lie believed that his union affiliation
had raised his status, given him certain rights and protection in his employment. It does
not appear in what circumstances the conversation occurred Hernandez did not claim
in his testimony on direct examination that lie had criticized Flores' work or his conduct
on the occasion so it does not appear to have been an insubordinate rejoinder, even assum-
ing, arguendo, that the limited statement in any context could be so construed.
16 The witness explained "again" as a reference to prior occasions, before October 3.
17I am not prepared to conclude that the girls were complaining that they could not
understand Flores because his vulgar language was not explicit enough. This would take
us into the realms of the lady guest at a summer hotel in the Catskill Mountains who
complained to the hotel manager that the food was horrible and poisonous and "in such
small portions."
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dirty language to female employees on October 3.18 I am satisfied that Flores' al-
leged slow production is not the issue. If there was slow production by this em-
ployee ( and no production records were produced to substantiate this nor was there
testimony of other employees in the section or other direct evidence to corroborate
Hernandez ), it admittedly had existed well before October 3 . I am not persuaded
that Flores would have been discharged for slow production even if such existed
and I do not regard Respondent's evidence as establishing or indeed claiming that such
was the cause of discharge . The alleged slow production was at best a makeweight
and the central issue is the credibility of the opposing witnesses regarding alleged
dirty talk to the female employees on October 3, in an asserted background of prior
similar offenses . It is quite apparent that none of the witnesses involved, Flores,
Rosenblum , and Hernandez , is a disinterested witness.
In view of Flores' denial of having engaged in vulgar talk, it is my opinion that
Respondent 's position , that such talk had occurred on October 3 and on several prior
occasions with female employees in the shop and that these employees had com-
plained about such talk , was readily subject to corroboration if the facts were as
asserted . It is difficult to imagine that the testimony of one or two female employees
would not have been a substantial if not a decisive factor in resolving the issue. No
such witness was called by Respondent . Nor do I believe that under the particular
posture of the issue it was equally reasonable to expect the General Counsel to call
all the female employees in the shoe section, or in the shop , and to elicit testimony
from each that they had not or had heard vulgar talk from Flores and had or had
not complained about it.39
After careful consideration I conclude that Flores did not engage in the conduct
alleged on October 3 and that this was not the cause of his discharge . In view of
Hernandez' manifest opposition to the Union and his admitted and sincere belief,
as expressed to the employees on September 19, that "If we joined the union, we
would all be out of work," I am persuaded that he discharged Flores because of his
adherence to the Union . By interrogation , as we have seen , Hernandez had ascer-
tained where his employees stood with respect to the Union. As early as Septem-
,ber 19, his efforts had been so effective that no employee except Campoy had at-
tended a union meeting on that evening. On September 29, Friday, Hernandez had
told the shoe employees that, as a test of their sincerity , they should put in writing
their sentiments about not wanting the Union. A substantial portion did so and
gave their written statements to Hernandez . Respondent introduced two of such
statements as exhibits . There is no evidence that Flores , one of the shoe employees,
made such a statement . If he had thus repudiated the Union on September 29, the
production of such statement at the hearing by Respondent , to whom all the state-
ments had been given , would have been a basis for argument that such an employee,
opposed to the Union , would be an unlikely choice for a discriminatory discharge.
The inference is a fair one that Flores did not, like most of the others , repudiate
the Union and that such fact was obviously known to Hernandez 20 This conclusion
finds confirmation in the conversation of Flores with Hernandez , as described by the
latter , on October 3. Flores' statement to Hernandez on the latter date made it un-
mistakably clear that Flores remained an adherent of the Union despite the prior
efforts of Hernandez to completely frustrate the union effort . I find that Flores was
discharged pursuant to the policy of opposition to the Union that Hernandez as an
agent of Respondent had espoused and which he believed to be essential to Re-
is The record contains no elaboration of what the dirty or vulgar language was.
19 No female employees had been named by Respondent 's witnesses as the ones who had
either heard or complained about the alleged dirty talk although there was a reference,
as set forth above, to two girls who had asserted that they did not understand what Flores
was saying.
20 In view of the complete nonattendance at the union meeting and the fact that the
Union secured only two votes in the December election ( whether these votes were from
handbag or shoe employees is, of course , not known ), it appears unlikely that few, if any,
shoe employees did not sign nonunion statements on September 29 Flores may well
have been the only shoe employee in such a nonconforming position since even Pena,
who was the union observer at the subsequent election, testified , without contradiction,
that on September 29, at Hernandez ' request, she had individually given him a written
statement to the effect that she did not want the Union.
CROWN HANDBAG OF CALIFORNIA, ETC. 1177
spondent's economic survival. The motive of the discharge is thus consistent with
Respondent 's manifest interest and purpose .21 The discharge is found to be illegal
and in violation of Section 8(a) (1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connec-
tion with the operations of Respondent described 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 thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, it
will be recommended that Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
As stated with respect to Frank Zamora , Ornellas, Velasco , and Campoy, I have
found that the selection of the particular dates for their layoffs , on September 19
and 21 , 1961, was discriminatory and was pursuant to Respondent's opposition to the
Union and was timed as a countermove to the union organizational effort on Sep-
tember 19 and 21, when the union adherence of these four employees was such that
it manifestly distinguished them from other employees . But since it was my conclu-
sion that the aforesaid employees would have been laid off at some undeterminable
date in September , I have recommended neither reinstatement nor backpay.
However, with respect to Campoy, I recommend that Respondent offer her re-
employment to her former or substantially equivalent job as soon as such job op-
portunity may arise , there being no evidence that such job opportunity occurred
between September 21, 1961, and the date of the hearing . In the event that Re-
spondent has hired one or more new employees since September 21, 1961 , for work
that Campoy was qualified to perform , I recommend that Respondent offer Campoy
the opportunity to displace such new employee and be employed in her stead 22
I have recommended dismissal of the complaint allegations as to Santiago Zamora
and Ochoa since the evidence , in my opinion , does not support the allegations.
With respect to Flores, whose discharge 1 have found to have been illegal, I
recommend the conventional remedy of an offer of reinstatement to his former or
substantially equivalent job, with all rights and privileges previously enjoyed, and
that he be made whole for any loss of pay from the date of his discharge to the date
of the offer of reinstatement , less any intermediate earnings . Backpay, if any, to
be computed in accordance with the Woolworth formula 23
[Recommendations omitted from publication.]
n By October 3, by reason of a combination of circumstances previously set forth herein,
all employees who had in any way marked themselves as relatively outstanding union
adherents ( as contrasted with the great mass of the employees who had quickly repudiated
the Union In the circumstances described ) were no longer in Respondent ' s employ By
the end of the day, on October 3 , Flores, whose stubborn adherence to the Union at that
late date was once more affirmed in his conversation with Hernandez , had been eliminated
22 The difference between the situation of Campoy , on the one hand, and Velasco,
Ornellas, and Zamora , on the other , is that the record shows that since September 19
Respondent did hire new employees to perform packing and other work for which the
three men were qualified . However, Respondent did not recall the three men because
he had learned that they had secured higher paying jobs and he concluded , not unreason-
ably, that they therefore were not available. Thereafter , in my opinion , Respondent owed
no particular obligation to these former employees other than the obligation , owed to
all applicants for employment , not to discriminate against them if they applied for work.
Campoy Is In a different situation since she was a laid-off employee whom, as far as the
evidence shows, Respondent had no occasion to consider for reemployment. She there-
fore at all tunes remained a laid-off employee of Respondent In view of the disciimma-
tion against her on September 21, I consider the recommended remedy appropriate since
It is merely consistent with her laid -off status
'2 F. W. Woolworth Company, 90 NLRB 289.