T & W Fashions, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1988

291 N.L.R.B. 137 (N.L.R.B. 1988)

T & W FASHIONS
T & W Fashions, Inc and Pacific Northwest Dis
trict Council , International Ladies' Garment
Workers' Union, AFL-CIO Case 20-CA-
19884
September 30 1988
DECISION AND ORDER
By MEMBERS STEPHENS JOHANSEN AND
CRACRAFT
On February 17 1987 Administrative Law
Judge Gerald A Wacknov issued the attached de
cision The Respondent filed exceptions and a sup
porting brief and the General Counsel filed an an
swenng brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings i findings 2
and conclusions and to adopt the recommended
Order3 as modified 4
i In affirming the judge s denial of the Respondents motion to dismiss
under principles of res judicata we find that the issues litigated in the
proceeding instituted against the Respondent by the U S Department of
Labor in Federal district court involved only violations of minimum
wage overtime and recordkeeping provisions of the Fair Labor Stand
ards Act These allegations involve different facts and thus different
causes of action from allegations before the Board of constructive dis
charges of employees who concertedly pursued redress of Federal wage
and hour violations and allegations of surveillance of employees engaged
in those protected concerted activities Because the district court adjudi
cation did not constitute a prior valid final judgment on the merits in
volvmg the same cause of action it is not res judicata
z The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility findings unless a clear preponderance of all the
relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings Member Johansen does not accept the Respondents excep
tions to credibility as they do not meet the requirements of NLRB Rules
and Regulations Sec 102 46(b) and (c)
In adopting the judge s finding that employees Toy Fun Ng and Chau
Fung Louie engaged in protected concerted activity for which they
were constructively discharged we note in addition to the evidence
relied on by the judge (i e the evidence that both employees participated
actively in the investigative meetings with the U S Department of
Labor) that both Ng and Louie testified that they had traveled to the
meeting as part of a group of other employees of which fact the Re
spondent s owner Tammy Ho and her attorney were aware as they stood
in the hallway outside the U S Department of Labor meeting room as
employees entered Consequently Ng and Louie engaged in activities
protected under Sec 7 with other employees were thus engaged in con
certed activity within the meaning of the Act and the Respondent had
knowledge that their activity was concerted
s In accordance with our decision in New Horizons for the Retarded
283 NLRB 1173 (1987) interest on and after January 1 1987 shall be
computed at the short term Federal rate for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to January 1 1987 (the effective date of the 1986
amendment to 26 U S C § 6621 ) shall be computed in accordance with
Florida Steel Corp 231 NLRB 651 (1977)
4 The judge included a broad cease and desist provision in his recom
mended Order We believe a narrow provision is appropriate under the
standards of H,ckmott Foods 242 NLRB 1357 ( 1979) and we have modi
ORDER
137
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent T & W Fashions Inc San Francisco
California its officers agents successors and as
signs, shall take the action set forth in the Order as
modified
1 Substitute the following for paragraph 1(f)
(f) In any like or related manner interfering
with restraining or coercing its employees in the
exercise of ther rights guaranteed them be Section
7 of the Act
2 Delete paragraph 2(a) and insert the following
as paragraphs 2(a) (b) and (c) and reletter the sub
Sequent paragraphs
(a) Offer Toy Fun Ng and Chau Fung Louie
immediate and full reinstatement to their former
jobs or if those jobs no longer exist to substantial
ly equivalent positions without prejudice to their
seniority or any other rights or privileges previous
ly enjoyed and make them whole for any loss of
earnings and other benefits suffered as a result of
the discrimination against them in the manner set
forth in the remedy section of the judge s decision
(b) Remove from its files any reference to un
lawful retaliation against Toy Fun Ng and Chau
Fung Louie and notify them in writing that this has
been done and that evidence of this unlawful action
will not be used as a basis for any future action
against them
(c) Preserve and on request make available to
the Board or its agents for examination and copy
ing all payroll records social security payment
records timecards personnel records and reports
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
3 Substitute the attached notice for that of the
administrative law judge
feed the recommended Order accordingly In addition we have added
the customary requirement that the Respondent preserve records neces
sary to analyze backpay We have also modified the recommended Order
and notice to include the customary requirements that the Respondent
remove from its records any reference to retaliatory action against Toy
Fun Ng and Chau Fung Louie and that evidence of that action not be
used against them in any way Finally we have modified the judge s rein
statement language to conform to that traditionally used by the Board
291 NLRB No 18
138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form join or assist any union
To bargain collectively through representa
tives of their own choice
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT Spy on you or attempt to spy on
you or take photographs of you when you are
meeting with representatives of the U S Depart
ment of Labor for the purpose of claiming back
wages due to you
WE WILL NOT tell you that we are aware of ev
erything that is said at meetings of the U S De
partment of Labor that you attend
WE WILL NOT threaten you with layoff because
you provided information to the U S Department
of Labor
WE WILL NOT discharge you or cause you to
quit because you cooperated with and provided in
formation to the U S Department of Labor
WE WILL NOT in any like or related manner
interfere with restrain or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer Toy Fun Ng and Chau Fung
Louie immediate and full reinstatement to their
former positions or if those positions no longer
exist to substantially equivalent positions, without
prejudice to their seniority or any other rights or
privileges previously enjoyed, and WE WILL make
them whole for any loss of earnings and other ben
efits resulting from discrimination against them, less
any net interim earnings plus interest
WE WILL remove from our files any reference to
the retaliatory action against Toy Fun Ng and
Chau Fung Louie and notify them in writing that
this has been done and that evidence of this unlaw
ful action will not be used as a basis for any future
action against them
T & W FASHIONS INC
Eugene Thom and Sally Spencer Esqs for the General
Counsel
Joseph L Strabala Esq of San Francisco California for
the Respondent
Victoria Chin Esq (Neyhart Anderson Nussbaum Reilly
& Freitas) of San Francisco California for the Union
DECISION
STATEMENT OF THE CASE
GERALD A WACKNOV Administrative Law Judge
Pursuant to notice a hearing regarding this matter was
held before me in San Francisco California on 8 Octo
ber 1986 The initial charge was filed on 16 September
1985 by Pacific Northwest District Council Internation
al Ladies Garment Workers Union AFL-CIO (the
Union)
Thereafter on 31 October 1985 the Regional Director
for Region 20 of the National Labor Relations Board
(the Board) issued a complaint and notice of hearing al
leging a violation by T & W Fashions Inc (Respondent)
of Section 8(a)(1) of the National Labor Relations Act
(the Act)
The parties were afforded a full opportunity to be
heard to call examine and cross examine witnesses and
to introduce relevant evidence Since the close of the
hearing briefs have been received from the General
Counsel counsel for Respondent and counsel for the
Charging Party
On the entire record and based on my observation of
the witnesses and consideration of the briefs submitted I
make the following
FINDINGS OF FACT
I JURISDICTION
Respondent is a California corporation with an office
and place of business in San Francisco California and is
engaged in the manufacture assembly and nonretail sale
of garments
The Respondent annually sells goods and materials
valued in excess of $50 000 directly to Levi Strauss &
Co an enterprise located within the State of California
which annually sells and ships from its California facili
ties goods and materials valued in excess of $50 000 di
rectly to points outside the State of California
It is admitted and I find that Respondent is now and
has been at all times material an employer engaged in
commerce within the meaning of Section 2(2) (6) and
(7) of the Act
II THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union is and has been at all
times material a labor organization within the meaning
of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Issues
The principal issues raised by the pleadings are wheth
er the Respondent violated Section 8(a)(1) of the Act by
T & W FASHIONS 139
engaging in surveillance of employees protected con
certed activity and by constructively discharging two
employees who were engaged in cooperating with and
furnishing evidence to the Department of Labor in fur
therance of a wage and hour claim under the Fair Labor
Standards Act 1
B The Facts
On 30 October 1984 the United States Department of
Labor filed a civil action against Respondent in the
United States District Court for the Northern District of
California under the Fair Labor Standards Act for inter
alia allegedly failing to properly pay its employees the
prevailing minimu-n and overtime wages The total
amount sought by the complaint was $405 000
In March 1985 the Department of Labor held group
meetings with the Respondents employees to obtain fur
ther information regarding the aforementioned lawsuit
The employees were notified by letter and requested to
attend meetings at the Federal Building in San Francisco
on 20 and 21 March as part of the continuing litiga
tion against Respondent
Carol Fickenscher deputy regional solicitor for the
Department of Labor testified that she participated in
the aforementioned meeting on 20 March She observed
Tammy Ho owner of the Respondent and her attorney
Joseph Strabala in the hallway near the door to the
meeting room as employees were arriving for the meet
ing To Fickensher s knowledge neither Ho nor Strabala
had been invited to the meeting Fickenscher asked Ho
and Strabala to leave the area and spoke with an officer
1 The Respondent maintains that the Board is precluded from proceed
mg on the complaint allegations concerning the constructive discharge of
Ng and Louie and premises its argument on the identical circumstances
presented in affidavit form to the district court as part of the Depart
ment of Labor s request for a protective order infra Moreover the Re
spondent argues because the Department of Labor has jurisdiction over
matters of employer discrimination against employees for attempting to
seek relief under wage and hour laws the Board should be precluded
from attempting to harass the Respondent by asserting the same conten
tions in a different forum Although it is true that the Department of
Labor could have proceeded against the Respondent to seek remedial
relief for Ng and Louie premised on the very same facts set forth in the
instant matter the record contains no explanation for the Department of
Labor s failure to do so It appears that the facts regarding Ng and Louie
were merely utilized as evidence in support of the Department of Labor s
motion for a protective order and were never incorporated in the under
lying lawsuit for wage and hour violations Subsequently on the court s
dismissal of the underlying lawsuit the matters alleged in the motion for
a protective order including the alleged discrimination against Ng and
Louie simply became moot It is clear however that the claims of Ng
and Louie for whatever reason possibly mere inadvertence are not now
the subject of any matter before that Agency
Under the circumstances it appears that the language of Sec 10(a) of
the Act is controlling
The Board is empowered as hereinafter provided to prevent any
person from engaging in any unfair labor practice (listed in section 8)
affecting commerce This power shall not be affected by any
other means of adjustment or prevention that has been or may be
established by agreement law or otherwise
As under the circumstances outlined above Ng and Louie have never
been provided a full and fair opportunity to present their specific claims
to any appropriate forum I find that the Board should not be precluded
by the doctrine of collateral estoppel from asserting subject matter juris
diction over their claims of discrimination under the Act See Kremer v
Chemical Construction Co 456 U S 461 (1982)
of the Federal Protective Service who in turn accompa
need Ho and Strabala from the area
Fickenscher testified that Ho returned about 10 min
utes after the meeting had begun and stood in the hall
way outside the closed door Each time the door would
be opened by someone entering or exiting Ho would
look into the room and make notes on a pad of paper
Fickenscher then called an officer of the Federal Protec
tive Service who again escorted Ho away from the area
Fickenscher and two other individuals were among
the last to leave the Federal Building that evening after
the meeting Employees who attended the meeting were
also present Fickenscher observed Ho and Strabala
standing in the street by a double parked vehicle Stra
bala held a camera and was taking flash pictures
Toy Fun Ng began working for Respondent on 19
February 1982 She operated a single needle sewing ma
chine Her last day of work was 21 March 1985 She at
tended the Department of Labor meeting on 20 March
About 40 to 50 people were present She observed
Tammy Ho in the hallway observing the employees
through the meeting room door and writing something
on a sheet of paper for about 5 minutes until the door
was shut by the Department of Labor attorneys who
were conducting the meeting
During the meeting Ng gave the Department of Labor
attorneys her name and told them that she had kept a
booklet or diary in which she had recorded her hours
and the volume of her work According to Ng Chau
Fung Louie another employee spoke up and told the
workers to present the letters they had received from the
Department of Labor to the attorneys conducting the
meeting Apparently this was for the purpose of enabling
the attorneys to identify the employees who were
present as the employers did not speak English
Ng testified that at work the next day about 12 15
p in Tammy Ho announced to the employees on the
fourth floor that she heard everything that was said at
the meeting that the Department of Labor attorneys
were not sincerely trying to help them because the attor
neys were not being paid any money and that there
were two employees who attended the meeting who
worked on the fourth floor that she had been very good
to and now they were trying to get back at her and hurt
her and that day their hours would be cut
At 1 45 p in Ho Kwok Hung the fourth floor supervi
sor came over to Ng s machine and told her that The
boss told me to tell you you work six hours today then
you can leave Tomorrow also six hours Next week and
thereafter four hours As a result of her hours being
cut in half Ng did not return to work thereafter because
she could not make a living working only 4 hours per
day
Chau Fung Louie worked for Respondent from July
1981 until 21 March 1985 Louie testified that on 18
March Tammy Ho held a group meeting and told the
employees not to attend the Department of Labor meet
ing that the Company had already won that case and
the documents were returned to the Company and that
the Department of Labor compensated Tammy Ho with
$5 million and that she would distribute it to some of the
140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
workers She said if the employees chose to go to the
meeting at the Federal Building she would go also with
her attorney and reporters
Louie attended the Department of Labor meeting on
20 March She observed Tammy Ho standing at the door
of the meeting room and looking inside the room She
and Ho looked at each other The doors were shut when
the meeting started Louie spoke at the meeting and told
the attorneys about her hours of work and told the em
ployees to hand over their letters to the attorneys She
heard Ng tell them about a diary she kept When Louie
exited from the building with other employees she ob
served Tammy Ho and her attorney standing by the en
trance to the building Ho had a piece of paper on which
she was apparently wasting something and Louie passed
within 4 or 5 feet of her
The following day at work according to Louie
Tammy Ho held a meeting of fourth floor employees
She said that employees had gone to the Department of
Labor meeting that two employees she had treated best
had tried to harm her at the meeting and that she knew
everything that was said there Louie did not hear the
remainder of Ho s remarks because Louie went to the
restroom during the course of the meeting
Later Floor Supervisor Kwok Hung Ho came to
Louie s work station and told her he had instructions
from Tammy Ho that Louie was to work 6 hours each
day for the remainder of the week and 4 hours a day
starting the following week
Louie then went to the sixth floor to talk to Tammy
Ho about the reduced hours She asked Ho why her
hours were being cut and Ho said Because you talk too
much at the Department of Labor She added that she
had six witnesses who had told her that Louie had said a
lot of things at the meeting Louie acknowledged that
she spoke up at the meeting and related to Ho what she
said to the Department of Labor attorneys about her
working hours Ho said that from now on she would
work 4 hours each day Louie said that would create dif
ficulty with her livelihood Louie did not return to work
thereafter because of the reduced number of hours Ac
cording to Louie the factory manager Sunny Kwong
was not present during this conversation
Factory Manager Sunny Kwong testified that although
the Respondent ran an ad for employees in a Chinese
newspaper dated Friday 29 March 1985 2 the Company
did not hire any new employees from March through 30
April and in fact was laying off employees during this
period Company records show that the payroll declined
from approximately 200 employees to 145 employees
during this period According to Tammy Ho the reduc
tion in the work force was occasioned by the adverse
publicity of the Department of Labor lawsuit as custom
2 The ad is as follows
Shirts and Trousers Sewing Factory
Our factory is now expanding its space for sewing machines and
hiring a large number of male or female skilled single needle double
needle button holes trimming ironing operators in different depart
ments starting from $3 50 to $4 50 plus over time paid holidays in
surance annual vacation and other benefits
Also hiring clerks and sales controllers Experienced sample
makers Excellent pay
ers were reluctant to send goods to the Respondent for
sewing into finished garments
Kwong testified that between 12 30 to 1 p in on 21
March 1985 Louie came up to his office and said the
fourth floor supervisor had reduced her hours Louie
asked for partial unemployment and Kwong told her to
come back later and talk to Tammy Ho 3
Sunny Kwong testified later after the testimony of
Tammy Ho that he was present on 21 March when
Louie was talking with Tammy Ho According to
Kwong Louie told Ho that the fourth floor supervisor
had reduced her hours because there was not enough
work Ho said the reduced hours would only last for
two weeks and if business picked up Louie would be on
full time again Louie then asked Ho to issue her unem
ployment and Ho refused Louie became very upset and
said If you re not going to issue me unemployment I in
going to make trouble
Tammy Ho testified that on 18 March she held a spe
cial meeting of all the employees at the factory and told
them that work was going to be slow for awhile and that
some workers would be put on part time However she
advised them not to get other jobs because work would
pick up soon Ho acknowledged that employees who are
reduced to part time work will usually quit to take other
jobs According to Ho she mentioned nothing about the
Department of Labor meeting
Ho further testified that on 21 March she held a meet
ing on each floor and said the same thing to each group
of assembled employees The sole purpose of the meet
ings was to advise the employees that work may be
slow Ho testified that she does not recall whether she
said anything at these meetings about the Department of
Labor meeting the previous evening
Regarding her 21 March conversation with Louie Ho
testified that Louie told her what the supervisor said
about reducing Louie s hours and asked if she could get
unemployment Ho said the reduction in hours would
only be temporary and there would soon be more work
Louie insisted on an arrangement to get partial unem
ployment during the time her hours were reduced Ho
said she could not do that and Louie began screaming
and said If you don t help me and I won t help you
and I will make trouble for you The Respondent called
no witnesses other than Kwong above to corroborate
Ho s testimony although Ho testified that there were
about 20 employees within hearing distance
Ho testified that she had received an invitation to the
Department of Labor meeting and that is why she at
tended Regarding the notes she was taking while stand
ing in the hallway and outside the Federal Building Ho
explained that she was taking notes about the way she
had been treated by the Department of Labor attorney
who summoned the guards to escort Ho from the prem
ises
Ho testified that before the Department of Labor
meeting she posted notices about the meeting saying that
she knew about the letter from the Department of Labor
3 At this point in the hearing Respondents attorney said he had no fur
ther questions for Kwong Kwong was then cross examined and his tests
mony was interrupted so that he could review various records
T & W FASHIONS ' 141
and that this was a free country and the employees had a
right to attend or not to attend
Analysis and Conclusions
The events alleged as violations of the Act took place
herein on 20 and 21 March 1985
It is clear and I find that on 20 March 1985 Tammy
Ho stood outside the door of the meeting room at the
Federal Building where numerous employees had con
gregated to provide information pertaining to the De
partment of Labor lawsuit and paper and pencil in hand
appeared to be attempting to hear see and take notes
about what was occurring within the meeting room De
spite the request to leave the premises she returned
shortly thereafter and continued to attempt to observe
the meeting Moreover it is clear that she and her attor
ney Joseph Strabala remained outside the building at
the conclusion of the meeting Ho continued to observe
the employees and take notes and Strabala took flash
photographs of employees who were leaving
The next day at work according to the testimony of
employees Toy Fun Ng and Chau Fung Louie Ho told
the assembled fourth floor employees that she knew ev
erything that had been said at the meeting and accused
employees of attempting to harm her She also said ac
cording to Ng that she would reduce the hours of two
fourth floor employees who were trying to get back at
her
I credit the testimony of employees Ng and Louie I
do not credit the uncorroborated testimony of Tammy
Ho that she said nothing on 21 March to the assembled
employees about the Department of Labor meeting on
the preceding evening or that she does not recall what
she said It is simply implausible that Ho who together
with her attorney stood in the hallway peered through
the doorway to the meeting room and appeared to be
writing down employees names and who thereafter
stood outside the building while she made notes and her
attorney took flash photographs as employees were exit
ing would simply refrain from even referring to the
matter during her meeting with the employees the fol
lowing day
Respondent maintains that Tammy Ho received an in
vitation to the Department of Labor meeting and there
fore was privileged to attend The evidence discloses
that it is highly unlikely that such a letter would have
been sent to her Further while she claimed that she had
such a letter in her possession she did not produce it at
the hearing Finally even if she had received a letter she
was informed by a representative from the Department
of Labor conducting the meeting that she could not
attend and should not remain there Nevertheless Ho re
turned to observe the employees after she had been
asked to leave Ho s purpose for attending the meeting
was made crystal clear as she specifically told her em
ployees the next day that she had been there to hear
what they had to say and was upset with those that co
operated with the Government representatives
It is clear that such conduct namely engaging in sur
veillance of the meeting appearing to write down the
names of employees who attended and taking photo
graphs of them and later specifically advising the em
ployees that the Company was aware of everything that
had been said and that action would be taken against em
ployees who provided information is violative of Section
8(a)(1) of the Act as alleged I so find Aztec Concrete
277 NLRB 1244 (1985) Western Yarns 274 NLRB 525
(1985) Link Mfg Co 281 NLRB 294 (1986)
During the 21 March meeting at Respondents prem
ises Ho threatened two unnamed employees with a re
duction of hours because of their cooperation with the
Department of Labor investigation Such a threat causes
employees to be fearful of losing their jobs because of
engaging in protected concerted activity in furtherance
of their right to receive proper hourly and overtime
wages from their employer and is violative of Section
8(a)(1) of the Act Southern Illinois Petrol 277 NLRB 160
(1985)
Whether Ng and Louie were constructively dis
charged is a more difficult issue First the two discrimin
atees speak only Chinese and testified through an inter
preter who had some difficulty with the dialect spoken
by Chau Fung Louie Further counsel for the General
Counsel and counsel for the Charging Party both of
whom understand and speak Chinese corrected the in
terpreter on several occasions Moreover the alleged un
lawful layoffs of Ng and Louie were made a part of the
Department of Labor s motion for a protective order in
volving the aforementioned lawsuit and the affidavits of
Ng and Louie submitted to the court in the Department
of Labor proceeding are not entirely consistent with
their testimony herein 4 Finally it is significant that al
though many individuals overheard the remarks of
Tammy Ho on various occasions neither of the parties
attempted to call any disinterested employee witnesses in
support of their respective positions
Respondent maintains that Louie s account of the 21
March conversation with Tammy Ho is a total fabrica
tion I have credited Ng who heard all the comments of
Ho at the fourth floor meeting to the effect that two un
named employees on the fourth floor who had attended
the meeting the night before would have their hours cut
Within a short time thereafter the fourth floor supervi
sor Kwok Hung Ho told Ng and Louie that their hours
were to be reduced and attributed this instruction to
Tammy Ho whom the record clearly shows does not
customarily become involved in decisions of this nature
Louie on lengthy examination adhered to her testimo
ny regarding the events of 21 March Further the testi
mony of Sunny Kwong is highly suspect Louie testified
that Kwong was not present during the conversation be
tween Louie and Tammy Ho and Kwong testified on
direct examination without even mentioning that he was
present Then on resuming the witness stand following
the testimony of Tammy Ho he maintained that he did
witness the conversation and corroborated Ho s testimo
ny in its entirety I do not credit Kwong s testimony Fi
nally I was not impressed with the abbreviated and im
probable testimony of Tammy Ho and her alleged failure
of recollection concerning her meetings with the em
4 On careful consideration I conclude that the inconsistencies which
are perhaps the result of translation and interpretation difficulties do not
compromise the reliability of the employees testimony
142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees She is not credited For the foregoing reasons I
credit Louie s account of her conversation with Tammy
Ho who admitted I find that Louie s hours were being
reduced because of her participation at the meeting
The various business records introduced into evidence
are not helpful To be sure there were about 60 employ
ees laid off during the period in question However
about 140 employees were not laid off And as noted
above Supervisor Kwok Hung Ho did not recall what
he said to Ng and Louie about the matter and gave no
reason for specifically selecting two longtime employees
for reduction of their normal working hours rather than
two other employees
On the basis of the foregoing I find that a preponder
ance of the credible record evidence supports the com
plaint allegation that the Respondent reduced the hours
of Ng and Louie by 50 percent for an indefinite period
of time causing them to quit their jobs and seek employ
ment elsewhere and that the motive for such treatment
was the participation by Ng and Louie in the Depart
ment of Labor meeting where they sought to assist and
provide information to that Agency Under such circum
stances the two employees were constructively dis
charged as alleged in violation of Section 8(a)(1) of the
Act
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2) (6) and (7) of the
Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 The Respondent has violated Section 8(a)(1) of the
Act as alleged
THE REMEDY
Having found that the Respondent violated and is vio
lating Section 8(a)(1) of the Act I recommend that it be
required to cease and desist therefrom and from in any
other manner interfering with restraining or coercing its
employees in the exercise of their rights under Section 7
of the Act Moreover Respondent shall be required to
post an appropriate notice attached as Appendix The
notice shall be both in English and Chinese as the record
shows that virtually all of the Respondents employees
will not be able to comprehend an English notice
Having found that Respondent constructively dis
charged Toy Fun Ng and Chau Fung Louie it is recom
mended that Respondent offer them immediate reinstate
ment to their former positions without loss of seniority
or other benefits and make them whole with interest for
any loss of pay they may have suffered as a result of the
discrimination against them Backpay is to be computed
in the manner prescribed in F W Woolworth Co 90
NLRB 289 (1950) and Florida Steel Corp 231 NLRB
651 (1977) See generally Isis Plumbing & Heating Co
139 NLRB 716 (1962)
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed5
ORDER
The Respondent T & W Fashions Inc San Francis
co California its officers agents successors and assigns
shall
1 Cease and desist from
(a) Engaging in surveillance of employees protected
concerted activity in furtherance of wage and hour
claims before the Department of Labor
(b) Telling employees that the Company is aware of
everything that has been said at the meeting with repre
sentatives of the Department of Labor
(c) Taking photographs or appearing to take photo
graphs of employees who attended the Department of
Labor meeting
(d) Telling employees that they will be laid off or oth
erwise discriminated against because they provided infor
mation to the Department of Labor
(e) Discharging or constructively discharging employ
ees for cooperating with and providing information to
the Department of Labor
(f) In any other manner interfering with restraining
or coercing its employees in the exercise of their right to
engage in concerted protected activity for purposes of
mutual aid or protection
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer full reinstatement to employees Toy Fun Ng
and Chau Fung Louie and make them whole for any loss
of earnings they may have suffered in the manner set
forth in the remedy section of this decision
(b) Post at its place of business in San Francisco Cali
forma copies of the attached notice marked Appen
dix 6 The notice shall be both in English and Chinese
Copies of the notice signed by Respondents representa
tive shall be posted by it in conspicuous places includ
ing all places where notices to employees are customan
ly posted Reasonable steps shall be taken by Respondent
to ensure that said notices are not altered defaced or
covered by any other material
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply
5 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board